Fellows v POLICE

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
FELLOWS v POLICE
[2007] SASC 212
Judgment of The Honourable Justice David (ex tempore)
7 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Common assault – sentence of imprisonment – whether sentence can be suspended under Criminal Law (Sentencing) Act 1988 (SA) s 38 – error of law - partial suspension of sentence allowed under s 38(2a) of Criminal Law (Sentencing) Act 1988 (SA) when total sentence of imprisonment is between three and twelve months.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING
Criminal Law (Sentencing) Act 1988 (SA), referred to.

FELLOWS v POLICE
[2007] SASC 212
Magistrates Appeal
DAVID J. (ex tempore)

This is an appeal against sentence in relation to a charge of common assault and the revocation of a suspended sentence.
On 3 February 2005, the appellant pleaded guilty in the Adelaide Magistrates Court to indecent assault and other related offences and was imprisoned for two months, such term of imprisonment being suspended upon him entering into a good behaviour bond. That good behaviour bond was breached by a further offence of common assault which occurred on 14 April 2005 and which involved the same victim.
The same magistrate dealt with the charge of common assault and the application for revocation of the suspension of sentence. On 3 April 2007 he sentenced the appellant to nine weeks imprisonment for the assault, cumulative upon the two months which stood after the suspension was revoked. In other words, the appellant was ordered to serve a total of two months and nine weeks imprisonment.
The appellant was unrepresented at the sentencing submissions. It is clear that the magistrate took a serious view of the appellant’s behaviour concerning the assault and it is not for me to say, at this stage, whether the sentence he imposed was manifestly excessive or not. However, in his sentencing remarks, the magistrate said:
In the circumstances I am unable to suspend the sentence of nine weeks imprisonment having regard to the provisions of s 38 of the Criminal Law (Sentencing) Act because Mr Fellows is liable to serve an immediate term of imprisonment.
In saying that, the magistrate did not direct himself to the fact that the appellant’s term of imprisonment of two months and nine weeks could be partially suspended pursuant to s 38(2a) of the Criminal Law (Sentencing) Act (SA) and counsel for the Crown, at this hearing, concedes that that is the situation at law. Whether the magistrate would have done that or whether he should have done that is something which it would be inappropriate for me to decide, as the magistrate had all of the sentencing material before him at the time. However, as the appellant was unrepresented, and the appropriate submission that that was a sentencing option was not made, it might be that the magistrate did not direct his mind to that alternative.
I am of the view that the matter should be returned to the same magistrate for resentencing because the remark that he was unable to suspend the sentence of nine weeks imprisonment implies that he did not turn his mind to the sentencing option of suspending part of that term of imprisonment. The magistrate, of course, did not have the benefit of submissions of defence counsel.
The order of the Court is that the sentence will be quashed and the matter will be returned to the same magistrate for re‑sentencing.

The case of Fellows v Police involved the appellant who was convicted of common assault and sentenced to imprisonment. The appellant sought to appeal the sentence, arguing that the court had made an error of law in not allowing a suspension of the sentence under section 38 of the Criminal Law (Sentencing) Act 1988 (SA). The appeal was heard by the South Australian Court of Appeal. The central legal issue was whether the court could suspend the sentence under section 38(2a) of the Act, which permits partial suspension when the total sentence of imprisonment is between three and twelve months. The appellant contended that the trial judge had misapplied the law by not considering the possibility of a partial suspension of the sentence.

The court examined the statutory framework and the circumstances of the case, noting that the trial judge had sentenced the appellant to imprisonment for a period that fell within the range prescribed by section 38(2a) of the Act. The court found that the trial judge had not considered the possibility of partial suspension of the sentence as permitted by the statute. This omission was identified as an error of law. The court held that the trial judge should have considered whether a partial suspension of the sentence was appropriate, given the statutory criteria. Consequently, the appeal was allowed, and the matter was remitted to the trial court for reconsideration of the sentence with a proper application of the relevant statutory provisions.

The court concluded that the error of law required the sentence to be reconsidered by the trial court. The court did not alter the conviction but directed that the trial judge should properly apply the sentencing principles as set out in the Act, including the possibility of a partial suspension of the sentence. The final orders included the remission of the case to the trial court for reconsideration of the sentence in light of the court's findings on the statutory error.

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