Courtney v Police No. Scciv-03-141

Courtney v Police
[2003] SASC 76
Magistrates Appeal (Ex tempore)

DUGGAN J. The appellant pleaded guilty in the Magistrates Court to an offence of assault occasioning actual bodily harm. The prosecution alleged that on 14 June 2002 the appellant assaulted Fiona Giles, his partner, thereby occasioning her actual bodily harm. He was sentenced to imprisonment for four months and the magistrate refused to suspend the sentence.
The appellant has appealed against sentence. The sole ground in the original notice of appeal asserted that the magistrate erred in not suspending the term of imprisonment. However, leave was given to allow the appellant to amend the grounds of appeal by adding the following grounds:
“2 The learned special magistrate erred in sentencing on a factual basis which was inconsistent with that put to the parties and did so without a clear warning of his intention to proceed on that factual basis.
3The learned special magistrate erred in the factual basis of sentencing; he failed to have regard to the appellant’s submission that the offence was committed in circumstances of “excessive self defence”.
4 There was a miscarriage of justice in that there was uncertainty as to the factual basis of the offence which should have been resolved prior to sentence.”
According to the affidavit prepared by the prosecutor for the purposes of the appeal, she told the court that the victim had gone out on the evening of 13 June 2002 and when she returned to the home in which she was living with the appellant she could not get into the house. She went to sleep outside the house and at about 2 am was awoken by the appellant kicking her in the stomach. She then went inside the house where the appellant pushed her and she pushed him back. The appellant then punched her in the chest and arms using a clenched fist. The appellant also grabbed her hair with his right hand and repeatedly punched her with his left fist causing her to fall to the ground with him on top of her.
After a short struggle on the ground, the victim picked up a fork and stabbed the appellant in the middle of the head in an attempt to stop him hitting her. The appellant then picked up a steel-framed chair and hit the victim across the head, causing her to fall to the ground. It was alleged that the appellant continued to hit the victim over the head and on her back with the chair. The victim suffered lacerations to her head which required sutures. The learned magistrate was also advised that the appellant had relevant prior convictions. I will refer to that aspect of the matter shortly.
Prior to the hearing of this matter before the magistrate, the appellant’s solicitor had discussions with the prosecution authority concerning the basis of a proposed plea of guilty by the appellant. It was put to the prosecution that the appellant was prepared to plead guilty on the basis of “excessive self defence”. The prosecution agreed to this proposal and, on 16 January 2003, a member of the prosecution staff wrote to the appellant’s solicitors as follows:
“I confirm that our position in relation to sentencing, should you client enter a guilty plea, remains the same, ie prosecution is prepared to accept a plea on the basis of excessive self defence and not oppose a suspended sentence of imprisonment.”
According to the appellant’s solicitor, she told the magistrate in the course of submissions on sentence that the appellant and the victim had lived in a de facto relationship for a period of seven years. She said the relationship was characterised by excessive drinking on the part of both the victim and the appellant. She said they argued frequently. According to her submissions, the victim had assaulted the appellant on previous occasions, but he had not reported these incidents. She said that on the occasion of the present offence, the appellant and the victim had been drinking alcohol and arguing during the afternoon.
The appellant’s solicitor told the court that an argument broke out when the appellant returned home. She referred to that part of the incident when the victim struck the appellant in the head with a fork. According to the submissions, the appellant thought he had to protect himself, but that his reaction was excessive in the circumstances. The prosecution did not make any submissions to the contrary at this stage.
Finally, the appellant’s solicitor told the magistrate that the victim had moved interstate. The magistrate was told that the appellant was 46 years of age and that he was in receipt of a disability allowance for a back injury.
The prosecution’s preparedness to accept the basis of the plea put forward by the defence introduced artificiality into the sentencing process. On the facts put forward by the prosecution, the appellant initiated the violence by kicking the victim as she lay outside. The prosecution then alleged that when the couple went inside each punched the other before the appellant took hold of the victim’s hair and punched her. They fell to the ground and it was then that the victim stabbed the appellant with a fork. His reaction was to hit her on a number of occasions with the chair in the manner previously described.
It is to be inferred from the prosecution’s agreement to the sentencing basis proposed by the appellant’s counsel that the assault relied upon was that involving the use of the chair. It was claimed that at this stage the appellant believed he was acting in self-defence, but the force he used was not reasonably proportionate to the threat that he believed to exist.
A record of the proceedings before the magistrate is not available and, on the information before me, it is not clear whether the appellant’s solicitor admitted the facts alleged by the prosecution with respect to the events leading up to the use of the chair. These facts include the alleged kicking of the victim outside the house. The basis of the assault relied upon by the prosecution appeared to include these background circumstances. If they were not admitted, consideration should have been given to a disputed facts hearing. It is not possible to infer from the magistrate’s sentencing remarks what attitude he took to the surrounding facts.
However that may be, there is a further difficulty which was raised by the respondent on the hearing of the appeal. In the course of his sentencing remarks, the learned magistrate said:
“The defendant comes before the court not for the first time charged with offences of violence and breaching restraint orders of a domestic violence nature.
In fact on 3 June 1996 he was convicted of three breaches of domestic restraining orders, assault, two counts of hinder police and property damage which were consolidated and for which he was given a suspended five month period of imprisonment. This was a warning.
On 19 September, he was sentenced in relation to further offences of assault, breach of restraint order, property damage and hinder police and breaching his bond. He was imprisoned for five months and seven days and no further penalty was imposed for the breach of bond. Notwithstanding those experiences, the defendant again finds himself before the court for an offence of violence in a domestic setting.”
It is apparent from these remarks that the magistrate was treating the offences dealt with on 3 June 1996 and 19 September 1996, respectively, as two different groups of offences. In fact, however, it has been pointed out to me that the offences referred to are not two groups of offences but one group of offences. A suspended sentence was imposed in respect of those offences on 3 June 1996 and the suspension was revoked on 19 September 1996. As the magistrate has proceeded on the basis that there were two groups of offences instead of one, the appeal against sentence must be allowed and the orders made by him set aside.
The appellant and the respondent have not been able to agree on a set of facts which would enable me to sentence the appellant afresh. The only appropriate course in these circumstances is for me to remit the matter for rehearing before another magistrate. The orders of the court will be as follows:
1      Appeal against sentence allowed;
2      The sentence imposed by the learned magistrate will be set aside;
3      The matter will be remitted for hearing before another magistrate;
4The appellant’s bail will continue in the same conditions requiring him to appear before the Berri Magistrates Court when the matter is called on for rehearing;
5      The respondent to pay the costs of the appellant fixed in the sum of $150.

[2003] SASC 76

12 March 2003