Callow v Police
[2014] SASC 8
•24 January 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CALLOW v POLICE
[2014] SASC 8
Judgment of The Honourable Justice Vanstone
24 January 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for extension of time in which to appeal against sentence - applicant found guilty of two counts of aggravated assault, one count of aggravated assault causing harm, driving while disqualified, five counts of contravening a bail agreement and five counts of contravening an intervention order - applicant pleaded guilty to one count of property damage - magistrate sentenced applicant to nine months imprisonment, with one month to be served in custody and remaining eight months suspended upon the applicant entering into a bond of $1,000 - whether magistrate should have suspended whole sentence.
Held: extension of time refused - proposed grounds of appeal unmeritorious - applicant fortunate in magistrate suspending all but one month of sentence.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s38; Criminal Law Consolidation Act 1935 (SA) s 20, s 85; Motor Vehicles Act 1959 (SA) s 91; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31; Bail Act 1985 (SA) s 17, referred to.
R v Carr (2008) 101 SASR 13, applied.
CALLOW v POLICE
[2014] SASC 8Magistrates Appeal
Criminal
VANSTONE J: This is an application for an extension of time within which to appeal against a sentence imposed by a magistrate following a trial and findings of guilt on a series of 15 offences committed between October 2011 and September 2012. On an information dated 15 August 2012, the applicant was charged with two counts of aggravated assault, one of those causing harm, damaging property and driving while disqualified. On an information dated 3 October 2012, the applicant was charged with five counts of contravening a bail agreement, five counts of contravening an intervention order and aggravated assault. The assaults were aggravated by the fact that the victim was the applicant’s wife. The applicant pleaded guilty to one count of damaging property on the first day of the trial on all counts.
Utilising section 18A of the Criminal Law (Sentencing) Act 1988 the magistrate imposed a single term of imprisonment for the 15 offences. He took into account that the applicant had spent six days in custody after arrest and another three months on home detention bail. The head sentence imposed was nine months imprisonment. Pursuant to s 38(2) of the Criminal Law (Sentencing) Act, the magistrate directed that the applicant serve one month in prison and suspended the remaining eight months upon the applicant entering into a good behaviour bond of $1,000 for the duration of the sentence.
The proposed appeal against that sentence is on the ground that the magistrate erred in failing to fully suspend the sentence. In relation to the application for an extension of time within which to appeal, it is apparent that the Notice of Appeal was lodged three and a half months after sentence was imposed.
Background
The offences occurred over a period of some months, in a context of domestic violence against the applicant’s estranged wife, “V”. The following table summarises the offences in chronological order. It will be noted that the conduct giving rise to the breaches of bail was also in contravention of the intervention order. Thus, there were five occasions of contravening conduct rather than ten.
Offence
Date of offence
Maximum penalty
Facts
Aggravated assault – s 20(3)(b) Criminal Law Consolidation Act 1935 (CLCA) (Count 11, information 2)
17/10/2011
3 years imprisonment
The applicant forcefully kicked V’s leg whilst she was in bed causing V to fall out of bed, resulting in grazing and bruising to her thigh.
Aggravated assault – s 20(3)(b) (CLCA) (Count 1, information 1)
24/07/2012
3 years imprisonment
V was curled into a ball on the couch, recoiling from the applicant. The applicant stood over her, put his face within a few centimetres of hers and punched the couch hard, a short distance from her head.
Damaging property – s 85(3) (CLCA) (Count 2, information 1)
24/07/2012
10 years imprisonment
The applicant swept framed documents and ornaments from the top of the display unit, causing them to smash.
Aggravated assault causing harm – s 20(4)(b) (CLCA) (Count 3, information 1))
24/07/2012
4 years imprisonment
Whilst V remained curled up on the couch, the applicant raised his leg and stomped on her right ankle, causing her pain and bruising.
Driving while disqualified – s 91(5) Motor Vehicles Act 1959
(Count 4, information 1)
24/07/2012
6 months imprisonment
Contravening an intervention order – s 31(2) Intervention Orders (Prevention of Abuse) Act 2009
Count 1, information 2)
7/09/2012
–10/09/2012
2 years imprisonment
The applicant left a voicemail message for V on her mobile telephone.
Contravening a bail agreement – s 17(1) Bail Act 1985
(Count 2, information 2)
7/09/2012
-10/09/2012
$10,000 or 2 years imprisonment
The applicant left a voicemail message for V on her mobile telephone.
Contravening an intervention order – s 31(2) Intervention Orders Act
(Count 3, information 2)
11/09/2012
2 years imprisonment
The applicant left a voicemail message for V on her mobile telephone.
Contravening a bail agreement – s 17(1) Bail Act
(Count 4, information 2)
11/09/2012
$10,000 or 2 years imprisonment
The applicant left a voicemail message for V on her mobile telephone.
