Crosbie v Police
[2002] SASC 433
•20 December 2002
CROSBIE v POLICE
[2002] SASC 433
Magistrates Appeal
Gray J This is an appeal against sentence.
In February 2002 Duane Andrew Crosbie the appellant was charged on complaint with assault occasioning actual bodily harm[1]. Discussions between defence counsel and the prosecutor occurred prior to trial. The police possessed a videotape which depicted part of the alleged incident. Arrangements were made for defence counsel to view the videotape. Subsequently it was agreed that a plea to common assault would be accepted [2].
[1] The complaint was in the following terms:[2] Defence counsel’s affidavit deposed that it appeared the plea to assault would be accepted on a factual basis consistent with the events depicted in the videotape.
Proceedings Before the Magistrate
The Sentence Imposed
On 30 July 2002 the day of trial the prosecutor tendered no evidence in relation to the charge of assault occasioning actual bodily harm and the complaint was amended.[3] Following the amendment Mr Crosbie pleaded guilty to assault. A victim impact statement and other medical evidence was tendered. Mr Crosbie had no relevant prior convictions. He was sentenced to 10 weeks imprisonment which was suspended on the condition that he enter into a two year bond. The terms of that bond included that he be of good behaviour and that he perform 90 hours of community service.
A Factual Dispute
[3] The amended complaint read:There appeared to have been a factual dispute as to the involvement of the victim in the incident. In his remarks the magistrate noted the facts as outlined by the prosecutor:
“That at about 1 am Mr Crosbie attended at the victim’s home. An argument ensued between both Mr Crosbie and the victim. The argument took on physical dimensions on the veranda of the victim’s premises. It moved onto the front yard where Mr Crosbie chested the victim and ultimately punched him once to the head. In so doing Mr Crosbie has caused a black eye and other bruising to the victim. There was also shoving involved. Mr Crosbie moved away and, I am told, that trauma to the victim resulted. …
… I am told that a dispute between the parties arose as a consequence of the victim, who at the time in question resided in adjoining premises to those occupied by the victim, being concerned with petty larceny and damage to his vehicle. Mr Crosbie, it appears, tried to ascertain who was responsible. There was, as was termed by [defence counsel], a front door discussion or through the screen door. The discussion led to remonstrations. Then Mr Crosbie moved to the doorway where there was pushing and shoving. Ultimately he swung a punch which he now regrets. He told the police that he had gone to the victim’s premises and there argued with him and finally acknowledged having punched the victim.
I am told that only one punch was struck but Mr Crosbie desisted from any follow-up activity either on the adjoining premises…”
An affidavit deposed to by counsel for Mr Crosbie detailed the submissions that he made to the magistrate. Mr Crosbie attended the victim’s premises because his vehicle had been damaged and his property stolen. He believed that the victim was involved or had knowledge of the perpetrators. Upon attending at the victim’s front door an argument ensued. The victim came out of his house and the argument continued as the appellant moved from the front door into the driveway. There was pushing and shoving. Mr Crosbie stuck the victim with a single punch and then left.
The magistrate concluded that:
“There was pushing and shoving which may or may not have been a mutual state of affairs. However, I note the terms of the Victim Impact Statement which certainly suggests that the victim in the medical report did not retaliate when he was struck or chested.”
He found that the victim was not involved in the incident other than being the recipient of the punch. He inferred this from material in a victim impact statement about the lack of injuries to the victim’s hands.
Issues Arising
Error of Fact
On appeal both counsel agreed that it was important for this court to view the videotape.
The videotape shows the date and time of the recording in the top left hand corner. It starts at Thu 27-09-01 1:00. The video is black and white and has no sound. The tape has not been recorded in real time. The incident is depicted at high speed. It is not known who recorded the video or for what purpose.
