GOODS v POLICE - [2018] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GOODS v POLICE
[2018] SASC 138
Judgment of The Honourable Justice Kelly
20 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Appeal against sentence.
The appellant pleaded guilty to assault, damaging property and arson. The learned Magistrate sentenced the appellant for the assault charge on the basis that prior to punching the victim he had held a screwdriver and threatened to stab him with it unless the victim consented to being punched. The appellant denied that he had ever held a screwdriver or threatened to stab the victim. The learned Magistrate refused counsel for the appellant’s request for a disputed facts hearing to determine the factual basis of the charge.
Held per Kelly J allowing the appeal:
1. The events which led up to the punch were relevant and material matters to take into account when assessing the gravity of the assault.
2. The appellant ought to have been given an opportunity to deny the allegations concerning the lead up to the assault in the form of a disputed facts hearing.
3. The appeal is allowed, the sentence set aside and the matter is remitted to the Magistrates Court for submissions and sentencing before a new Magistrate.

GOODS v POLICE
[2018] SASC 138
Magistrates Appeal: Criminal
KELLY J:

The appellant appeals a sentence imposed in the Adelaide Magistrates Court on 21 June 2018.
The appellant had entered guilty pleas to one count of assault, one count of damaging property and one count of arson. By committing those offences he admitted to breaching a good behaviour bond entered into on 21 November 2016 for an offence of carrying an offensive weapon. He also admitted breaching a community service order by failing to complete community service.
The Magistrate imposed a single sentence for the offences of assault, damaging property and arson of one year and six months. This sentence was made cumulative on the sentences her Honour imposed for carrying an offensive weapon and the breach of the community service order. Her Honour made further reduction for time spent in custody and on home detention bail. The total head sentence imposed was a term of one year and six months and a non-parole period of nine months. The Magistrate indicated notional sentences for each of the individual offences as follows:
·the breach of the community service order - 30 days imprisonment;
·carrying an offensive weapon - two weeks imprisonment;
·assault - three months and eight days imprisonment reduced from five months and two weeks;
·damaging property - five months imprisonment reduced from seven months;
·arson - one year, two months and two weeks reduced from two years.
The sentence was backdated to 24 May 2018 being the date the appellant was taken into custody.
The Magistrate declined to suspend the sentence. Her Honour also found that the appellant was not a suitable candidate for home detention and that home detention was not appropriate in all of the circumstances.
The appellant now appeals on two grounds. First, that the Magistrate erred by sentencing on the basis that the appellant held a screwdriver before assaulting the victim and that the appellant had threatened to stab the victim unless he allowed the appellant to punch him. Second, that the notional starting point of seven months imprisonment for the offence of damaging property was manifestly excessive.
Background
Before discussing the first ground it is necessary to set out some of the relevant background. The appellant was originally charged on information with one count of aggravated assault, one count of aggravated threatening harm, two counts of damaging property and one count of arson.[1]
[1] The appellant was also charged on the information dated 13 June 2017 with another three offences, however the court record indicates that these charges were withdrawn on 16 June 2017 and replaced on a separate file.
The allegations which gave rise to the charges were that the victim of both the assault and one of the damaged property counts had been photographed kissing the girlfriend of the appellant. Some time later the appellant and the victim were in a car together when the appellant was alleged to have held a screwdriver and threatened him that he would stab him unless he consented to being punched. They then got out of the car and the appellant punched the victim once with a clenched fist.
Later that night, the victim received a call from the appellant threatening to damage his property. The next day he woke to find his Holden motor vehicle had been extensively damaged to the front and rear windows. On 9 June 2017 the victim’s mother awoke to find that her motor vehicle had been set alight.
After negotiations the prosecution accepted pleas of guilty to one count of basic assault, one count of damage property and one count of arson in satisfaction of the information. The balance of the charges were withdrawn.
There appears to have been a misunderstanding between the prosecutor and counsel then acting for the appellant as to the factual basis regarding the charge of basic assault. Counsel then acting for the appellant maintained throughout that the appellant denied holding a screwdriver at all during the incident and denied making a threat to the victim to stab him with it. On the other hand, the prosecution at no stage indicated to counsel then acting for the appellant that the facts of the early altercation with a screwdriver and the conditional threat would be abandoned as part of the factual basis to be put before the Court.
