Giblin v Police No. Scgrg-97-1598 Judgment No. S6533

[1998] SASC 6533

GIBLIN v POLICE

Matheson J (ex tempore)

The appellant was charged on information in the Magistrates Court at Christies Beach with the following two counts:

1. On the 9th day of December 1995 at OLD NOARLUNGA in the said State, [he] assaulted George Leonard HOLLITT, a person above the age of 12 years by punching, thereby occasioning him actual bodily harm. ...

1. On the 9th day of December, 1995 at OLD NOARLUNGA in the said State, being a person reasonably suspected by David Richard BALLARD, a member of the police force of having committed an offence namely assault occasioning actual bodily harm, and upon being required by that member of the police force to state his full name and address [he] stated a name that was false."

He pleaded not guilty to the first count and guilty to the second count.   He was found guilty of the first count, and the learned magistrate then convicted him on both counts.  He sentenced the appellant on 16 October 1997.  He imposed one penalty of 12 months and fixed a non-parole period of nine months, and ordered the appellant to pay $427 costs. 

The notice of appeal was not filed until 24 November, and thus was substantially out of time.  In an affidavit admitted by me, his counsel deposed inter alia:

1. By letter dated 17 October 1997 I reported to the Modbury office of the Legal Services Commission concerning the sentence imposed, inter alia, that the appellant might wish to appeal and that if I obtained instructions I would write to the Commission to seek funding if appropriate.  By letter of the same date I wrote to the appellant at Yatala Labour Prison.  The appellant responded by letter dated 20 October 1997 seeking further explanatory advice about any appeal.  I wrote a letter of advice in response to the appellant dated 22 October 1997.  The appellant then wrote by letter dated 28 October 1997 and received by me on 30 October1997 giving instructions to proceed with the appeal. I then wrote to the Legal Services Commission by facsimile dated 11 November 1997 seeking funding for the appeal.  I then drafted the Notice of Appeal and by letter dated 17 November 1997 I forwarded a copy of the draft Notice of Appeal.  By letter dated 18 November 1997 the Legal Services Commission granted legal aid for the appeal.  By letter dated 21 November 1997 I forwarded the Notice of Appeal to the Christies Beach Magistrates Court for filing.

1. I seek an extension of time for the filing of the Notices of Appeal herein by virtue of the need to correspond with the appellant whilst he was at jail, the need to apply for legal aid, the need to forward the papers to the Christies Beach Magistrates Court and fully advise the appellant about  his rights of appeal.  The appellant only communicates with me by telephone messages through his partner or by correspondence. He does not communicate by telephone whilst he has been in jail.  A first draft of the Notice of Appeal was prepared and then a second draft of the Notice of Appeal was prepared before the Notice of Appeal was settled in its final form.  The drafts and settling were done in the period between 11 November 1997 and 17 November 1997 before legal aid had been approved.  At the time my secretarial support was for two or three days per week."

If I thought there was any real merit in the appeal I might be disposed to grant an extension of time, but for the reasons I am about to give, I have finally concluded that there is not sufficient merit to justify me interfering, even if there were no problem about  time. 

The facts stated briefly were as follows: the victim and his de facto wife Milly Jones and their child, and a woman by the name of Roslyn Jacobs went to the property in which the appellant and his de facto were living at Malpas Street, Noarlunga.  Apparently Roslyn Jacobs wanted to see his de facto about some matter.  The two women went to the house and an argument developed between Jacobs and Shirley Farrant.  That argument progressed to a fight between Jacobs and the appellant's de facto wife.  The appellant went to Hollitt's motor vehicle.  He punched him through the open driver's side window, and caused severe injury to his right eye and a fracture to the right eye orbit.  

His Honour said 'I am in no doubt that at the time of the offence you were affected by alcohol.  That might go some way to explaining your behaviour, but it most certainly does not excuse it.'   I agree, and clearly the assault was unprovoked. 

One of the problems facing the appellant on this appeal was his prior record of offending.  In 1990 in the Magistrates Court at Holden Hill he was convicted of the offence of assault occasioning actual bodily harm and sentenced to imprisonment for 18 months with a 14-month non-parole period.  He also has a number of convictions for common assault, and other convictions for what are commonly called street offences. 

The learned magistrate had a psychiatric report and a presentence report relating to the appellant.  Both refer to problems in his personal life, including continuing grief at the death of his father, depression, and problems arising from drinking alcohol to excess. 

In my opinion, this case was clearly one for a substantial custodial sentence.  The only aspect that has occasioned me any hesitation is the fact that the appellant had spent some time in custody on this and other matters prior to his Honour's sentence.  Notwithstanding the assistance given to me by counsel, I find it very difficult to state precisely - and indeed the magistrate found difficulty in finding precisely - just how much of that period should be allocated to the offence under consideration, but it would appear to me that, at most, it amounted to a period of four months. 
His Honour said:

"I do, however, take into account the fact that you have spent time in custody on this matter, and I make a fairly substantial reduction taking that factor into account."

In my opinion, the fixing of 12 months for the head sentence, even allowing for that period in custody, was entirely appropriate.  I have hesitated about the non-parole period, having regard to the need that the appellant has for treatment for his depression and alcohol problems.  I may not have fixed as long a non parole period as nine months, but that is not the test.  In the end, I am not persuaded nine months was manifestly excessive in all the circumstances, including the nature of the offence and the circumstances of the offender.  For those reasons, the appeal will be dismissed.  There will be no order as to costs.