The images show a man (agreed by counsel to be the appellant) walking past a stationary motor vehicle towards a house. It is dark but a light comes on almost immediately. The appellant then moves out of view of the camera but can soon be seen making wild hand gestures (presumably to the victim inside the house however the victim cannot be seen at this stage). The appellant then moves slightly to the right. Further hand gestures are made including finger pointing. The appellant steps closer to the door of the house. The screen door opens and a large man wearing a light coloured t-shirt (agreed by counsel to be the victim) comes outside. Further hand gestures and finger pointing occur. The victim is partly obscured by a tree. The appellant is clearly visible. He moves away from the door, off the veranda and into the driveway. By this time the victim is fully visible. The appellant walks away along the driveway but he is followed by the victim. He stops and turns around. There is more finger pointing by both parties. The facial expressions demonstrate that an argument is occurring. The appellant continues walking away but then stops for a second time. Again he turns around. There is more finger pointing and both the appellant and the victim wave their arms around. An unidentified third person then approaches. This person appears to be male. He appears to be holding something. He walks along the driveway and stops within a short distance of the appellant and the victim. The unidentified person then turns and walks back along the driveway and out of the camera’s view. The appellant again starts to walk away along the driveway. The victim follows him. The appellant stops and turns around so that he is facing the victim. They approach each other and “chest”. Both back away. The victim then places both his hands on the appellant’s shoulders. This was accepted by both counsel at the time the video was viewed in court on appeal. The appellant then sweeps the victim’s arms aside and punches the victim to the face. More finger pointing and “chesting” occurs. The appellant appears to then hit the victim in the chest. The appellant walks away along the driveway out of the view of the camera. The victim turns around to face the house and walks to the veranda. He then follows the appellant until he too is out of the view of the camera. The time at this point is 1:04:27. Approximately four minutes have passed since the appellant initially approached the victim’s door. About one minute later the victim walks back along the driveway onto the veranda. He opens the door and goes inside the house. About one minute later he comes outside again. He walks along the driveway and out of the view of the camera. Approximately 30 seconds later he walks back along the driveway and returned inside. Soon after an unidentified person matching the general description of the appellant walks along what appears to be a footpath at the foot of the driveway. This person can briefly be seen walking from the left side of the television screen to the right side of the television screen. This marks the 8 minute mark of the videotape. At this point the images depicting the incident are concluded.
As a result of viewing the videotape it is plain that the victim was engaged as an active participant in much of the incident.
Mr Crosbie pleaded guilty to common assault on facts consistent with the videotape. Given that there appeared to be a dispute between the parties as to the nature of the assault the best evidence available to the magistrate was the independent videotape. This was primary evidence which depicted the assault. The magistrate was not invited by either counsel to view that tape. He did not seek to do so of his own volition. Viewing the videotape prior to sentencing would have prevented the danger which Brennan J identified in The Queen v De Simoni[4]:
“Where there is a contested issue of fact affecting the sentence which ought to be imposed it would be wrong to deny an offender the right to have a jury’s verdict upon the contested issue, and to sentence him as though the issue had been resolved adversely to him.”
[4] (1980-1981) 147 CLR 383 at 407
The magistrate should have used the footage to resolve the factual dispute. Instead inferences were drawn and findings of fact were made on a more tenuous basis. The magistrate inferred that because the victim lacked physical injury to his hands he was not involved in the altercation other than being the recipient of the punch. He said that the pushing and shoving “may or may not have been a mutual state of affairs”. As the video demonstrated this foundation for the magistrate’s conclusions was unsafe and unsatisfactory. The videotape shows a dispute in which both men participated. Both were clearly engaged in aggressive verbal dialogue, the waving of arms, pointing and following, mutual “chesting” and prior to the punch the victim placed both of his hands on the appellant’s shoulders. It was against this context that the appellant threw the punch. The altercation was very much a two way dispute. The magistrate’s approach to the factual basis of the plea cannot be sustained.
The Charging Procedure
Confusion may have resulted from the fact that Mr Crosbie was initially charged with assault occasioning actual bodily harm on complaint. This charging procedure was incorrect. The offence of assault occasioning actual bodily harm carries a maximum penalty of five years imprisonment. Its classification dictates that it should have been charged on indictment. Had this occurred Mr Crosbie could then have entered a plea of guilty to the alternative offence of common assault. The prosecutor proceeded to amend the complaint to allege common assault. This amendment regulated the charging procedure given that common assault was a summary offence as defined by section 5(2)(b)[5] of the Summary Procedure Act 1921 (SA).
