DONNELLY v Police - [2014] SASC 193

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DONNELLY v POLICE
[2014] SASC 193
Reasons for Decision of The Honourable Chief Justice Kourakis
17 December 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
The appellant was drinking alcohol at the Backpackers Hotel in Glenelg one evening, after drinking for most of that day. Upon leaving, the appellant’s girlfriend pointed out a man who had allegedly splashed her with his urine whilst urinating. The appellant approached the man and punched him in the face. The victim fell to the ground and lost consciousness, sustaining a large gash to the back of his skull, which bled heavily and required 22 staples.
The appellant was convicted and sentenced to seven months imprisonment, suspended on the condition of a two year good behaviour bond. The appellant appealed against his sentence. Whether the Magistrate sentenced on an incorrect factual basis. Whether the Magistrate erred in recording a conviction. Whether the sentence was manifestly excessive.
Held (dismissing the appeal):
The factual errors made by the Magistrate are immaterial (at [3] & [24]), and there was no failure to accord procedural fairness (at [29]).
The appellant's contentions that the Magistrate erred in recording a conviction and that the sentence was manifestly excessive is rejected. The need for deterrence of offences of this kind means that less weight can be accorded to the personal circumstances of the offender (at [4] & [31]).
Criminal Law (Sentencing) Act 1988 (SA) s8, referred to.
R v Lutze [2014] SASCFC 134., applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"Manifestly excessive", "Contrition", "Undue weight - insufficient weight"

DONNELLY v POLICE
[2014] SASC 193
Magistrates Appeal: Criminal

KOURAKIS CJ: On 14 August 2014, on the morning of the date fixed for his trial, the appellant pleaded guilty to the offence of assault causing harm. The appellant had indicated a guilty plea a week earlier. On 18 August 2014, the appellant was convicted and sentenced to seven months imprisonment, which was suspended on the condition that he enter into a bond to be of good behaviour for two years in the amount of $1,000.
The appellant appeals against his sentence on the grounds that:
1.The Magistrate sentenced on an incorrect factual basis.
2.The Magistrate erred in recording a conviction.
3.The sentence was manifestly excessive.
I foreshadow that I accept that the Magistrate made two factual errors in her sentencing remarks, but I find that they are immaterial. I reject the contentions that the Magistrate erred in recording a conviction and that the sentence was manifestly excessive.
There is strong community concern about the nature and extent of street violence perpetrated by intoxicated offenders. Offences of this kind all too often result in serious injury or death. It is generally happenstance whether or not crippling injuries or death are caused by offences of this kind. The deterrence of violent and drunk offenders must be reflected in the sentences imposed in those cases in which fate spares the victim serious injuries as well as in those cases in which death or serious injury results. The relatively greater need for deterrence in sentencing for offences of this kind means that relatively less weight can be placed on the personal circumstances of the offender.
I am not satisfied that the Magistrate made any appealable error in declining to exercise her discretion to not record a conviction and in fixing the sentence she did. My reasons follow.
Factual circumstances
There was no dispute before the Magistrate, or on appeal, over the core factual circumstances of the offences. Shortly after midnight on Sunday 2 February 2014, the appellant and his girlfriend were outside the Backpackers Hotel in Glenelg where they had celebrated the birthday of a friend. The appellant had been drinking alcohol from the time he finished his work as a construction worker at about 10.30 am on Saturday 1 February 2014. He arrived at the Backpackers Hotel at about 8.00 pm where he continued drinking. When the hotel closed at midnight the appellant and other patrons, including his girlfriend, spilled out onto the street.
Outside the hotel the appellant fell into a conversation with an old school friend whilst his girlfriend went to find a taxi. On her return, his girlfriend reported to him that she had been splashed by urine from someone who had been urinating in the middle of the street. She pointed out a man in the street. The appellant immediately walked over to the victim, F, and struck him with a single punch to his face. F was not the man who had urinated in the street but he had just happened to be standing behind the man pointed out by the appellant’s girlfriend. F was knocked to the ground sustaining a large gash to the back of his skull, which bled heavily. A friend came to his assistance and cradled his head. F lost consciousness. The gash to F’s scalp required 22 metal staples to treat it. F was absent from work for a week.
A blood alcohol analysis of the appellant conducted approximately an hour after the events revealed a concentration of 0.105 per cent. It is not known what the blood alcohol concentration was at the time of the assault.
