COOMBS v Police - [2004] SASC 386

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COOMBS v POLICE
Judgment of The Honourable Justice Besanko
30 November 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence imposed by a magistrate - appellant convicted of assaulting a family member and having, without reasonable excuse, contravened on two occasions a term or condition of a bail agreement entered into by him - where the appellant was sentenced in respect of the assault to a period of imprisonment of 11 months with the appellant to serve a period of 10 weeks in prison with the remainder of the period of imprisonment suspended - where the appellant was sentenced in respect of the breaches of the bail agreement to a period of 10 weeks imprisonment to be served concurrently with the 10 week sentence imposed for the assault - where the appellant pleaded guilty at the first available opportunity and co-operated with the police - whether the Magistrate made allowance for the pleas of guilty and for the appellant's co-operation with the police - whether the sentence imposed by the Magistrate was manifestly excessive - appeal dismissed.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 39(1); Criminal Law (Sentencing) Act 1998 s 19, s 38(2a), s 19A; Bail Act 1985 s 17, referred to.
R v Place (2002) 81 SASR 395; Mather v Police (2002) 222 LSJS 503, considered.

COOMBS v POLICE
[2004] SASC 386
Magistrates Appeal

BESANKO J: This is an appeal from sentences imposed by a Magistrate. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991. The appellant submits that the sentences imposed by the Magistrate are manifestly excessive.
The appellant was charged on information with the offence of assaulting a family member of the appellant contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (“CLCA”). The particulars of the alleged offence were that on 28^th July 2004 the appellant assaulted Janine Williams, a family member of the appellant. The maximum penalty for an offence under s 39 of the CLCA is a term of imprisonment not exceeding three years if at the time of the commission of the offence the victim was a family member of the offender. The maximum penalty of imprisonment which may be imposed by the Magistrates Court constituted by a magistrate is a sentence of imprisonment that does not exceed two years (s 19 of the Criminal Law (Sentencing) Act 1998 (“CLSA”)).
The appellant was also charged on complaint with having, without reasonable excuse, contravened on two occasions a term or condition of a bail agreement entered into by him contrary to s 17 of the Bail Act 1985 (“BA”). The particulars of these offences were that on 31 July 2004 at Port Willunga in the State of South Australia the appellant without reasonable excuse contravened a term or condition of a bail agreement entered into by him at Christies Beach on 29^th July 2004, and on 1^st August 2004 at Port Willunga in the said State the appellant without reasonable excuse contravened a term or condition of a bail agreement entered into by him at Christies Beach on 29^th July 2004. The maximum penalty for the offence of, without reasonable excuse, contravening or failing to comply with a term or condition of a bail agreement is a fine of $10,000.00 or imprisonment for two years.
The appellant was also charged on two complaints with various offences under the Road Traffic Act 1961 and the Motor Vehicles Act 1959, but there is no appeal against the sentences passed in relation to those offences and it is unnecessary to set out the details of those offences.
The appellant pleaded guilty to the offence under s 39 of the CLCA and to the two breaches of s 17 of the BA. The appellant was sentenced on 9^th September 2004. Before that date he had spent six weeks in custody.
In relation to the offence under s 39 of the CLCA, the Magistrate sentenced the appellant to a period of imprisonment of 11 months. The Magistrate directed that the appellant serve a period of 10 weeks of the imprisonment in prison, and as to the remainder of the period (ie., eight months and two weeks) he suspended the period on condition that the appellant enter into a bond subject to a number of conditions. The details of the conditions are not presently relevant. In other words, the Magistrate exercised the power contained in s 38(2a) of the CLSA. The Magistrate also made a restraining order under s 19A of the CLSA.
In relation to the two breaches of the BA the Magistrate sentenced the appellant to a period of 10 weeks imprisonment to be served concurrently with the 10 week sentence imposed for the offence under s 39 of the CLCA.
I turn now to examine the circumstances surrounding the offending and the appellant’s criminal record. The victim of the assault was Janine Williams of 44 Zephyr Terrace, Port Willunga (“the premises”). She lived at that address with her nine year old son and with the appellant who had been her partner for approximately seven years. At about 1pm on Wednesday, 28^th July 2004, the victim was at home with the appellant. An argument developed between them, and during the argument, the victim states that the appellant was “getting in her face” so she pushed him away. The appellant then struck the victim once to the face with his right hand. The victim went outside, however she was followed by the appellant so she returned to the house and called the police. She then waited for the police in front of a house which was several houses away from the premises. The police attended the premises at about 1.30 pm and they observed blood coming from the victim’s left nostril and a small cut on the left side of her nose. The victim complained of a headache and was visibly upset. The victim told the police that as a result of being struck in the face she had a headache and her nose and face were sore. An ambulance attended but the victim declined to go to hospital. The police then attended the premises and they located the appellant. He had skin missing from the middle knuckle of his right hand and he was unsteady on his feet. He was drinking wine from a plastic water bottle.
The appellant was arrested and taken to Christies Beach Police Station where he was interviewed and charged. The appellant told the police that he had been home alone with the victim and that at about 10.30 am an argument had occurred during which the victim slapped the appellant two or three times on the face. The appellant said that he then pushed the victim away with a open hand to the face causing her to fall over. The appellant denied punching the victim. He said that he turned away and did not see if the victim was injured. The appellant told the police that he lost the skin from his knuckle because he had punched the bedroom door in anger. The appellant told the police that he was an alcoholic and had been drinking wine from about 8am that day. He told police he had consumed six plastic drink bottles of wine and he admitted that he was drunk at the time of the assault.