Contravening an intervention order – s 31(2) Intervention Orders Act
(Count 5, information 2)
15/09/2012
2 years imprisonment
The applicant left a voicemail message for V on her mobile telephone.
Contravening a bail agreement – s 17(1) Bail Act
(Count 6, information 2)
15/09/2012
$10,000 or 2 years imprisonment
The applicant left a voicemail message for V on her mobile telephone.
Contravening an intervention order - s 31(2) Intervention Orders Act
(Count 7, information 2)
23/09/2012
2 years imprisonment
The applicant left a voicemail message for V on her mobile telephone.
Contravening a bail agreement – s 17(1) Bail Act
(Count 8, information 2)
23/09/2012
$10,000 or 2 years imprisonment
The applicant left a voicemail message for V on her mobile telephone.
Contravening an intervention order - s 31(2) Intervention Orders Act
(Count 9, information 2)
24/09/2012
2 years imprisonment
The applicant spoke with V on her mobile telephone.
Contravening a bail agreement – s 17(1) Bail Act
(Count 10, information 2)
24/09/2012
$10,000 or 2 years imprisonment
The applicant spoke with V on her mobile telephone.
Analysis
This is not a case where the applicant asserts that any error made by the magistrate had any impact on the sentence imposed.
Because there were so many offences for which penalty had to be imposed and because each offence bore a maximum penalty of imprisonment, the area of discretion available to the magistrate was a wide one. It is not contended that a penalty of something less than imprisonment was dictated, or that the final head sentence of nine months imprisonment was not available to the magistrate. While counsel for the respondent was inclined to the submission that it was a low sentence having regard to the nature and extent of the offending involved, I would not necessarily agree, bearing in mind that the applicant was 35 years of age and had no prior convictions other than for traffic offences and that there were other matters of a personal nature in his favour.
The essence of the argument on appeal is that the same mitigatory factors which led the magistrate to suspend all but one month of the sentence should have led him to find good reason to suspend the entirety of it.
Principal among those factors were that the applicant was running a successful business which relied almost exclusively on his own input and which involved work for client customers of an ongoing nature; and that earnings from this work were enabling the applicant to pay significant amounts of child support in relation to his three children. Then, there were references presented to the magistrate attesting to the high regard in which the applicant was held. The magistrate noted that the convictions would cause the loss of the applicant’s security agent’s licence, amounting to a penalty in itself.
This Court has made it clear that where breaches of an intervention order occur against a history of domestic violence deterrence is a very important consideration in determining sentence: R v Carr (2008) 101 SASR 13 at [31] per Anderson J, Doyle CJ and Bleby J agreeing. In this case the magistrate accepted that the effect upon V of the applicant’s course of conduct had been marked.
In my view such was the repetitive, protracted and serious nature of this course of offending – including as it did contumacious disregard of court orders – that the applicant was fortunate in the magistrate suspending all but one month of the sentence he imposed. In my opinion, only by giving marked weight to the factors of mitigation I have mentioned could the magistrate have reached that merciful position. I would add that the magistrate was in a good position to assess both the seriousness of these offences as well as the applicant’s character and the manner in which he had conducted himself at trial.
I find that the proposed appeal is without merit. It was plainly within the magistrate’s discretion to impose a sentence involving a period to be served.
Extension of time
The application for an extension of time within which to appeal occurs against the following background.
When the applicant was originally sentenced on 15 August 2012 counsel then appearing immediately sought bail, undertaking that an appeal would be lodged expeditiously. The sentencing magistrate then granted bail pending appeal. The first appeal notice was lodged on 30 August. However, on 23 October the applicant filed a notice of discontinuance in relation to that appeal and subsequently bail was revoked on 21 November. Then, on 28 November 2013 the applicant filed a second notice of appeal, being the one before the Court. Bail was again granted, on 2 December. Consequently twelve days of the one months imprisonment was served.
There is no affidavit material to explain this sequence of events or to justify the grant of an extension of time. Members of the profession should note that this Court would ordinarily expect affidavit evidence to substantiate submissions in support of an extension of time. Since I have determined that this appeal would fail on its merits, the lack of such an affidavit will have no impact. Generally speaking though, I would expect that the fact that an earlier appeal had been filed within time, but then abandoned, could only tell against the grant of an extension of time subsequently.
Conclusion
I have heard the arguments in support of an appeal as if an appeal were on foot. In my view the sentence imposed was well within the range of sentences available and the decision to suspend all but one month of it was merciful. The sentence was imposed against the background of careful and extensive remarks in justification of the course taken.
Because I consider that the appeal would fail I refuse the application for an extension of time.
The order I make is:
1.the application for an extension of time within which to appeal is refused.
I note that it is agreed by counsel that the applicant served twelve days of the sentence imposed between 21 November and 3 December 2013 before being released on bail pending appeal.