Crosbie v Police - [2002] SASC 433

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…

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 Crosbie v Police

Details

AGLC: Crosbie v Police [2002] SASC 433
Case: [2002] SASC 433
Decision Date: 20 December 2002

CaseChat Overview and Summary

The appeal in Crosbie v Police concerns the conviction of Duane Andrew Crosbie for assaulting a family member. The matter was heard in the South Australian Court of Appeal, which considered the appeal against the conviction and sentence imposed by a magistrate. The legal issues before the court were whether the charge of assault was correctly classified as a summary offence and whether the sentence imposed was manifestly excessive or inadequate.

The court first considered the classification of the offence. It found that the offence of assault against a family member is a minor indictable offence, not a summary offence, as it carries a potential penalty of up to three years imprisonment. The court set aside the magistrate's order and recorded a conviction for the correct offence. The court then examined the sentence imposed by the magistrate. The sentence included a bond with conditions such as community service, attendance at various courses, and restrictions on contact with the victim. The court noted that the sentence was within the range of penalties available for the offence and found no error in the magistrate's exercise of discretion. The court concluded that the sentence was neither manifestly excessive nor inadequate, and thus upheld the sentence as imposed by the magistrate.

The final orders of the court were to allow the appeal, set aside the order of the magistrate, record a conviction for the correct offence, and uphold the sentence imposed. The appellant was to be sentenced to enter into a bond with specified conditions, including community service, supervision by a community corrections officer, and restrictions on contact with the victim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 JUDGMENT1 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, 1935This 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 4075 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 50910 (1980-1981) 147 CLR 383 at 39611 (1980-1981) 147 CLR 383 at 405-40612 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 20715 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.

Ratio Decidendi

Legal Principle Established

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