Carter v POLICE - [2011] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CARTER v POLICE
[2011] SASC 199
Judgment of The Honourable Justice Vanstone
30 November 2011
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - appellant pleaded guilty in the Magistrates Court to aggravated assault - appellant spat in the face of an ambulance officer while being placed in ambulance - she was sentenced to eight months imprisonment, suspended - whether magistrate failed to take into account the appellant's mental health at the time of the offending and her participation in a Magistrates Court Diversion Program.
Held: appeal dismissed.
Mental Health Act 1993 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 11, s 19C, s 10, referred to.

CARTER v POLICE
[2011] SASC 199
Magistrates Appeal

VANSTONE J: Sharon Deanne Carter appeals against the severity of a sentence of eight months imprisonment, suspended, imposed in the Magistrates Court for an offence of aggravated assault.
The appellant and another had been drinking and there was some sort of altercation. The appellant suffered a self inflicted injury. An ambulance was called and the two female officers were placing the appellant into the ambulance so that she might be taken to hospital. She spat into the face of one of them. There was a fear that the victim might have been infected with hepatitis C, but fortunately that was not the case. The maximum penalty for an assault, which is aggravated, is three years imprisonment.
Background
The offence occurred on 21 August 2009. The delay in its processing occurred because the appellant was referred into the Magistrates Court Diversion Program. The basis of her acceptance into that program was her diagnosis of post-traumatic stress disorder and polysubstance abuse. The sentencing magistrate was sitting in a division of the Court referred to on the Certificate of Record as the “Adelaide Mental Impairment Court”. He had before him reports of officers working within that program.
The appellant is 38 years of age. She has a lengthy history of appearances before the courts, including for offences of violence. At the time of the offence she was on parole after serving part of a sentence arising from driving offences, resisting arrest and a breached bond. Her unexpired balance of parole at that time was seven months and seventeen days. Very shortly before the offence she had completed a period of home detention prison.
In sentencing, the magistrate said that he had considered all sentencing options not involving imprisonment, but had reached the opinion imprisonment was the only appropriate sentence. He took a starting point of twelve months imprisonment and reduced it to eight months on account of the appellant’s early plea of guilty. It is to be noted that the appellant claimed that she had no recollection of the event. If so, she was necessarily acting on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carter v POLICE

Details

AGLC: Carter v POLICE [2011] SASC 199
Case: [2011] SASC 199
Decision Date: 30 November 2011

CaseChat Overview and Summary

In the case of Carter v Police, the appellant appealed against the sentence imposed upon her by the Magistrates Court. The appellant had pleaded guilty to an offence of aggravated assault, having spat in the face of an ambulance officer while being placed in an ambulance. The appellant was sentenced to eight months imprisonment, which was suspended. The appeal centred on whether the magistrate failed to take into account the appellant's mental health at the time of the offending and her participation in a Magistrates Court Diversion Program.

The legal issues the court was required to decide were whether the magistrate adequately considered the appellant's mental health and emotional stress at the time of the offence and whether the magistrate sufficiently weighed the appellant's completion of the Magistrates Court Diversion Program in the sentencing process. The appellant argued that the sentence of imprisonment was not warranted given her mental health issues and the level of emotional stress she was experiencing at the time of the offence.

The court concluded that the appeal was finely balanced but ultimately found that the sentencing process did not miscarry. The court found that the magistrate had considered all sentencing options and appropriately weighed the circumstances of the offence and the appellant's mental health. The court noted that the appellant had a lengthy history of appearances before the courts, including for offences of violence, and that the sentence imposed was reduced to eight months on account of the appellant’s early plea of guilty. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant and another had been drinking and there was some sort of altercation. The appellant suffered a self inflicted injury. An ambulance was called and the two female officers were placing the appellant into the ambulance so that she might be taken to hospital. She spat into the face of one of them. There was a fear that the victim might have been infected with hepatitis C, but fortunately that was not the case. The maximum penalty for an assault, which is aggravated, is three years imprisonment.Background The offence occurred on 21 August 2009. The delay in its processing occurred because the appellant was referred into the Magistrates Court Diversion Program. The basis of her acceptance into that program was her diagnosis of post-traumatic stress disorder and polysubstance abuse. The sentencing magistrate was sitting in a division of the Court referred to on the Certificate of Record as the “Adelaide Mental Impairment Court”. He had before him reports of officers working within that program. The appellant is 38 years of age. She has a lengthy history of appearances before the courts, including for offences of violence. At the time of the offence she was on parole after serving part of a sentence arising from driving offences, resisting arrest and a breached bond. Her unexpired balance of parole at that time was seven months and seventeen days. Very shortly before the offence she had completed a period of home detention prison. In sentencing, the magistrate said that he had considered all sentencing options not involving imprisonment, but had reached the opinion imprisonment was the only appropriate sentence. He took a starting point of twelve months imprisonment and reduced it to eight months on account of the appellant’s early plea of guilty. It is to be noted that the appellant claimed that she had no recollection of the event. If so, she was necessarily acting on the strength of statements by the ambulance officers. In that light, the generous reduction she was given for the plea of guilty was justified. The magistrate found that there was good reason to suspend the sentence. That decision was taken despite the fact that the appellant had previously had the benefit of a number of suspended sentences. It would appear that good reason was found in the state of severe anxiety in which the appellant was at the time of the offence. In fact she was detained under the Mental Health Act 1993 (SA) for three days immediately following her arrival at hospital. She has a marked history of mental health issues. There were particular stressors in the period immediately prior to the offending, which included a recent miscarriage, the break up of her relationship and an attempt at suicide.Arguments on the appeal Counsel for the appellant conceded that the offence was a serious one and, in other circumstances, could properly attract a sentence of imprisonment. However, it was argued that the magistrate failed to give appropriate weight to the fact that the offence was born of the appellant’s anxiety and the level of emotional stress under which she was operating. Counsel also submitted that the magistrate gave insufficient weight to the fact that the appellant had completed a “Mental Health Diversion Program”, even if the final report as to the outcome was rather qualified. It was put that a penalty of imprisonment was not, in all the circumstances, warranted, particularly having regard to s 11 of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) which limits the circumstances in which imprisonment can be imposed, and that another lesser penalty would have adequately reflected the appellant’s culpability and circumstances.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The case is finely balanced, but, in the end, I am not persuaded that the sentencing process miscarried. Conclusion The appeal will be dismissed.

Ratio Decidendi

Legal Principle Established

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