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jointly charged with Christopher James Upenieks with aggravated assault causing harm, but later that charge was withdrawn.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…

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 Crispin v POLICE

Details

AGLC: Crispin v POLICE [2009] SASC 210
Case: [2009] SASC 210
Decision Date: 21 July 2009

CaseChat Overview and Summary

The appeal heard by the court involved Crispin, who pleaded guilty to two offences of assault under section 20(3) of the Criminal Law Consolidation Act 1935. Crispin was sentenced to six months imprisonment by the magistrate, who also declined to suspend the sentence. Crispin appealed against the sentence, arguing that it was manifestly excessive and that the magistrate erred in not suspending the sentence.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive and whether the magistrate erred in not suspending the sentence. Crispin argued that the sentence was too harsh given the circumstances of the case, and that the magistrate should have considered suspending the sentence. The court had to determine whether the sentence fell outside the range of penalties appropriate for the offences and whether the magistrate's decision not to suspend the sentence was reasonable.

The court found that the penalty imposed was within the range of penalties for the offences and was not manifestly excessive. The court considered the seriousness of the crimes, the protection of the victim, and the importance of deterrence in its sentencing considerations. The court also agreed with the magistrate's decision not to suspend the sentence, finding that there was no good reason to do so and that the magistrate had not erred in this regard. The court dismissed Crispin's appeal, holding that no error had been demonstrated in the length of the sentence or in the decision not to suspend the sentence.

The court's final orders were that the appeal was dismissed. The sentence of six months imprisonment, reduced from eight months on account of the guilty pleas, was upheld as appropriate for the offences committed. The decision not to suspend the sentence was also upheld as reasonable, given the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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