[5] Section 5 provides:
“(1) Offences are divided into the following classes:
(a) summary offences;
(b) indictable offences—comprising minor indictable offences and major indictable offences.
(2) A summary offence is—
(a) an offence that is not punishable by imprisonment;
(b) an offence for which a maximum penalty of, or including, imprisonment for two years or less is prescribed;
(c) a schedule 3 offence involving $2 500 or less not being—
(i) an offence of violence; or
(ii) an offence that is one of a series of offences of the same or a similar character involving more than $2 500 in aggregate,
but an offence for which a maximum fine exceeding twice a Division 1 fine is prescribed is not a summary offence.”
The offence of common assault to which Mr Crosbie pleaded guilty was a summary offence not an indictable offence. The maximum penalty for common assault is two years imprisonment given that the assault was not committed on a family member[6].
Error in Sentencing Approach
[6] The maximum penalty for assaulting a family member is three years imprisonment. It is a minor indictable offence.
The acceptance of the plea to assault[7] and the abandonment of the more serious charge of assault occasioning actual bodily harm[8] carried with it the necessary implication that the harm sustained was not serious. As Swift J observed in Rex v Donovan[9]:
“...‘bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.”
Mr Crosbie was entitled to be sentenced on the basis that he struck a blow which caused minor damage but which did not amount to actual bodily harm. As earlier observed the magistrate remarked:
“I think that a conviction against the defendant is required. The matter is too serious for it to proceed otherwise…I think the dimensions of the assault particularly having regard to the material in the Victim Impact Statement are severe to the point where a period of imprisonment should be imposed...”
[7] Section 39 of the Criminal Law Consolidation Act 1935 (SA) provides: “(1) A person convicted of common assault is liable to be imprisoned for a term not exceeding two years or, where the victim was at the time of the commission of the offence a family member of the offender, for a term not exceeding three years ...”
[8] Section 40 of the Criminal Law Consolidation Act 1935 (SA) provides: “Any person convicted of assault occasioning actual bodily harm shall be liable to be imprisoned for a term not exceeding five years or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term of not exceeding eight years.”
[9] [1934] 2 KB 498 at 509
Punishing Mr Crosbie on the basis that other than transient injuries were caused amounted to punishing him for an offence more serious than that to which he had pleaded. Given that the complaint had been amended and that the prosecutor had accepted the plea to common assault the magistrate’s approach was erroneous. As Wilson J observed in De Simoni[10]:
“I turn now to consider certain aspects of the duty which rests on the sentencing judge. Some principles are well established. The primary rule is that the judge must sentence the prisoner for the offence of which he has been convicted. He must not, even though the actual sentence may be within the range allowed for that offence, sentence for some other more serious offence which he is satisfied has been committed: R v King; Lovegrove v The Queen; Reg v Boyd; Reg v Foo; Reg v Harrison; Reg v Toomey; R v Bright. On the other hand, the judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict: R v King; R v Boyd; Reg v Marshall; Reg v Harris. But he must not punish the prisoner for additional offences with which he has not been charged: Reg v Reiner; Reg v Huchison.
[10] (1980-1981) 147 CLR 383 at 396
The magistrate brought matters of aggravation to account that did not form part of the elements of the offence to which Mr Crosbie had pleaded. The magistrate treated the offence more seriously than was appropriate. As Brennan J observed[11]
“By definition a circumstance of aggravation is a fact rendering an offender liable to greater punishment; it is not a fact which makes the proper sentence for the offender’s conduct greater than the sentence which would be appropriate if the circumstance of aggravation did not exist. A circumstance of aggravation affects the limits of the sentencing power, not the sentence to be imposed.
…
If the accused person by his plea admits what is alleged against him, the extent of his liability is established according to the tenor of his plea. If the accused person does not admit what the indictment alleges against him, his liability to punishment and the extent of that liability must be determined by the verdict returned after a trial upon the indictment. Once an offender’s liability to punishment is determined by plea or verdict, the effect of the indictment is spent.
