Cullen v SA Police No. Scgrg-97-1536 Judgment No. S6486

[1997] SASC 6486

CULLEN  v  SA POLICE

Magistrates Appeal
Olsson J

The appellant appeals against two orders made against him on 22 August 1997 by a stipendiary magistrate.  He complains that they constituted a sentencing package which was both inappropriate to the circumstances and also manifestly excessive.

The appellant was, as at 7 July 1996, subject to a good behaviour bond.  He had, on 2 December 1994, been convicted of two counts of larceny and two counts of building break and felony, in respect of which he was  sentenced to imprisonment for nine months.  That sentence was suspended upon entry by him to be of good behaviour for a period of two years.

However, on 22 August1997, the appellant was, on his plea of guilty, convicted of the offence of assault occasioning actual bodily harm, committed on 7 July 1996.

The appellant was, originally, charged with unlawfully and maliciously inflicting grievous bodily harm, to which he had pleaded not guilty.  On the second day of the trial, the Crown agreed to accept a plea to the lesser offence of assault occasioning actual bodily harm.  The learned magistrate had, by then, received a substantial amount of oral evidence concerning the incident which was the subject of the charge.  However, that evidence had emanated from the victim and one of his associates.  No testimony had, by the time of the plea, been received from the appellant or any other defence witness.

I am not clear why the prosecution was minded to accept the appellant’s plea, bearing in mind that the assault in question consisted of him striking the victim in the face with a house brick.  That blow certainly caused serious structural damage to the victim’s face.

Some dispute arose on the appeal as to what was agreed between counsel and the prosecutor.  I propose to proceed on the basis that counsel indicated to the prosecutor that he reserved the right to contend that the assault had been the product of excessive self defence, and that the prosecutor  had not presented any submissions contrary to that proposition. Of course, no-one ever suggested that this was a wanton, gratuitous assault apropos nothing.  It had, of necessity, to be seen and evaluated in the context in which it occurred.

The learned magistrate dealt with the relevant factual circumstances in the course of his sentencing remarks.  He concluded, on the evidence which he had heard, that the basic events which  culminated in the assault were:

·....... the victim, a 20 year old male, was present at a party at a block of units at Seacliff on the night in question.  His brother and a number of other persons were also in attendance.

·at about 1.00 am the victim was  skate boarding on the front concrete driveway of the premises, when he was approached by the appellant and another person.  They enquired whether he knew a named person and he said that he did not.

·....... the appellant and his companion commenced to walk away.  The victim turned away from them and recommenced skateboarding near a wall.

·shortly thereafter a beer bottle came from behind him, narrowly missed his head and exploded on the wall then immediately in front of him.

·....... on turning around the only persons nearby were the appellant and his companion.  In the words of the learned magistrate “He assumed, ... quite correctly, that it was one of these two persons that threw the bottle”.  The learned magistrate indicated that he was prepared to conclude that it was the friend of the appellant (one Haythorpe) who had thrown the bottle.

·the appellant and his companion then recommenced to walk away, but they, at times, walked backwards, facing the victim and also his brother and other persons who were in the general vicinity.  The street in question was said to have been relatively dark.

·....... the victim, his brother and two others pursued the appellant and Haythorpe.  The victim confronted Haythorpe to remonstrate with him.  Each grabbed the other, but no blows were exchanged.  The other three persons with the victim did not, at that stage, do other than stand by and watch.

·the appellant noted the approach of the victim and his companions. He picked up a brick.  The appellant came up to them from behind and then to one side at the point at which the victim and Haythorpe were confronting one another.  He struck the victim in the face with the brick, without warning.  His blow literally caved in the victim’s face.

·....... as a consequence, the victim underwent  three surgical operations and the insertion of three steel plates to hold his face together.  He had most of his front teeth knocked out and required extensive remedial dental treatment.

The learned magistrate concluded that, whilst the appellant may well, honestly, have anticipated the development of serious trouble when the two men were confronting one another - none had, or was likely, to occur.  As he put it, the appellant’s assessment was “an unreasonable state of mind based on unreasonable facts”.  He categorised the appellant’s conduct as “totally inexcusable”; and pointed out that it could have led to fatal consequences.