Notwithstanding the limited physical injuries, the assault left F, and his family and friends, with ongoing adverse psychological consequences. His parents have become more concerned about the safety of F and his brother when they go out at night. F feels more anxious when out at night amongst crowds of people who have been drinking alcohol. His friend who came to his assistance on the street continues to be affected by the memory of the assault.
Contrition
On the day after the assault, 3 February 2014, the appellant wrote to a friend of the victim, who had made contact with him on Facebook, as follows:
Mate I am so sorry, my missus came up to me and said I guy tried pissing on her and I asked her who and she pointed at ur mate, but the guy pissing was behind m, I thought it was him. I no it does not mean much and I don’t expect u or ur mate to forgive me but I am SOO sorry, I would not just go up n hit a random person for no reason. I am honestly so sorry nothing I can say will make up for it but I swear to u I thought he had pissed on her. I no ur mate would not want anything to do with me but can you apologise to him and let him no I would like to apologise to him in person. Truely sorry.
Later the exchange continued with the appellant saying:
Ur 100% right, I am embarrassed and ashamed of what I did to ur mate. I can imagine how I would feel if that was my mate. Not that it changes anything but I had been drinking since 10 in the morning and was really drunk and to b honest dnt even remember doing it.
Later, the appellant again expressed his apologies in a letter to F. He sought a face to face meeting to make the apology personally but that was declined. The appellant also made a payment of $3,000 in compensation in the week before trial.
Personal circumstances
The appellant is 27 years of age. The appellant has relevant prior offences. In 2007, he was fined, without a conviction being recorded, for offences of indecent language and resisting police.
The appellant was educated to Year 12 level at St Michael’s College, graduating in 2004. He then found work as a labourer and concreter before establishing his own business when he was just 21. After the financial collapse of the builder for whom he did much work, the appellant again sought employment. He has been employed for just over a year with another construction firm, SGF Group Pty Ltd (SGF).
The managing director of SGF, Mr Fontanarosa, provided a letter confirming the appellant’s employment. Mr Fontanarosa was so impressed by the appellant’s work ethic and the quality of his work that he engaged him as a supervisor of a team of workers. SGF undertakes much government work for which police clearances are required. Mr Fontanarosa claimed that if the appellant were convicted, he would have to terminate his employment. That claim was not much more than a bare assertion but was accepted by the Magistrate. Importantly, the nature of the clearances required by the government and other SGF clients was not made clear. For example, it is not known whether the clearances were limited to the question of the recording of a formal conviction or whether the clearance extended to any finding of guilt for an offence. If the latter, the exercise of the discretion not to record a conviction could be of little consequence.
A character reference of one of the appellant’s neighbours was also provided. She described the appellant as a very hard working person who cared for his family and friends and who was “very well respected within the neighbourhood”.
A letter dated 6 August 2014, from the Drug and Alcohol Services of South Australia, confirmed that the appellant had sought counselling for his alcohol abuse and that he appeared highly motivated to engage in treatment.
The appellant’s local Parish Priest described him as a “respectful young man who acts with responsibility and integrity” and who had “a contrite spirit for what now brings him before the court”.
The Magistrate’s reasons
Sentencing submissions were made on the day the matter was to proceed to trial. The Facebook communications were tendered and received on the basis that the appellant’s account of the events therein was not disputed.
The Magistrate asked the prosecutor to provide the statements of the witnesses on which he would have relied had the matter proceeded to trial as to their observations of the assault itself. The prosecutor provided a number of witness statements which, save for one or perhaps two, were sworn. The witness statements are consistent with the agreed factual basis of the appellant’s plea.
In relating the circumstances of the offence itself, the Magistrate said:
You maintain that your girlfriend had gone outside to hail a taxi and while doing so another man was urinating on the road nearby and splashed her with urine. She went inside and reported what had happened to you, which prompted you to go outside. You went straight up to Daniel Ferrier [sic] whom you had never met and had nothing to do with any of this and you punched him with a clenched fist to the side of the head.
It will be observed from that passage that the Magistrate misapprehended the appellant’s location when first told about the splashing of urine on his girlfriend. The Magistrate continued:
During a brief police interview about an hour later you acknowledged what you had done and what caused you to do it. I give you credit for speaking with the police about it shortly afterwards. You made it clear that you regretted doing what you did and you wanted to express your sorrow. Indeed, Facebook was used to communicate with one of Mr Ferrier’s friends about it and you indicated that you were embarrassed and ashamed of what you did, but you made it plain that you were really drunk and didn’t even remember doing it and couldn’t explain why you would have done it. I accept that you were very sorry about your actions shortly after you punched the young man and I give you credit for that. You are entitled to credit for cooperating with the police and for indicating your remorse at this very early stage. A lot of people do not do that. In these circumstances it is disappointing that the matter was thereafter disputed to the point where it was listed for trial. Your counsel has given some explanation for that which I bear in mind, including some reference to a defence of self-defence. In my view the prosecution case against you was compelling from the outset. I am prepared to allow a little over 10% discount for your late plea.