…there is a rule of sentencing practice which may preclude a sentencing judge from taking a circumstance of aggravation into account in exercising a discretion within the limits determined by the plea or verdict. It is a rule of sentencing practice that an allegation made but not admitted or otherwise proved against an offender cannot be taken into account in passing sentence upon him. Ordinarily, a contest upon an issue of fact is resolved by the sentencing judge after hearing evidence relating to that fact if the fact has not been determined by a jury verdict and if the fact is of sufficient importance to justify a hearing.
… Where there is a contest as to a circumstance of aggravation which might have been alleged in an indictment and submitted to a jury’s determination, ... but which was not so determined, the judge cannot impose sentence on the footing that the circumstance of aggravation has been established. The Court of Criminal Appeal so held when it reduced the sentence in R v Bright Darling J, delivering the Court’s judgment, said that a judge “must not attribute to the prisoner that he is guilty of an offence with which he has not been charged – nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation.”
[11] (1980-1981) 147 CLR 383 at 405-406
The magistrate erroneously sentenced Mr Crosbie for conduct which amounted to assault occasioning actual bodily harm.
Victim Impact Statement
Counsel for Mr Crosbie advanced a number of complaints about the magistrate’s use of the victim impact statement and a supplementary statement. It was submitted that his use of the statements compounded his earlier error of sentencing the appellant for the more serious offence of assault occasioning actual bodily harm. The statements included:
“The trauma, the stress, the anxiety, the depression, the intimidation, the fear, the abuse I received, being terrified, the bad dreams, the bed wetting, the bad thoughts of him being at my window while sleeping, the thoughts of [Mr Crosbie] assaulting me again or out to kill me, the eye surgery required, the post traumatic stress disorder.”
The victim also sought $50,000 compensation.
It was submitted that the statements were prepared prior to Mr Crosbie’s plea to common assault. They were prepared on the basis that he had committed the more serious, indictable offence of assault occasioning actual bodily harm. Given the plea to the summary offence of common assault the use to which the statements could be put was limited. So far as they referred to the more serious charge they were irrelevant. To use them as evidence of anything other than transient injury, loss or damage was to take into account irrelevant considerations and punish Mr Crosbie for a more serious charge than that to which he had pleaded. The magistrate’s approach was erroneous.
The magistrate’s use of the statements was contrary to section 7A of the Criminal Law (Sentencing Act) 1988 (SA) which provides:
“(1) A person who has suffered injury[12], loss or damage resulting from an indictable offence committed by another may furnish the trial court with a written personal statements (a ‘victim impact statement’) about the impact of that injury, loss or damage on the person and his or her family. ...”
[12] Section 3(1) provides “In this Act, unless the contrary intention appears ... ‘injury’, in relation to an offence, includes pregnancy, mental injury, shock, fear, grief, distress or embarrassment resulting from the offence.”
Section 7A provides that a personal statement detailing a victim’s injury, loss or damage may be furnished to a court when a defendant has pleaded guilty to an indictable offence or been convicted of such an offence. The legislation is silent as to the use of victim impact statements for summary offences.
An objection to the relevance and admissibility of the statements and their content could legitimately have been advanced before the magistrate. However no objection was taken. Information about the victim so far as it related to the offence of common assault was a relevant matter to be considered pursuant to section 10 of the Sentencing Act which provides:
“10(1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
...
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
...
(o) any other relevant matter.”
Section 7 of the Sentencing Act provides:
“(1) Subject to subsection (2), the prosecutor must, for the purpose of assisting a court to determine sentence for an offence, furnish the court with particulars (that are reasonably ascertainable and not already before the court in evidence or a pre-sentence report) of -
(a) injury, loss or damage resulting from the offence;...”
It was of no moment that the relevant victim information in this case happened to be presented in the form of a victim impact statement. As earlier observed there was no objection taken to this procedure in this case.
The magistrate made numerous references to the victim impact statements in his reasons. If the statements had contained information relevant to the offence of common assault then his reliance on that information would in the normal course have been appropriate. However given that the statements were prepared on the basis of the more serious charge the magistrate was left in an invidious position.