I pause to comment that I have enormous difficulty with certain of these conclusions.  I think that Mr Griffin, of counsel for the appellant, is correct when he submitted that this appears to be a reflection of ex post facto thinking, engendered by an undue consideration of the victim’s expressed testimony in absence of any balancing testimony on behalf of the defence.

I agree that it is quite impossible to condone the over reaction of the appellant with its grave consequences to the victim.  Nevertheless, it is not difficult to accept as possible that there was a genuine perception that, late at night in a dark street, two young men were about to be set upon by a group of four angry young men who were likely to be exacting physical revenge for what had occurred.  To say that an apprehension of likely violence was unreasonable seems to me to ignore reality.

At the hearing before the learned magistrate the appellant conceded that his conviction of the assault constituted a breach of his bond to be of good behaviour.

Counsel for the appellant made detailed submissions in mitigation to the learned magistrate.  These supplied the following information:-

*.. the appellant was a single man then aged 22 years.  He was the father of a two year old female child;

*.. at the time he had weekly access to that child, who resided with his former de facto wife.  He paid $50 per week maintenance for his daughter;

*.. the appellant was a trainee butcher in permanent employment.  He earnt $450 per week and paid $135 per week rent.  He lived alone and had no family in South Australia;

*.. he had a good work record.  His employer was aware of the matter before the court and prepared to continue his employment (I am told that this is still the situation);

*.. the appellant came from a dysfunctional family background.  His father had been violent and abusive to his wife and his children and the parents had separated.  At that time, at the age of 15, the appellant and his brother had been left to wander on the streets until they obtained work.  He had only completed school to year 9 standard.  He attended 13 different schools, due to the domestic situation in which he found himself.

In addressing the narrative facts, counsel for the appellant told the learned magistrate that the appellant and Haythorpe had also been attending a party in the same neighbourhood as the location of the offence.  It was said that they had been looking for a mutual acquaintance who had gone to get some cigarettes, but not returned.  On seeing the victim they asked him whether he had seen their friend.  He told them that he had not.

No explanation was given to the learned magistrate as to how or why the beer bottle had been thrown.  It was   merely asserted that, when the victim and those with him approached Haythorpe, and the victim and Haythorpe had then grabbed one another, the appellant genuinely feared for the safety of both Haythorpe and himself.  He panicked, picked up the brick and hit Haythorpe.  It was argued that what occurred was no more than a spontaneous over-reaction to a confronting situation.

Counsel for the appellant submitted that the appellant’s ultimate plea evidenced his guilt and  remorse in relation to the incident and that, bearing in mind the factors of mitigation personal to him, any custodial sentence in respect of the appellant ought to be suspended.

It was also argued that the suspension of the earlier sentence ought not to be revoked, because:

».. the breaching offence was not similar in nature

».. the earlier offence was not an offence of violence

».. that offence had been committed when the appellant was unemployed and had just broken up with his de facto wife

».. the appellant had completed three-quarters of the term of his bond without incident and had rehabilitated himself

».. the breaching offence was of a spontaneous and not pre-meditated nature.

The learned magistrate both revoked the suspension of the appellant’s earlier sentence and also imposed an additional sentence of 15 months’ imprisonment in respect of the assault.  It was his view that the assault was, inherently, too serious to warrant the course of action proposed by Mr Petraccaro, of counsel for the appellant.  He felt that to accede to such a proposition would, justifiably, lead to community outrage.  On the other hand he considered that the sentence imposed for the assault was merciful, bearing in mind the serious injuries inflicted on a person who was innocent of any wrongdoing or aggressive action at the actual time of the assault.  He fixed a modest non parole period of 12 months, i.e. only one half of the total head sentences.

It is fair to say that, on the hearing of the appeal, Mr Griffin advanced submissions similar to those put to the learned magistrate.