I draw attention to the Magistrate’s acceptance of the appellant’s early expression of remorse. The Magistrate then dealt with the consequences of a conviction as follows:
The sole director; Dario Fontanarosa has written a letter in which he is praiseworthy of your skills as supervisor of a group of men, working on projects for various entities, such as Telstra and Local Councils. It is stated that the work undertaken requires police clearance and that if you are convicted of this offence, your employment would be terminated. Sadly it is not uncommon to receive documentation of this type in our courts pointing to the threat of loss of employment following convictions. I bear the potential effect of a conviction carefully in mind in determining how to proceed.
It is clear that the Magistrate understood Mr Fontanarosa’s position to be that the appellant “would” lose his employment. The Magistrate’s use of the words “potential effect” is merely an acknowledgement that necessarily there can be no absolute certainty about future events.
The Magistrate continued:
I note that you have paid a generous amount of compensation to the victim. You have also written a letter of apology to him and you instruct that you attempted to arrange a meeting to enable you to apologise directly to him in recent times. However the offer was declined. I have no doubt that you are genuinely remorseful. I also have no doubt that you are very keen to continue working for your employer.
Again, the Magistrate made it clear that she accepted the appellant’s remorse as genuine. The reference to the attempt to meet F in person in recent times does not necessarily show that the Magistrate overlooked the offer to the same effect made on the very next day after the offence. Even if it did, that defect is immaterial given her Honour’s acceptance of the depth of the appellant’s remorse. The Magistrate proceeded to sentence as follows:
I am of the firm view that there is a need to impose a sentence which acts not only as a personal deterrent, but sends a signal to others that this type of offending is not to be tolerated. I have formed this view having given particular consideration to the arguments advanced on your behalf.
…
Notwithstanding the factors in mitigation which apply here, as well as the likely effect of a conviction upon your current employment status, I regard your offending as being sufficiently serious to justify a sentence of imprisonment. Any other sentence would be inappropriate having regard to the circumstances. The community needs protection from intoxicated people who are minded to behave in this way.
The applicable maximum penalty for the offence is three years. I impose a term of seven months, reduced from eight for your plea of guilty. There will be a conviction. I’m prepared to find good reason to suspend the term of imprisonment on condition that you enter into a bond to be of good behaviour for two years in the amount of $1,000. I need to warn you that if there is offending of a relevant type during the two year good behaviour bond you may be brought back to court, the bond may be cancelled and you may be ordered to serve that term of seven months imprisonment. You are to pay the victims of crime levy and prosecution fee. I will waive the court fees.
The grounds of appeal - incorrect factual basis
The appellant’s first complaint is that the Magistrate proceeded on the basis that the appellant was in the hotel when his girlfriend first reported to him that she had been splashed with urine. The respondent accepts that the Magistrate erred but contends that it was immaterial. The appellant, however, submits that the error may have led the Magistrate to treat the offence as having been pre‑meditated.
The Magistrate’s remarks show that her Honour dealt with the offence on the basis that the appellant’s reaction was immediate and spontaneous. The Magistrate never suggested that the appellant had time enough in which to think more calmly. I reject the appellant’s submission. The error is immaterial.
The appellant next complains that by introducing the appellant’s account of the offence with the words “you maintain”, the Magistrate was indicating that she rejected the appellant’s account of the preceding events. I reject that submission. The appellant’s submission reads too much into the language of the Magistrate. The expression “you maintain” is no more than a convenient way of introducing the factual basis put by the appellant. It was a factual basis with which the police had not taken issue. The Magistrate did not expressly reject the appellant’s account. Her Honour’s treatment of the matter is consistent with an acceptance of his account.
The appellant next contended that the Magistrate erred in requesting and receiving the police witness statements. However, the appellant’s counsel did not submit that the Magistrate referred to, or relied on, a fact or facts asserted in any of those statements that were inconsistent with the agreed factual basis appearing in the Facebook communications.
The prosecution and defence cannot agree to constrain the wide power of a court to inform itself as it sees fit on sentencing matters.[1] In this case, the prosecutor was at liberty to decline to provide the material requested. If he had done so, the Court would have been bound to sentence as best it could on the information provided unless there was good reason to take the exceptional course of the Court itself calling a witness.