On 29^th July 2004 the appellant entered into a bail agreement at the Christies Beach Magistrates Court. It was a condition of the bail agreement that the appellant not make contact or communicate with the victim, Janine Williams, and not attend the premises.
At about 10.20 am on 31^st July 2004 the victim was at the premises when she heard the shed door open. A person then walked around to the front of the premises and thumped loudly on the front bedroom window. The victim heard a male voice call out, “Are you in there?” “Are you in there slut?” The victim recognised the voice as that of the appellant. The victim contacted the police.
On Sunday, 1^st August 2004, the victim was at the premises when she heard a knock on the front door and a male voice call out, “Janine, come out the front”. Once again, the victim recognised the voice as that of the appellant. She looked out the window and saw him standing near the front lounge window. He then walked to the rear of the premises and tried to engage her in conversation. The victim contacted the police again.
The police attended the premises on both occasions. The appellant was not present on either occasion. However, when he was interviewed by the police on 2^nd August 2004, he admitted that he had gone to the premises on both occasions and that he was aware that this was a breach of his bail.
The appellant has a criminal record. On 27^th September 1994 the appellant was convicted of the offence of indecent assault which was committed on 13^th January 1994. He was sentenced to a period of six months imprisonment suspended upon him entering into a three year bond. On 6^th March 2000 the appellant was convicted of the offence of escaping from custody which was committed on 30^th July 1999, and he was sentenced to a period of imprisonment of two months. On 19^th June 2002 the appellant was convicted of the offence of failing to comply with a bail agreement which was committed on 16^th April 2000. He was discharged without further penalty. On 30^th September 2002 the appellant was convicted of the offence of assault occasioning actual bodily harm which was committed on 13^th March 2000 and he was sentenced to 13 months imprisonment with a non parole period of seven months commencing on 20^th May 2002. Although the date is unclear on the evidence before me, it seems that the appellant has another conviction for failing to comply with a bail agreement. As with the previous offence of this nature, he was discharged without further penalty.
I turn now to the issues on the appeal. Counsel for the appellant confined himself to one main submission. He submitted that the appellant had pleaded guilty at the first available opportunity. That would appear to be the case. He also submitted that the appellant had fully co-operated with the police, and had made appropriate admissions. The appellant submitted that the Magistrate had not taken those matters into account. The appellant referred to two paragraphs in the remarks on sentence of the Magistrate. Those paragraphs read as follows:
“For an assault of these dimensions on your partner I would have fixed a period of imprisonment in the order of 16 months. In this instance, however, I think the better course, and frankly I can see nothing in the case that reflects any reason for credit in your favour, ought to be dealt with in another way.
In relation to the assault, I convict you. I note that you have served a period of six weeks in custody. I, therefore, sentence you to a period of 11 months imprisonment. I reduce that on certain conditions. I would have reduce that to a period of four months or 16 weeks, however, taking into consideration the fact that you have already spent six weeks in custody, and for which I give you credit, I order your release after you serve a further period after today of 10 weeks. The balance of eight months and two weeks is suspended on condition that you enter into a bond with the following conditions:
…”
It was incumbent upon the Magistrate to make allowance for the pleas of guilty and for the fact that the appellant co-operated with the police. The extent of the credit allowed should be identified although the failure to do so is not an error of principle nor, in itself, is it a ground for interference with a sentence (R v Place [2002] SASC 101; (2002) 81 SASR 395 at [80-83]).
It is not entirely clear from the remarks set out above why the Magistrate reduced his starting point from 16 months to 11 months. Having regard to the whole of his remarks he either gave the appellant credit for the pleas of guilty, and cooperation, or he gave credit for that reason and because the appellant had spent six weeks in custody. Either way he gave a substantial discount for the pleas of guilty and cooperation. In fact, I think the better view of the approach adopted by the Magistrate is that advanced by counsel for the respondent, namely, that he allowed a reduction of five months for pleas of guilty and cooperation and brought the six weeks spent in custody to account in reducing the period of imprisonment to be served in prison from 16 weeks to 10 weeks.
The Magistrate was clearly aware that the appellant had pleaded guilty to the various matters. The Magistrate did not specifically say that he was reducing the sentence by reason of those pleas. However, there were only two possible reasons for reducing the starting point and they are the two reasons which I have previously identified.
With respect, the Magistrate might have expressed himself more clearly but having regard to his remarks as a whole and the circumstances of the case I am satisfied that he made a substantial allowance for pleas of guilty and cooperation and that the allowance cannot be said to be inappropriate.
In my opinion, having regard to the appellant’s record, a period of imprisonment of 11 months, although at the upper end of the appropriate range, is not manifestly excessive. The appellant did not advance a separate argument in relation to the sentence imposed for the breaches of the bail agreement in the sense that even if I upheld the sentence imposed in relation to the offence under s 39 of the CLCA the sentence imposed for the breaches of the bail agreement were manifestly excessive.
In Mather v Police [2002] SASC 364; (2002) 222 LSJS 503 the Chief Justice said:
“As I have said, the role of the Appeal Court in such a case is not to determine for itself what sentence it would have imposed or whether it would have suspended the sentence, but rather to determine whether there has been an error in the Magistrate’s sentencing discretion, and while I regard the sentence as a heavy one, I cannot say that the Magistrate erred”.
The appellant has not identified an error which would justify the intervention of this Court and I dismiss the appeal.