Crispin v POLICE - [2009] SASC 210

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CRISPIN v POLICE
[2009] SASC 210
Judgment of The Honourable Justice Anderson
21 July 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Magistrates appeal - appellant pleaded guilty to two offences of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 - sentenced to 6 months imprisonment - whether sentence is manifestly excessive - whether penalty imposed is outside range of penalties for those offences - whether magistrate erred in failing to suspend sentence.
Held: Penalty is within range of penalties for those offences - sentence not manifestly excessive - magistrate did not err in failing to suspend sentence - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v R (1936) 55 CLR 499; Birch v Fitzgerald (1975) 11 SASR 114, discussed.
Yardley v Betts (1979) 22 SASR 108, considered.

CRISPIN v POLICE
[2009] SASC 210
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant in this matter was initially jointly charged with Christopher James Upenieks with aggravated assault causing harm, but later that charge was withdrawn. The appellant then pleaded guilty to two offences of assault contrary to the provisions of s 20(3) of the Criminal Law Consolidation Act 1935 (“the Act”). Mr Upenieks was separately charged with assault causing harm. The magistrate sentenced both Mr Crispin and Mr Upenieks to 6 months imprisonment and declined to suspend the sentences.
Background
I will set out from the sentencing remarks of the magistrate the summary of the facts in this matter, which are not in dispute. His Honour said:
The incident itself is a serious matter. I was told by prosecution that the victim, a young lad by the name of Alex Henley was travelling on a train on the day in question. You both entered the train at the same time as him; Mr Henley took a seat facing the aisle. As the train approached a station Mr Upenieks you walked past Mr Henley to stand in the vicinity of a doorway. There was no contact or discussion between you and Mr Henley as you did that. I pause at this stage to say that the incident was captured on CCTV footage, which I have viewed. As the train pulled into the station Mr Crispin you walked past the victim, you bent over and you spat in Mr Henley’s face. You then continued on to stand in the vicinity of Mr Upenieks. The victim Mr Henley wiped his face and stood up and approached you Mr Crispin. He tapped you on the shoulder and seemingly asked what the spit was all about. As he did so you turned and punched him in the face with a left hook. He was struck on the right hand side of his face. At about that time the train had arrived at the station and you left the train. As Mr Henley was standing there stunned, holding his face, Mr Upenieks, you turned towards him and struck him to the temple. You did so with your forearm. It was a backhanded elbowing type motion, but you did not elbow him as such – the middle of your forearm struck him in the temple. As a result of that strike Mr Henley fell to the ground. He was unconscious. It’s not clear based on the information provided to me as to whether it was the force of your blow or the fact that he struck the ground that caused him to lose consciousness. In any event he only fell to the ground because you struck him.
Mr Crispin was charged with two counts of assault, namely the spitting and the punch. Both occurred within a very short time of each other. Although the joint charge of aggravated assault causing harm was withdrawn, it is clear that Mr Crispin and Mr Upenieks were travelling together and acted in concert. They both left the train after the incidents.
The victim was unconscious for 10 minutes and was transported by ambulance to hospital, where he was treated for concussion. He had no memory of the incident. He had “heavy bruising” to his face.
Grounds of appeal
The appellant complains in his notice of appeal that the sentence imposed by the magistrate was manifestly excessive and that the magistrate erred in failing to suspend the sentence of imprisonment which he imposed. The appellant was convicted of two offences contrary to s 20(3) of the Act. The maximum sentence for each offence was 2 years. The magistrate imposed a term of 6 months imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. This was reduced from 8 months on account of the guilty pleas. He declined to suspend the sentence.
Appellant’s submissions
Mr Stokes, counsel for the appellant, argued that the sentence of 6 months imprisonment was manifestly excessive. He submitted that the starting point of 8 months was too high. Mr Stokes conceded that he could not point to any error made by the magistrate in the course of his sentencing remarks. He argued that there must nevertheless be some undisclosed error which led to the magistrate’s decision to impose the term of imprisonment and then not to suspend the sentence. He submitted that the matter came within the principles in House v R (1936) 55 CLR 499. The majority said at 505:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Mr Stokes argued that the magistrate must have placed too much emphasis on the issue of deterrence compared with the personal circumstances of the appellant. He also submitted that it would have been preferable for the magistrate to look to the rehabilitation of the appellant rather than imprisoning him. He referred to those authorities which reflect the proposition that the penalty imposed must fit not only the offence but the offender: see Yardley v Betts (1979) 22 SASR 108 per King CJ at 112 and 113.