Victim impact statements provide victims with an opportunity to inform the court either orally or in writing about the impact and effect that an indictable offence has had upon them. If a court is going to be able to use the information contained in a victim impact statement as reliable and probative then it is important for counsel to identify explicitly what if any material is objected to and on what grounds the objection is based. It is counsel’s responsibility to identify what if any part of the statement is challenged, the use to which the remaining parts of the statement should be put and the weight that should be given to the material. Only then will the court be in a position to determine what use will be made of those parts of the statements that are admitted. Although in the present case some difficulty was foreshadowed by counsel for Mr Crosbie at the time submissions were made counsel should have objected to the statement and identified those parts that were disputed prior to their tender.[13]
[13] One specific objection was made which related to the cost of glasses said to have been worn by the victim at the time he was assaulted. During sentencing submissions it was put that the videotape showed that the victim was not wearing glasses during the assault. Accordingly in his remarks the magistrate observed: “I note the Victim Impact Statement generally and in particular note that [the victim], who is now aged 31 years, has expressed the view that he wishes the court to know the effect of the crime on him and he seeks compensation. As to that I am told that a claim under the Criminal Injuries Compensation Act will proceed independently and the Prosecutor requests that I do not consider making an order in that regard. I think it best that I not do so in view of the fact that there may be other issues to be resolved in relation to that claim. One aspect thereof relates to the victim’s claim for glasses. The difficulty, as I understand it, is that the victim is not certain as to whether he was wearing glasses at the time and so the Prosecutor today requests also that I make no order in relation to the claim for $151.56 identified in paragraph 11 of the Victim Impact Statement.”
It is important to recognise the role of victim impact statements and to understand how the legislative framework has been constructed. The purpose of victim impact statements and their use has been considered on a number of occasions by this court.[14]
Imprisonment as a Last Resort
[14] R v Liddy [2002] SASC 306 at [232-236] see also Bekker v Police (2001) 120 A Crim R 170 and Drohan v Police [2000] SASC 207
Counsel for Mr Crosbie complained that the magistrate failed to have regard to section 11 of the Sentencing Act which provides:
“(1) A sentence of imprisonment may only be imposed—
(a) if, in the opinion of the court—
(i) the defendant has shown a tendency to violence towards other persons; or
(ii) the defendant is likely to commit a serious offence if allowed to go at large; or
(iii) the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b) if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).…”
The circumstances of this case do not clearly align themselves with any of the criteria specified in section 11(1)(a). As earlier observed Mr Crosbie had no prior convictions for violent offending. Although he was involved in a physical confrontation with the victim there was no evidence to indicate that he had shown a tendency to violence towards others. There was no evidence that if allowed to go at large he was likely to commit a serious offence. He had not previously been convicted of an offence punishable by imprisonment.
Section 11(1)(b) must also be considered in conjunction with section 10 of the Sentencing Act which provides:
“(1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(2) A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.”
It is necessary to impose a conviction in this case to give proper effect to the specified policy. An aggravating feature of this offending was that the victim was approached by Mr Crosbie at his home in the early hours of the morning. However having viewed the videotape and considered the criteria in section 11(1)(a) it cannot be said that any sentence other than imprisonment would be inappropriate having regard to the gravity or circumstances of the offence. The videotape showed that this was a minor altercation. Both were contributors. The altercation had a transient effect. A sentence of imprisonment should not have been imposed.
Given the incorrect factual basis on which this matter proceeded it follows that Mr Crosbie was sentenced for a more serious charge than that to which he had pleaded. The magistrate’s use of the victim impact statement and supplementary statement which had been prepared for the more serious offence resulted in the magistrate considering extraneous matters. He took into account irrelevant considerations. Inadequate weight was given to the considerations specified in section 11 of the Sentencing Act. The magistrate failed to have regard to relevant considerations. His sentencing discretion has miscarried. A penalty other than a sentence of imprisonment was appropriate in this case. Error has been demonstrated.[15] There is a need to re-sentence Mr Crosbie. It is appropriate for this court to perform that task.
