COMPTON v POLICE

[2012] SASC 144

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

COMPTON v POLICE

[2012] SASC 144

Judgment of The Honourable Justice Kelly (ex tempore)

8 August 2012

MAGISTRATES - APPEALS 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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - OTHER PARTICULAR CASES

Appeal against sentence - appellant convicted after trial of one count of aggravated assault contrary to s 23 of the Criminal Law Consolidation Act 1935 (SA) - appellant sentenced to six months immediate imprisonment - complaint on appeal that the sentence was manifestly excessive and that the Magistrate ought to have suspended all or part of the term of imprisonment.

Held: Sentence not manifestly excessive - victim was a child and appellant was at the time of the offending the victim's stepfather - assault was deliberate and prolonged - element of sadism to the offending - victim's injuries were serious - appellant demonstrated no insight or remorse.

Held: Appeal allowed – exercise of discretion to suspend miscarried - appellant was prior to the offending a man of good character - appellant had been gainfully employed for the best part of his life - appellant had not offended since commission of offence - order of the Magistrate sentencing the appellant to an immediate term of imprisonment set aside - sentence of six months confirmed but wholly suspended upon appellant agreeing to enter into a bond to be of good behaviour.

Criminal Law Consolidation Act 1935 (SA) s 23; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.

COMPTON v POLICE
[2012] SASC 144

Magistrates Appeal:   Criminal

1. KELLY J (ex tempore):    This is an appeal against a sentence of imprisonment imposed by a magistrate on 1 June 2012. On 3 November 2011, the appellant was convicted after trial of one count of aggravated assault contrary to s 23 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is three years. The assault was committed in December 2006 or January 2007 upon a boy who I will name as B. The circumstances of aggravation were that B was the child of the appellant’s spouse at that time. The appellant was also charged with a second count of aggravated assault in relation to B’s elder brother. The magistrate acquitted the appellant of that second count.

2. The appeal against the conviction was dismissed in this Court on 2 March 2012.

3. There are two issues on this appeal. The first is whether the sentence of six months imprisonment imposed was manifestly excessive. The second is whether the court erred in failing to suspend that sentence.

4. The circumstances in which the offence was committed were indeed very serious. The victim was a child and the appellant at that time was the stepfather of the boy. The appellant’s assault upon the child, as Ms Pienaar has pointed out, was deliberate and prolonged. There was, in my view, also an element of sadism in the behaviour of the appellant in that he used a weapon fashioned by himself by tying kitchen utensils to a broom and repeatedly hitting the child. The appellant apparently thought the incident was amusing as he was laughing during the assault.

5. The injuries sustained by the victim were indeed serious. He could not sit down without pain for over a week after the incident. A photograph of the boy taken within a week or so of the incident clearly demonstrates the severity of the injuries to the boy’s buttocks.

6. I am concerned by the appellant’s apparent attitude in continuing to deny this offence, notwithstanding his conviction at trial and the fact that his conviction appeal was dismissed over five months ago. He continues to maintain that all which occurred during the incident the subject of the charge was that he disciplined the child by smacking him three times on the bottom. I note that the suggestion that the discipline was imposed with the concurrence of the boy’s mother was denied by his mother at trial and the mother denied there was ever any agreement between them for disciplining the boy in that way.

7. The offending has had a significant impact upon B, as the victim impact statement tendered at sentencing demonstrated.

8. The magistrate gave careful consideration to all of these matters. She accepted that the appellant is a man of 45 years of age without any prior history of offending and that for his adult life he has been gainfully employed in various positions, the most recent being at the Tanunda branch of the ANZ Bank. The magistrate accepted that the offending had occurred a long time ago and that the appellant is now in a new relationship. She noted the reference from his new partner who has spoken about the appellant in glowing terms with particular reference to the care of her two young children.

9. Her Honour accepted that a conviction in the matter could affect the appellant’s employment. The submission was made that, if convicted, he was likely to lose his position, although I infer from Mr White’s submissions today that the correct position is that if the appellant is absent from work for a lengthy period due to imprisonment that that would result in his loss of employment.