[1] Criminal Law (Sentencing) Act 1988 (SA), s 8.
Be that as it may, the prosecutor did provide the requested statements and the appellant well knew that they had been provided. The appellant was at liberty to provide any further material he wished in the light of the provision of those statements by the prosecutor. The appellant was also free, of course, to challenge any of the statements and to require the witnesses to be called for cross‑examination. The appellant did not do so. That is not surprising because, as I have already observed, the material was consistent with the agreed factual basis. True it is that the witness statements did not depose to the appellant’s girlfriend informing him of the urine sprinkling incident that led to the assault. That is not surprising. They were in no position to have heard her reporting the matter to the appellant. As I have already found, the Magistrate did sentence the appellant on the basis that it was his girlfriend’s report which prompted him to assault F.
There has been no miscarriage, and no failure to accord procedural fairness, by reason of the provision of the witness statements to the Magistrate.
Effect of a formal conviction
The assault was a serious one. Both the appellant and F were fortunate that the injuries F suffered were not more serious. The Magistrate accepted that the appellant would lose his employment. However, on the other hand, the evidence did not show that not recording a conviction would necessarily have secured his employment. If the police clearances required by the principals to whom SGF contracted were not limited to those offences for which a conviction was formally recorded, it would follow, on Mr Fontanarosa’s letter, that the appellant would still lose his employment. An affidavit of Mr Fontanarosa placed before me on the appeal also deposed to contracts SGF had for the supply of products in the United States. Mr Fontanarosa deposed that if the appellant were able to travel to the United States, Mr Fontanarosa would send him there in connection with the supply of those goods. However, again, there was no material to suggest that the appellant was more likely to be granted a visa to visit the United States if a formal conviction was not recorded. Again, the point must be made that it might well be that his prospects of success in obtaining a visa would be determined by the fact of the commission of an offence rather than by the circumstance of whether the Court recorded a conviction or not.
Sentence not manifestly excessive

This Court has long been concerned about outbreaks of public violence, particularly between young men, and has recognised that, even in the case of short sentences imposed on first offenders, the need to deter violence may demand that those sentences of imprisonment be served immediately. The sentence starting point of eight months might be regarded by some as a high one. A lower starting point might have been chosen to reflect the reasons which caused the appellant to lose control. However, I cannot say that the sentence was outside of the permissible range and, therefore, manifestly excessive.
Conviction properly recorded
The high relative importance of general deterrence in offences of this kind is in itself a strong reason to record a conviction. There are additional reasons to do so in this case.
Despite the very positive aspects of his character attested to by the references, the fact remains that the appellant’s character was not exemplary. He had a fraught drinking history which had led him to street offending in the past.
The connection between alcohol abuse and street violence is well known. Unfortunately, all too few people acknowledge, or attempt to do anything about, their excessive alcohol consumption before they are brought before the courts on serious offences. There was no reason to think that the rehabilitation would be much assisted by not recording a conviction.
Moreover, the weight which could be given to the appellant’s contrition in considering whether or not to record a conviction was limited. By pleading not guilty on a defence which was bound to fail, he had delayed the expeditious resolution of the matter to which the public and F were entitled.
I treat the ground that the Magistrate erred in convicting the appellant as a complaint that the recording of a conviction was manifestly unreasonable or, to put it in another way, that it was not open to the Magistrate to record a conviction. In support of that ground, the appellant submitted that the Magistrate had overstated the seriousness of the offending, the need for personal deterrence and the public interest in deterring offences of this kind. The appellant also contended that conversely the Magistrate had placed insufficient weight on the appellant’s prior good character and remorse. I repeat observations I have often made that the complaints that too much or too little weight has been given to a sentencing consideration does not, standing alone, justify appellate intervention. In this respect, I indicate my agreement with the statements of principle expressed in the joint judgment of Vanstone and Parker JJ in R v Lutze.[2]
[2] [2014] SASCFC 134.
In all of the circumstances of this case, there were good reasons to decline to exercise the discretion not to record a conviction. Another Magistrate may have acceded to the appellant’s request because of the appellant’s prior good character and early contrition. However, it is not a sufficient ground, on which to set aside an exercise of the sentencing discretion, that the sentencing court gave relevant considerations more or less weight than another sentencing court may have given them. It was open to the Magistrate to decline to exercise her discretion not to record a conviction.
Conclusion
I dismiss the appeal.