[15] The approach of an appellate court when reviewing sentences has been the subject of comment by the High Court in Dinsdale v R. (2000) 202 CLR 321. Gleeson CJ and Hayne J said at [3-4]:
Re-sentence
The appellant attended at the victim’s front door in the early hours of the morning with a view to remonstrating. His conduct was hot headed and foolish and resulted in a physical confrontation which continued into the victim’s driveway. The victim and the appellant waved their arms, pointed, followed each other and “chested”. The appellant then punched the victim after he placed both hands on the appellant’s shoulders. The victim sustained minor transient injuries. The victim impact statement and supplementary statement provide some information with respect to the minor transient injury suffered and of the victim’s discontent with what occurred. This is the only use that can be made of these statements.
The appellant’s conduct in attending at the victim’s home when he did was an aggravating feature. An unwanted intrusion onto a person’s property is a serious matter. People are entitled to feel safe in their homes at night and during the early hours. Other mechanisms were available to the appellant if he thought that the victim was involved in damaging or taking his property or knew of those who were responsible. A report should have been made to the police. Telephone contact or engaging a third person to act as a mediator would have been reasonable, more balanced options. The appellant’s conduct highlights the dangers associated with confrontation and the difficulties persons can encounter when they attempt to resolve grievances on their own.
The appellant was aged 27 years at the time of sentencing. At the age of five months he and his elder brother were adopted. His mother died suddenly from toxic shock when the appellant was aged 12 years. The appellant did not cope well with his mother’s death. He did not attend to much of his High School education. He worked for some time at a fast food outlet before moving to Lameroo to undertake farm work. He then travelled to Tasmania and remained there for 14 months before returning to Adelaide to live in a youth hostel. He was then employed for six years as a first class die setter. He worked for 18 months as a brickpaver until his employer’s business failed.
The appellant lives near his father and they maintain regular contact. The appellant’s brother now lives in Queensland. The appellant acknowledges that he has difficulty with literacy and numeracy and that these difficulties need to be addressed. He is not currently employed however he has shown some interest in undertaking training with Mission Australia to become an adventure course guide. He receives government assistance in the amount of $360 per fortnight and pays $82 rent each week. He has other debts of $140 per week that he is not in a position to meet. The court was told that he is seeking financial counselling with a view to improving his financial circumstances.
The appellant has no relevant prior offences. He has no history of violence. He pleaded guilty at the earliest available opportunity. He shows an interest in improving his financial position, his literacy and numeracy skills and his employment prospects.
The orders of the court are that:
- the appeal is allowed
- the order of the magistrate is set aside
- a conviction is recorded
-the appellant is to be sentenced to enter into a bond. The terms of that bond are that he:
- be of good behaviour and comply with all of the other conditions of this bond for a period of three years;
- be under the supervision of a community corrections officer for a period of three years and obey the lawful directions given by the community corrections officer to whom he is assigned for the purposes of supervision;
- perform 50 hours of community service within six months from the date of this bond and obey the lawful directions of the community corrections officer to whom you are assigned for the purposes of community service;[16]
[16] 50 hours have been fixed after having regard to the fact that Mr Crosbie had already performed a number of hours of community service in relation to this matter.
- undergo courses in anger management, literacy and numeracy skills, obtaining employment and financial planning as are directed by his community corrections officer;
- not enter upon the victim’s premises or approach the victim outside his premises, approach or make contact with the victim either directly or indirectly;
- report within two working days of having signed this bond at the offices of the Department of Correctional Services at Adelaide.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 The complaint was in the following terms:
“On the 27th day of September, 2001 at Huntfield Heights in the said State [Duane Andrew Crosbie] assaulted [PAC] a person of or above the age of 12 years thereby occasioning him actual bodily harm.
Section 40 of the Criminal Law Consolidation Act, 1935
This is a minor indictable offence”2 Defence counsel’s affidavit deposed that it appeared the plea to assault would be accepted on a factual basis consistent with the events depicted in the videotape.
3 The amended complaint read:
“On the 27th day of September, 2001 at Huntfield heights in the said State [Duane Andrew Crosbie] assaulted [PAC] a person.