He stressed the disastrous consequences to the appellant in terms of loss of employment, loss of his rented accommodation and inability to continue support for his young daughter.  He argued that, viewing the situation dispassionately, the sentencing package imposed was a disproportionate and crushing outcome, for what was no more than a spontaneous  over reaction in a self defence scenario.  It was, he said, a momentary fall from grace, of a type quite dissimilar from the offences which gave rise to the suspended sentence.  There had been no prior history of violence.  The sentencing strategy adopted had the potential to set at nought the significant steps towards rehabilitation, which had been achieved by the appellant, despite his appalling family background and the social defects stemming from it.

I have carefully studied the sentencing remarks published by the learned magistrate and all of the material placed before me.  I am compelled to accept the argument that the sentencing remarks indicate that the learned magistrate does not appear to have accorded due recognition to the self defence scenario and what was, with all due respect to him, a not unreasonable, genuine apprehension that physical retribution was about to be exacted on Haythorpe and, possibly, himself.

Even giving due regard to the serious injuries inflicted and the excessive force used it had firmly to be borne in mind that:

-       there were four potential aggressors

-....... the decision to react in self defence was an ill considered action taken in the heat of the moment by a person who had been drinking

-....... the victim was partly the author of his own misfortune by adopting the role of the aggressor, in pursuing the two men with a group of three other persons down a dark street and then seizing Haythorpe.

Even accepting that this was a nasty incident with a serious and unfortunate outcome, justice required that the overall situation be viewed on a dispassionate and non-emotive basis for what it really was.  There is force in the criticism that the learned magistrate, influenced by somewhat one sided evidence which he had heard, became passionate to the extent that he lost some level of objectivity. 

I think that he allowed himself to unduly characterise the offending conduct by reference to the injuries sustained by the victim, rather than reflect upon the inherent  culpability of the appellant on the best reasonable self defence case basis to which the appellant was entitled.  It follows that he fell into error in his approach.  I must, therefore, reconsider the  sentencing strategy appropriate to this case.

Mr Griffin realistically accepted that this was a situation which, on a proper balancing of the factors adverted to in section 10 of the Criminal Law (Sentencing) Act 1988, called for the imposition of an appropriate, albeit modest, custodial head sentence.

However, he strongly argued that, notwithstanding the earlier suspension of a sentence, this was a case which warranted extending the benefit of a further suspended sentence to the appellant, in recognition of his youth, stable employment situation and steady progress towards rehabilitation.

Whilst minds might reasonably differ on this issue I am satisfied that the mitigating circumstances and facts personal to the appellant warrant this somewhat unusual course.  I am quite satisfied that the community interest will best be served by fostering the appellant’s continuing rehabilitation and stable employment situation, on a basis whereby there will be a powerful disincentive against further offending.

As to the assault conviction I allow the appeal, and set aside the sentence imposed.  I substitute a sentence of nine months’ imprisonment, to be suspended on the entry by the appellant into a bond of $500 to be of good behaviour for three years and be subject to the supervision of a probation officer.

I agree with Ms Juttner of counsel for the Crown that the inherent seriousness of the assault offence was such as virtually to mandate the revocation of the earlier suspended sentence.  However, two factors here fall to be considered.  The first is that it must be borne in mind that the appellant had successfully negotiated the bulk of the term of his earlier bond.  It only had a few months still to run.  Second, he has already been in custody for almost four months.

In my view, bearing in mind the mitigating factors attending the breaching offence, it was both crushing and unduly onerous on the appellant to require him to serve the whole of the earlier suspended sentence. I am of opinion that, within the meaning of section 58(4) of the Criminal Law (Sentencing) Act, there are special circumstances justifying a reduction of the term of the earlier sentence to the time which has now actually been served.

I therefore allow the appeal in relation to the revocation order, set it aside and order in lieu:-

1.     That the suspension of the relevant sentence be revoked.

2...... That such sentence be reduced to the time for which the appellant has actually been in custody in relation to these proceedings to date.

3.That the time so spent by the appellant in custody be counted in serving that sentence.

In practical terms this means that the appellant may now be released on entry into the further bond to which I have referred.