10. Nevertheless, taking into account all these matters, her Honour rejected a submission that was put to her at sentencing that she ought to exercise the discretion given to her by s 16 of the Criminal Law (Sentencing) Act 1988 (SA) not to record a conviction. Wisely that complaint was not pursued on appeal.

11. Her Honour went on to say that: ‘For an offence of this kind there is a need for general deterrence.’ She took the view that in light of that need a sentence of immediate imprisonment was required.

12. She declined to suspend the sentence or any portion of it. I acknowledge that the issues facing the magistrate in sentencing the appellant were very difficult. On the one hand, her Honour was faced with a very serious offence committed by a person who stood in a position of trust in relation to an eight year old boy. Further, on the evidence which was accepted by the magistrate this was not an isolated instance but occurred in the context of a background of the appellant imposing discipline on the boy which the magistrate correctly characterised as at best bullying behaviour. As I have said, there is a disturbing element of sadism in the proven behaviour of the appellant at trial.

13. The appellant was therefore not entitled to any leniency for a guilty plea or for any demonstration of remorse. On the contrary, it is plain that he continues to deny any inappropriate behaviour in relation to B. That is plainly a matter which concerned the magistrate.

14. For all of those reasons I consider that the complaint that the sentence of six months imprisonment is manifestly excessive cannot be sustained. In my view the magistrate was correct to note that general deterrence is very important in the circumstances of this case. I would add, in light of the attitude of the appellant, that personal deterrence is also an important factor to be considered.

15. Nevertheless, it is a very serious matter to impose an immediate sentence of imprisonment on a person of the appellant’s age and background.  In particular, the fact that he was prior to this a man of good character, and has for the best part of his life, notwithstanding a serious injury suffered early in life, managed to be gainfully employed.

16. It follows that, while there is plainly a need for general and personal deterrence, those considerations in my view should in this case yield.  The appellant has demonstrated that but for the unfortunate offending during a time when he was entrusted with the care of B and his brother he has not offended again in a period of almost six years since the commission of that offence.

17. The fact that there has been some delay in resolving this matter, caused initially by the late complaint, the appellant’s not guilty plea and the subsequent appeal against conviction, is not a matter which should be held against the appellant. I do not suggest that the magistrate did that. However her Honour did accord it very minimal weight in the sentencing because in her view most of the delay was attributed to the appellant’s own actions.

18. Whilst some of that may be literally true, nevertheless I am impressed by the fact that a period of nearly six years has now elapsed since this offending. There has been no suggestion of any subsequent offending on the appellant’s part.

19. I was told on the hearing of this appeal that the appellant has served approximately five days of the sentence imposed before he was released on bail pending the outcome of the appeal. Hopefully, having now experienced the prison doors actually close behind him, even for a short period, that experience will no doubt reinforce in the appellant’s mind the need for him to continue to behave appropriately around the children of his new partner.

20. In my view, taking into account all of the circumstances surrounding the commission of this offence, but in particular the personal antecedents of the appellant, I am of the view that her Honour did accord too little weight to the previous good character of the appellant. In my view there is, as Mr White submitted, scope for a merciful approach to be taken when considering the issue of suspension in the case of a first offender and a first offender who has managed to reach the age of 45 without transgressing the criminal law.

21. For these reasons I am of the view that the exercise of the discretion to suspend did miscarry and that it is appropriate that I now resentence the appellant. Taking into account all of the factors that I have referred to I make the following orders:

    1The appeal is allowed.

    2The order of the magistrate sentencing the appellant to an immediate term of six months imprisonment is set aside.

    3The sentence of six months is confirmed; however, that sentence is suspended upon the appellant agreeing to enter into a bond to be of good behaviour for a period of two years. That bond is to be in the appellant’s own recognisance in the sum of $1000.

    4Respondent to pay the appellant’s costs fixed at $250.