Section 39 of the Criminal Law Consolidation Act 1935.This is a summary offence.”
4 (1980-1981) 147 CLR 383 at 407
5 Section 5 provides:
“(1) Offences are divided into the following classes:
(a) summary offences;
(b) indictable offences—comprising minor indictable offences and major indictable offences.
(2) A summary offence is—
(a) an offence that is not punishable by imprisonment;
(b) an offence for which a maximum penalty of, or including, imprisonment for two years or less is prescribed;
(c) a schedule 3 offence involving $2 500 or less not being—(i) an offence of violence; or
(ii) an offence that is one of a series of offences of the same or a similar character involving more than $2 500 in aggregate,
but an offence for which a maximum fine exceeding twice a Division 1 fine is prescribed is not a summary offence.”6 The maximum penalty for assaulting a family member is three years imprisonment. It is a minor indictable offence.
7Section 39 of the Criminal Law Consolidation Act 1935 (SA) provides: “(1) A person convicted of common assault is liable to be imprisoned for a term not exceeding two years or, where the victim was at the time of the commission of the offence a family member of the offender, for a term not exceeding three years ...”
8Section 40 of the Criminal Law Consolidation Act 1935 (SA) provides: “Any person convicted of assault occasioning actual bodily harm shall be liable to be imprisoned for a term not exceeding five years or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term of not exceeding eight years.”
9 [1934] 2 KB 498 at 509
10 (1980-1981) 147 CLR 383 at 396
11 (1980-1981) 147 CLR 383 at 405-406
12 Section 3(1) provides “In this Act, unless the contrary intention appears ... ‘injury’, in relation to an offence, includes pregnancy, mental injury, shock, fear, grief, distress or embarrassment resulting from the offence.”
13One specific objection was made which related to the cost of glasses said to have been worn by the victim at the time he was assaulted. During sentencing submissions it was put that the videotape showed that the victim was not wearing glasses during the assault. Accordingly in his remarks the magistrate observed: “I note the Victim Impact Statement generally and in particular note that [the victim], who is now aged 31 years, has expressed the view that he wishes the court to know the effect of the crime on him and he seeks compensation. As to that I am told that a claim under the Criminal Injuries Compensation Act will proceed independently and the Prosecutor requests that I do not consider making an order in that regard. I think it best that I not do so in view of the fact that there may be other issues to be resolved in relation to that claim. One aspect thereof relates to the victim’s claim for glasses. The difficulty, as I understand it, is that the victim is not certain as to whether he was wearing glasses at the time and so the Prosecutor today requests also that I make no order in relation to the claim for $151.56 identified in paragraph 11 of the Victim Impact Statement.”
14 6 R v Liddy [2002] SASC 306 at [232-236] see also Bekker v Police (2001) 120 A Crim R 170 and Drohan v Police [2000] SASC 207
15 The approach of an appellate court when reviewing sentences has been the subject of comment by the High Court in Dinsdale v R. (2000) 202 CLR 321. Gleeson CJ and Hayne J said at [3-4]:
“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 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.’
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”
Gaudron and Gummow JJ were of a similar opinion. Their Honours said at [22]:
“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been ‘upon the facts ... unreasonable or plainly unjust [so that] 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.”16 50 hours have been fixed after having regard to the fact that Mr Crosbie had already performed a number of hours of community service in relation to this matter.
“On the 27th day of September, 2001 at Huntfield Heights in the said State [Duane Andrew Crosbie] assaulted [PAC] a person of or above the age of 12 years thereby occasioning him actual bodily harm.
Section 40 of the Criminal Law Consolidation Act, 1935
This is a minor indictable offence”
“On the 27th day of September, 2001 at Huntfield heights in the said State [Duane Andrew Crosbie] assaulted [PAC] a person.
Section 39 of the Criminal Law Consolidation Act 1935.
This is a summary offence.”
“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 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.’
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”
Gaudron and Gummow JJ were of a similar opinion. Their Honours said at [22]:
“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been ‘upon the facts ... unreasonable or plainly unjust [so that] 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.”
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