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Frank v Police

Frank v Police

Case [2000] SASC 245 19 July 2000

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FRANK V POLICE
[2000] SASC 245

Magistrates Appeal

LANDER J. This is an appeal against sentence. The appellant was charged with four offences on two informations; on the first, with the assault of a family member, Natasha Coulthard and failure to comply with a domestic violence restraining order; on the second, with unlawfully wounding a police officer and assaulting a police officer with intent to resist or prevent his lawful apprehension. All offences were alleged to have occurred on 28 June 1999 at Indulkana.
He pleaded not guilty but after a hearing in the Magistrates Court he was convicted of all four offences.
The Magistrate found that the appellant had thrown rocks at Natasha Coulthard one of which had hit her and caused her to fall to the ground. The appellant then stood over her with a stick, a Nulla Nulla, and struck her. Upon those findings he was convicted of the charge of assault on a family member.
The appellant admitted in his evidence that he knew he was not allowed to be Indulkana but went there because he was asked to do so by Natasha Coulthard. On those admissions he was convicted in respect of the second charge.
After he had committed those two offences a number of persons tried to convince the appellant that he should give himself up to the authorities. He refused. Police at Marla were called and four police officers attended. They and two Aboriginal aids tried to convince the appellant to give himself up. He ignored all suggestions to surrender himself and left his house brandishing a knife. He threatened to kill himself. He also threatened to cut police and kill police. He told the police that they would have to fight him to arrest him. He ran away from the police officers and was pursued by Senior Constable Adams. When Senior Constable Adams came close to the appellant, the appellant struck out with his knife and stabbed Senior Constable Adams in the leg.
The appellant claimed that Senior Constable Adams had struck him on the forehead with a baton causing a cut to the appellant’s head. That claim was specifically rejected by the Magistrate.
On those findings the Magistrate found the appellant guilty of the third and fourth offences.
The cut to Senior Constable Adams’ leg was significant. It required 12 sutures and he was off work for two or three weeks.
A victim impact statement was provided by Senior Constable Adams. He claimed, in that statement, that the assault had affected him emotionally. He had become depressed, angry and experienced mood swings. His relationship with his wife had deteriorated due to his irrational mood swings. Senior Constable Adams consulted the police psychologist in relation to the matter.
The appellant was born on 22 September 1975 and therefore was 23 years of age at the time of the commission of these offences.
He is an Aboriginal who lives on the Pitjantjatjara lands at Fregon.
He has appeared before the courts reasonably regularly…

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.

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Details

AGLC: Frank v Police [2000] SASC 245
Case: [2000] SASC 245
Decision Date: 19 July 2000

CaseChat Overview and Summary

In the case of Frank v Police, the appellant, Frank, appealed against the sentence imposed on him by the Magistrates Court. Frank was convicted of four offences, including assaulting a family member, failing to comply with a domestic violence restraining order, unlawfully wounding a police officer, and assaulting a police officer with intent to resist or prevent lawful apprehension. The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the non-parole period was too high. The court found that the Magistrate did not give Frank full credit for time spent in custody and that the non-parole period set was manifestly excessive. The appeal was allowed, and the sentences set aside. On the first information, a sentence of imprisonment of nine months was imposed, and on the second information, a sentence of imprisonment of 16 months was imposed, which was cumulative upon the sentence imposed on the first information. A non-parole period of 15 months was set, and the sentences were to be taken to have commenced on the day Frank was taken into custody, 28 June 1999.

Orders