Respondent’s submissions
Mr Stretton, who appeared for the respondent, emphasised the seriousness of this offending. He emphasised the fact that the offences occurred on public transport in view of many passengers, that it was an unprovoked attack and that it was violent. In a victim impact statement filed by the victim, it is apparent that the victim has suffered considerable trauma, and apart from the initial shock, he now has a fear of travelling on public transport. That is quite understandable. Mr Stretton submitted that members of the public using public transport are entitled to assume that they can travel safely without the concern of being exposed to violence directed either to them or to other passengers.
Mr Stretton submitted that whilst the appellant had youth on his side and was of good character, it was a case where the deterrent purpose of punishment prevailed. He referred to the decision of Bray CJ in Birch v Fitzgerald (1975) 11 SASR 114 at 116-117. When considering the question of how to deal with youthful offenders of good character, Bray CJ said:
Nevertheless, there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated … It may be that the incidence of such violence will be reduced if it is brought home to those likely to resort to it that if they do they may very well be punching, striking, butting or kicking themselves into gaol.
Sentencing remarks
The magistrate in this matter was very careful to set out all the considerations which he took into account. He properly directed himself in all areas, and no criticism is made of his sentencing remarks other than his conclusion. In particular, the magistrate makes it quite clear that he is aware of the significance of the age of the appellant, his lack of relevant prior convictions, the fact that he has gainful employment and has family support. The magistrate properly directs himself in relation to imprisonment being a penalty of last resort for young offenders.
The dilemma for the magistrate and for this Court is that the appellant was young, was in employment, was supported by his family and did not have any criminal record in relation to offences of violence. In fact, his criminal record shows that his offences related to driving offences in the main and damaging property. Those offences do illustrate that the appellant has in the past been defiant of authority, even though the offences did not involve personal violence.
The appellant was 22 years old at the time of the offences. He was still living at home. He had a good work history and is currently employed. He also expressed his regret to the court, although in view of some aspects urged in mitigation on his behalf, it could not be said that he was fully contrite.
The magistrate said, after stating that all assaults are serious:
The spit, the punch, the strike to the temple. It occurred on a public train. A number of other passengers were present. It occurred to a victim who had done absolutely nothing to bring this assault upon him on. The prosecutor submitted that attack was cowardly and I agree with that submission.
It should be noted that the strike to the temple referred to by the magistrate was from Mr Upenieks.
It was in those circumstances that His Honour concluded that imprisonment was the only appropriate penalty for Mr Crispin. I agree with him in that respect.
This Court can only interfere with the magistrate’s sentencing discretion if it can be shown that the sentence was manifestly excessive or the magistrate has made an error or upon the principle referred to earlier in these reasons from House v R. The appellant in this matter must show that the sentence of 6 months is outside a range of penalties for these offences. That is because it is acknowledged that there is no error by the magistrate.
As to the imposition of 6 months for the sentence of imprisonment, it cannot be said it that is not within an available range of appropriate penalties. It is my view that 8 months is a moderate starting point in the circumstances. I consider it moderate for several reasons. First, it was an unprovoked attack in a public place on a person unknown to the appellant. Secondly, there could easily have been much more serious consequences. It was a moving train with lots of steel or metal objects which could have caused very serious injuries. Thirdly, there was a danger of innocent members of the public being physically injured or traumatised by the incidents.
I would therefore dismiss the first ground of appeal on the basis that the term of imprisonment of 6 months is not manifestly excessive. As I have said, I consider the sentence to be moderate.
Suspension of imprisonment
In relation to the question of suspension of the sentence of imprisonment, the magistrate again directed himself properly and considered all of the relevant matters.
Like the magistrate, I saw the incidents on closed circuit television footage. The incidents all looked ugly in the confined space of a train carriage which was reasonably full of passengers. Suspension of the sentence was an available option. There were obvious factors in the appellant’s personal circumstances which would be in favour of a suspension. These included his age, his prior record and his prospects of rehabilitation. As against that, the consequences for the victim were serious and the offences took place in the crowded carriage of a suburban train. As I have already said, it was an unprovoked attack.
Some magistrates may have imposed a sentence of imprisonment but then suspended it. However, I am not prepared to interfere with the discretion of the learned magistrate because of the seriousness of the crimes. The victim was entitled to the protection of the law and the aspect of deterrence is in this case an important sentencing consideration. The magistrate concluded that there was no good reason to suspend the sentence and has not been shown to have erred in this regard. I agree with His Honour’s decision not to suspend the term of imprisonment.
Conclusion
It is my view that no error has been demonstrated either in the length of sentence or in the decision not to suspend the sentence.
The appeal is dismissed.