Daly v Police No. Scgrg-99-235 Judgment No. S143

[1999] SASC 143

DALY v POLICE

[1999] SASC 143

Magistrate’s Appeal

1. MARTIN J. The appellant appeals against the sentence of one month's imprisonment imposed following his plea of guilty to a charge of common assault contrary to s39 of the Criminal Law Consolidation Act. 

2. In essence, the appellant complains that the sentence is manifestly excessive.  Counsel put this on two bases.  First, that it was not appropriate to impose a sentence of imprisonment.  Secondly, if a sentence was imposed, the magistrate erred in declining to suspend the operation of that sentence. 

3. The appellant is 46 years of age and has been steadily employed in the security industry for approximately 17 years.  During the evening of Friday, 6 March 1998, the victim was refused service at the bar of the Eureka Tavern in Salisbury and was escorted to the door of those premises leading to a carpark area.  As the victim was progressing in some fashion through the carpark, he came close to the entrance to the games area which caused the appellant to approach and tell him to move.  The victim grabbed at the appellant's vest and when he refused to let go, the appellant slammed the victim's head into a motor car. 

4. The victim was moderately affected by alcohol and had been refused service because he was being abusive to bar staff.  The magistrate was told that the appellant lost his patience.  The victim sustained a blood nose, with some swelling and pain.  Police also observed that his left ear lobe was bleeding.  It appears that the appellant also sustained some injuries, although precisely how that occurred is not clear.  When he was interviewed by the police on the 19 March, he said he had sustained a cut on his left ear, his right eye was swollen for about four days and a sore right cheek. 

5. The version given by the victim was different from the facts that I have just recited, but those facts are essentially taken from the record of interview with the appellant which was the basis on which the magistrate imposed sentence. 

6. The difficulty facing the magistrate was the prior offending by the appellant.  Most recently, in October 1997, the appellant pleaded guilty to an assault and was fined $200.  It was therefore approximately five months between the imposition of that fine and the assault for which the appellant was before the magistrate. 

7. In November 1990, the appellant was convicted of two counts of assaulting police and was fined $150.  He also appeared in the Adelaide Children's Court in December 1968, where he was fined $40 for assault.  The previous occasion for which he was fined $200 in October 1997 also involved his work in the security industry. 

8. He apparently did not learn from the leniency that was extended to him on that occasion.  The magistrate correctly observed the conduct of this type by security personnel generally and by the appellant in particular needs to be discouraged.  Both general deterrence and deterrence of the individual offender require careful consideration in this particular matter. 

9. During the course of his sentencing remarks, the magistrate, having ordered that the appellant be sentenced to one month's imprisonment, said:

   “In my view, it is not appropriate, nor does Mr Templeton ask, that any sentence be suspended.”

10. Mr Templeton is counsel in this court.  He acted for the appellant before the magistrate.  As to the attitude taken before the magistrate, Mr Templeton has indicated that because the prosecution was not seeking imprisonment, he did not address any submissions to the magistrate about whether a sentence of imprisonment was within the proper range of the sentencing discretion.  It followed that he made no submissions concerning suspension should his Honour determine that a sentence of imprisonment was required.  It is a pity that those matters were not aired thoroughly before the magistrate. 

11. Counsel for the respondent has acknowledged that the penalty could be reasonably described as harsh, but has urged that it is not outside the proper range of the sentencing discretion.  She points particularly to the four convictions for assault within a period of nine years and the absence of any specific errors by the magistrate. 

12. Section 11 of the Sentencing Act directs that a sentence of imprisonment must not be imposed unless certain matters exist in the opinion of the court.  Having regard to those provisions, I am satisfied that it was not outside the range of the magistrate's discretion to impose a sentence of imprisonment.  The difficult question is whether his Honour erred in not suspending that sentence. 

13. As Olsson J observed Ienco v Kraft (1990) 53 SASR40 at 44 and 45:

    “It is the clear policy of the Sentencing Act the defenders should only be required actually to serve custodial sentences either because the inherent seriousness of the offending clearly demands such an approach or alternatively because the conduct of the offender and the relative circumstances in general inexorably point to that course as a necessary sentencing strategy of last resort.”

His Honour also observed that:

“The whole tenor of the statute is that primary emphasis ought to be given to rehabilitation.”

I am concerned that the absence of submissions concerning the issue of suspension may have led his Honour to a rather peremptory dismissal of the option of suspending the sentence without addressing the central question as described by Olsson J.  There can be no doubt the assault was most unpleasant and it had the potential to cause serious injury.  Fortunately for both the victim and the appellant, there was no serious injury.  The prior offending resulted on each occasion in moderate fines which suggest that they were not serious examples of this type of offending. 

1. In addition, the appellant had not previously been subjected to a sentence of imprisonment, nor had he been given the opportunity through suspension of a sentence or some form of bond to demonstrate that he was able to comply with terms of bonds and to rehabilitate himself.  He was entitled to careful consideration of the issue of suspension.  Bearing in mind the gravity of the offence, his record and the need for deterrence had to be weighed against his plea of guilty, his cooperation with the police and the fact that he is 46 years of age and in constant employment.  I have been told that he lives in a de facto relationship of some years standing which is a stable relationship.

2. In all the circumstances, it appears to me that his Honour has failed to apply the principle that serving the sentence was a necessary sentencing strategy of last resort.  I have determined, therefore, that the appeal should be allowed.  I am not minded to interfere with the period of imprisonment imposed, but in all the circumstances the sentence of one month imprisonment will be suspended upon the appellant entering into a bond in the sum of $400 to be of good behaviour for a period of two years. 

3. The order for court fees and the Victim of Crime levy which apparently amounted to $124 will stand.