Fischetto v Police - [2011] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FISCHETTO v POLICE
[2011] SASC 24
Judgment of The Honourable Justice David
1 March 2011
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - OTHER FACTORS - OFFENCE COMMITTED WHILE ON BAIL, PROBATION OR PAROLE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - TAKING OUTSTANDING OR FURTHER OFFENCES INTO ACCOUNT
Appeal against sentence of Magistrate – appellant pleaded guilty to assault police in breach of bond – Magistrate sentenced appellant to two weeks imprisonment for assault police – Magistrate ordered appellant to serve four months imprisonment in relation to prior suspended sentence – whether Magistrate erred in not suspending sentence for assault police – whether Magistrate erred in not excusing failure to comply with bond conditions – whether Magistrate erred in not finding special circumstances to reduce term of imprisonment – whether Magistrate erred in finding appellant’s actions were part of a pattern of behaviour – whether Magistrate erred in finding appellant’s actions were deliberate.
Held: Appeal dismissed – aggravating factors justified not suspending sentence for assault police – similarity of offences justified not excusing failure to comply with bond conditions – no special circumstances exist to render original sentence inappropriate – Magistrate was entitled to find appellant’s actions were deliberate and not out of character.
Criminal Law (Sentencing) Act 1988 (SA) s 58, s 58(3)(ii), s 58(4), s 58(5), referred to.
R v Buckman (1988) 47 SASR 303, considered.

FISCHETTO v POLICE
[2011] SASC 24
Magistrates Appeal: Criminal
DAVID J:
Introduction

This is an appeal against sentence.
The appellant appeared in the Adelaide Magistrates Court on 1 December 2010 charged with two counts, namely:
1.Aggravated assault, using an offensive weapon.
2.Assault police.
The appellant pleaded guilty to the charge of assault police and the first count of aggravated assault was withdrawn. Having pleaded guilty to that offence, the appellant admitted breaching a bond which he had entered into in March 2009 whereby he was given a suspended sentence of four months imprisonment. The term of the bond was for 12 months. That suspended sentence was for one count of assault and one count of refusing to supply a name and address which occurred on 22 March 2008, and one count of disorderly behaviour which occurred on 11 January 2009.
The Magistrate in the present matter sentenced the appellant to two weeks imprisonment on the charge of assault police (“the breaching offence”) and ordered that the appellant serve the four months imprisonment in relation to the suspended sentence as the bond had been breached.
The appellant now argues that the Magistrate erred in not suspending the sentence of two weeks imprisonment and also erred in not finding proper grounds existed to excuse the failure to comply with the bond, or alternatively should have found that there were special circumstances to reduce the term of imprisonment to be served in relation to the breach of bond.
Background facts

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fischetto v Police

Details

AGLC: Fischetto v Police [2011] SASC 24
Case: [2011] SASC 24
Decision Date: 1 March 2011

CaseChat Overview and Summary

The appellant appealed against a sentence imposed by a Magistrate, arguing that the Magistrate erred in several respects. The appellant pleaded guilty to assaulting a police officer in breach of a bond. The Magistrate sentenced the appellant to two weeks imprisonment for the assault and ordered him to serve four months imprisonment in relation to prior offences. The appellant contended that the Magistrate erred in not suspending the sentence for the assault, not excusing the failure to comply with the bond conditions, not finding special circumstances to reduce the term of imprisonment, finding that the appellant’s actions were part of a pattern of behaviour, and finding that the offence was deliberate rather than reckless.

The court considered the arguments raised by the appellant. The court rejected the grounds of appeal that the Magistrate erred in not suspending the sentence for the assault, not excusing the failure to comply with the bond conditions, and not finding special circumstances to reduce the term of imprisonment. The court held that the Magistrate was entitled to consider the nature and circumstances of the offence, the appellant's previous offending history, and the need for general deterrence in determining the appropriate sentence. The court found that the Magistrate was also entitled to find that the appellant's actions were deliberate and not out of character.

The court dismissed the appeal, holding that the Magistrate's sentence was appropriate and not manifestly unjust. The court found that the Magistrate had considered all relevant factors and had not erred in making the findings that the appellant's actions were part of a pattern of behaviour and that the offence was deliberate. The court did not consider it necessary to warn counsel of an intention to make these findings and invite further argument or evidence.

The court dismissed the appeal and affirmed the sentence imposed by the Magistrate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant now argues that the Magistrate erred in not suspending the sentence of two weeks imprisonment and also erred in not finding proper grounds existed to excuse the failure to comply with the bond, or alternatively should have found that there were special circumstances to reduce the term of imprisonment to be served in relation to the breach of bond.Background facts The breaching offence occurred in the early hours of the morning of 18 January 2010. The police attended at an address in Newton and arrested the appellant for aggravated assault. There was an altercation between the appellant and another person, as a result of which the appellant was put into the rear of a police sedan to be conveyed to the Adelaide Watch House cells. It is to be noted that the original alleged offending of aggravated assault was not pursued. While on the journey the police became alarmed at the defendant’s behaviour as he was hitting his head against the window of the vehicle. Evidently he was doing that because of a combination of being intoxicated and finding that his handcuffs were too tight. The police stopped the vehicle and opened the appellant’s door to prevent him from harming himself. The appellant was sitting in the vehicle abusing and swearing at the officers when the appellant spat on one of them. Saliva landed on the officer’s arm. Having done that, the appellant said, “Why don’t you come closer so I can spit on you properly?”. It was that act of spitting that constituted the charge of assault police to which the appellant pleaded guilty. On 27 March 2009 the appellant pleaded guilty in the Magistrates Court to aggravated assault and refusing to supply his name and address. Both of those offences took place on 22 March 2008. On that same occasion he also pleaded guilty to disorderly behaviour, that offending having taken place on 11 January 2009. For those offences he was given a suspended sentence of four months imprisonment upon entering into a bond to be of good behaviour with conditions for a period of 12 months. The charge of aggravated assault, for which he was given a suspended sentence, involved the appellant biting a police officer on the finger whilst the police officer was performing his duty.The matters personal to the appellant At the time of the present offending the appellant was aged 35 years. At the time of sentence he worked at the Royal Adelaide Hospital in administration and medical records, which was a position of trust and responsibility, and he generally had a good work record. He has a four year old son with whom he has fortnightly contact. He had started a new relationship of just over a year and his new partner was about to give birth to his second child. Of his own volition he commenced anger management counselling at the Norwood Medical Village.Appeal I set out the grounds of appeal in full:1.The Honourable Stipendiary Magistrate erred in not suspending the sentence of imprisonment;2.The Honourable Stipendiary Magistrate erred in not finding proper grounds to excuse the failure to comply with bond conditions;3.The Honourable Stipendiary Magistrate erred in failing to consider and in not applying the provisions of section 58(4) of the Criminal Law (Sentencing) Act 1988 as to whether special circumstances existed to reduce the term of imprisonment to be served in relation to the breach of bond;4.The Honourable Stipendiary Magistrate erred in finding the offending was part of a pattern of behaviour and “in character” for the appellant;5.The Honourable Stipendiary Magistrate erred in finding the offence of assault police was deliberate rather than reckless;6.The Honourable Stipendiary Magistrate erred in not warning counsel of an intention to make the findings specified in grounds 4 and 5 and inviting further argument or evidence on these issues.I will deal with each ground in turn.Ground 1 – The Honourable Stipendiary Magistrate erred in not suspending the sentence of imprisonment

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I would reject grounds 4, 5 and 6.Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.