CULGAN v Police

[2014] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

CULGAN v POLICE

[2014] SASC 124

Judgment of The Honourable Justice Kelly

29 August 2014

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW

Appeal against sentence.  The appellant pleaded guilty to one count of assault causing harm.  The sentencing Magistrate imposed a sentence of imprisonment of eight months and directed the appellant to serve two months immediately and suspended the balance of six months upon the appellant agreeing to enter into a bond.

Whether the Magistrate erred in failing to apply the correct test in determining whether good reason exists to suspend the whole of the sentence of imprisonment.  Whether the Magistrate erred in declining to suspend the whole of the sentence of imprisonment imposed.

Held (dismissing the appeal):

1. The Magistrate did not err in the application of s 38(2a) or in the exercise of the discretion.

2.  The Magistrate had regard to all relevant factors and the decision to impose an immediate term of imprisonment was open to the Magistrate in the exercise of the discretion.

Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 10(e), s 38(1), s 38(2a); Security and Investigation Industry Act 1995 (SA), referred to.
Carusi v Police [2002] SASC 240; Police v Chilton [2014] SASCFC 76, considered.

CULGAN v POLICE
[2014] SASC 124

Magistrates Appeal:   Criminal

KELLY J.

1. This is an appeal against a sentence imposed in the Magistrates Court on 18 June 2014. 

2. The appellant pleaded guilty to one count of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). As it was a basic offence the maximum penalty was three years imprisonment.

3. The Magistrate imposed a sentence of imprisonment of eight months. After determining that there was no good reason to wholly suspend, her Honour directed that the appellant serve two months immediately and suspended the balance of six months upon the appellant agreeing to enter into a bond to be of good behaviour for two years. In doing so, the Magistrate exercised the powers available to her under s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA).

4. The appellant appeals to this Court on two grounds.  The first is whether the Magistrate erred in failing to apply the correct test in determining whether good reason exists to suspend the sentence of imprisonment.  The second is whether the Magistrate erred in declining to suspend the sentence of imprisonment which she imposed. 

   Background

5. The appellant was working as a “responsible person” at the door of a nightclub in Hindley Street, Adelaide in the early hours of the morning on 1 August 2013.  A responsible person is to be distinguished from a security agent for the purpose of the relevant accreditations required under the Security and Investigation Industry Act 1995 (SA). In that capacity he was responsible for controlling entry of members of the public to the club.

6. The victim and another man approached the club at about 1.00 am seeking entry into the club.  The appellant questioned the victim about his level of intoxication and ultimately denied him entry into the club.  The victim and his companion remained outside of the club for a short time speaking with the appellant.  At one stage the victim knocked on an adjacent wall or door where upon the appellant punched the victim to the head causing him to fall heavily to the ground and temporarily lose consciousness.  The victim suffered a cut to the back of his head where his head impacted with the concrete pavement.  The victim experienced jaw and mouth pain and, as a result of the loss of consciousness, suffered a degree of amnesia.  He was discharged from hospital the next day.  CCTV footage of the incident was available.  The Magistrate relied on that footage which shows the appellant delivered a forceful blow to the victim.

7. The appellant pleaded guilty on the morning of the date set for his trial. 

8. Relevantly, on 1 August 2013, the date when the offence occurred, the appellant was on bail for a similar assault which occurred on the evening of 16 June 2012 in the vicinity of Red Square Nightclub where the appellant was then working as a responsible person.

9. After a trial by jury in the District Court the appellant was found guilty and ultimately sentenced by a District Court Judge on 30 October 2013.  The District Court Judge imposed a head sentence of 12 months with a non-parole period of eight months which her Honour suspended on the appellant agreeing to enter into a bond to be of good behaviour for two years. 

   The Magistrate’s reasons

10. After noting the remarks of the District Court Judge who sentenced the appellant in October 2013, her Honour identified the issue on sentencing as follows:

    There is no dispute that a sentence of imprisonment is called for again.  Both parties concede that.  The question for this Court is the length of the term and whether there is good reason to suspend the term imposed. 

11. Her Honour then outlined in considerable and careful detail the relevant factors militating for and against imprisonment.

12. In particular the Magistrate observed that the attack was unprovoked and spontaneous and that at the time of the attack the victim posed no threat to the appellant.  She noted that the appellant had no previous convictions for assault however he had been at the relevant time on bail for a similar charge for which he was later convicted. 

13. The Magistrate noted that the offence occurred whilst the appellant was working in a position of responsibility and that the victim had suffered some injuries.  She noted that the appellant was very remorseful for his actions and commented about the many positive qualities outlined in his character references although her Honour stated that in light of his earlier behaviour, she was not able to conclude that the offending was out of character.

14. The Magistrate then considered the appellant’s relevant personal circumstances including in particular the fact that the appellant had recently gained regular employment in a different industry, that he was in a stable relationship and that he had a young child.  The Magistrate considered the effect a gaol term would have on the appellant and the detrimental effect if the appellant was to lose his job and his house.  She also took into account the submission made on the appellant’s behalf that at the time of the offending he had been the victim of an assault himself making him hyper-vigilant and afraid, that he had been working long shifts, was worried about the District Court proceedings which at that time were still pending and that he was additionally facing challenges in his relationship. 

15. Her Honour correctly stated that in fixing a penalty she was required to balance a number of factors including the need for adequate punishment, personal and general deterrence as well as prospects of rehabilitation and relevant personal factors.

16. At the conclusion of her remarks the Magistrate then said:

    Having regard to the authorities concerning the imposition of an immediate term of imprisonment, including the case referred to me by counsel, I find that there is no good reason to suspend the whole of the term imposed. However, pursuant to s 38(2a) of the Criminal Law (Sentencing) Act, I direct that you serve the term of only 2 months immediately. 

    The appeal

17. It was said that the paragraph set out above discloses an error in that the Magistrate failed to apply the correct test but simply proceeded by reference to the authorities concerning the imposition of immediate terms of imprisonment.  I do not agree with that submission. 

18. I have said before and I say it again now that I consider it to be a wholly artificial and unfair exercise to analyse and purport to identify error in an isolated sentence in an otherwise comprehensive set of sentencing remarks of the kind seen here.

19. When the Magistrate’s remarks are read as a whole, it is plain that in the impugned sentence all her Honour was signalling was that she had turned her mind to the relevant authorities relevant to the imposition of an immediate term of imprisonment.  It is significant that the sentence came at the end of a careful and detailed consideration of all of the circumstances militating both for and against the imposition of an immediate term of imprisonment.

20. One of the authorities her Honour may have had in mind, and to which she was specifically directed, was Carusi v Police[1] where Gray J stated that s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) is an important provision of particular utility when a first offender is to be sentenced to an immediate term of imprisonment.

    [1] [2002] SASC 240.

21. The Magistrate was faced with a difficult decision.  On the one hand the appellant is still a relatively young man without any relevant prior convictions, whose partner had only recently given birth to their first child.  On the other hand, this was a serious offence committed whilst the appellant was on bail for an earlier offence of an almost identical nature committed in relevantly similar circumstances.

22. These are all matters that the Magistrate was entitled to take into account.  The fact that the offence occurred during the course of the appellant’s duties while working as a security guard is another important factor.  The offending itself was very serious and it was fortuitous that the victim did not sustain far more serious injuries than he did.  As to this point, the appellant submits that the relatively minor injuries sustained by the victim (when compared with, for example, persons who have been killed as a result of single punch assaults) was a factor that ought be weighed in his favour.  This submission is misconceived.  When sentencing the appellant, the Magistrate was required to have regard to any injury resulting from the offence;[2] however the fact that the victim’s injuries were not more serious was in this case a result of luck rather than judgment.

    [2]    Criminal Law (Sentencing) Act 1988 (SA), s 10(e).

23. For these reasons the decision to impose an immediate term of imprisonment was open to the Magistrate in the exercise of the discretion.  Indeed, for offences of assault involving violence it is open to a court to gaol even a first offender.

24. The question for an appellate court in these circumstances is not whether it would have come to a difference conclusion as the sentencing Magistrate.  Indeed, the very nature of a discretionary decision is such that different sentencing courts may, quite reasonably, come to different conclusions.  The circumstances that justify interference are well established.  The circumstances are limited, and have been the subject of recent clarification by the Chief Justice.[3]

    [3]    Police v Chilton [2014] SASCFC 76 per Kourakis CJ at [17]-[20].

25. As I have stated, I consider the decision arrived at by the Magistrate was within the exercise of her discretion. The question remains however whether the Magistrate has, as is submitted by the appellant, erred in law by incorrectly applying the test for suspension pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA).

26. To that end counsel for the appellant argues, though to be fair to him without great vigour, that by partially suspending the sentence of imprisonment it can be inferred that the Magistrate found good reason to do so. Having found good reason, he argues the Magistrate ought have to suspended the whole of the sentence of imprisonment pursuant to s 38(1). That submission cannot hold water as it conflates the discretion to be exercised in respect of s 38(1) with the discretion for s 38(2). The Magistrate did not find good reason to suspend the whole of the sentence imposed. She says so explicitly and exercised her discretion accordingly. However, having regard to the appellant’s circumstances, which the Magistrate had comprehensively outlined, she determined it appropriate to utilise s 38(2a) and afford some leniency to the appellant. The Magistrate was not in error in doing so.

27. The appellant has failed to demonstrate that there has been any error in the approach of the Magistrate or in the exercise of the discretion available to her to decline to wholly suspend the sentence.

28. The appeal is dismissed.