Sentencing submissions were made before the Magistrate on 24 May 2018. Through his counsel, the appellant did not admit that he possessed a screwdriver during the offence nor that he made any threat to stab the victim with the screwdriver if he did not accept a punch. To the contrary, counsel for the appellant asserted that those allegations were denied. The appellant’s version put through his counsel was that the appellant said words to the effect, “I don’t want to deal with this now, you can either cop a punch now or we’ll deal with it later” before punching him.
Her Honour plainly understood the dispute as during the course of submissions on 24 May she stated:
… if the factual basis remains the same it can be argued that this is a serious example of an assault because it was accompanied by behaviour involving a screwdriver and a threat.
The prosecutor then submitted that the facts of the screwdriver and the conditional threat were led as background leading to the assault and to explain “why the victim agreed to the punch”. The prosecutor also submitted that the prosecution was not asking the Court to take these circumstances into account as an aggravating feature of the assault.
Her Honour then said:
Alright, does that satisfy? That it’s not being pressed as an aggravating feature but to explain the circumstances in which the assault, that is the punch, took place?
The following exchange also took place in the course of submissions:
HER HONOUR:
… In the scheme of things, really the other charges are more serious, especially bearing in mind the maximum penalties.
MR EY:
Yes.
MS KINUTHIA:
That’s right.
HER HONOUR:
So I wouldn’t necessarily quibble too much about that. I think ultimately it won’t make very much impact on the outcome.
MR EY:
I’m grateful for your Honour’s intimation and I will take some instructions.
HER HONOUR:
Your client might be reassured to some extent by that.
At the conclusion of the hearing on 24 May the Magistrate left it on the basis that:
I’ll give you a date to come back, if there is any further written submission that you wish to make in relation to how I regard the lead-up to the punch I’m happy to receive it between now and the date that we fix.
Counsel then acting for the appellant indicated he would take some instructions and address that. Her Honour then concluded:
Otherwise I will just simply treat it as background material to explain how the punch came to be inflicted.
Unfortunately, counsel then acting for the appellant did not communicate in writing or any other way with the Court. When the matter next came on for sentence on 21 June 2018 Mr Graham who by then was acting for the appellant appeared. Mr Graham applied for an adjournment and requested that there be a disputed facts hearing before the Magistrate as the appellant continued to deny ever carrying a screwdriver or making a threat prior to punching the victim.
Following this there was some further discussion between counsel and the Magistrate. The prosecutor again reiterated that the allegation in relation to the screwdriver was put not by way of an “aggravating feature” but merely to put the offending in context. The prosecutor explained that it would not otherwise make sense why the victim would have accepted a punch except in response to a threat in relation to the screwdriver. The prosecutor opposed the application for an adjournment. In the circumstances her Honour accepted the basis on which the prosecutor put forward the relevance of the screwdriver incident.
Counsel for the appellant said:
Can I say this; when sentencing for punching someone once, the context makes a great deal of difference and when punching someone once compared to punching someone essentially because they’ve been blackmailed to receive the punch because of the threat with a screwdriver, the second one’s far more serious.
Counsel for the appellant maintained his request that there be a disputed facts hearing in relation to that circumstance. After some further argument, the Magistrate proceeded to sentence the appellant.
Regrettably, in my view, the matter went off the rails when the Magistrate refused the application to have a disputed facts hearing in relation to the circumstances leading up to the assault.
That request was denied and the Magistrate proceeded to sentence the appellant. In the sentencing remarks her Honour stated:
The prosecution maintain that you told Mr Atherton that you would either stab him or give him a punch and in fear he agreed to the punch. You both then got out of the car and then you punched him once to the face with a clenched fist. This act of punching him is the assault to which you have pleaded. I understand that you maintain your dispute about the circumstances which led to the punch. I sentence on the basis that you did hold a screwdriver previous to the punch and that there was a discussion in which Mr Atherton was required to make a choice. The explanation is only relevant to make sense of why he agreed to be punched by you when you both got out of the car. It does not serve to aggravate the nature of the assault. I pause to emphasise that with respect to the charge of assault you will be sentenced on the basis that you committed a basic assault. It is one constituted by a punch only.
Although the Magistrate made it clear in her Honour’s sentencing remarks that the appellant was to be sentenced only on the basis of a basic assault constituted by one punch, the plain fact is that the context in which that assault occurred was a very important matter. Plainly, it was important, otherwise the Magistrate would not have referred to it. Therein lies the dilemma. In my view, the allegation concerning the events which led up to the punch were relevant and material matters to take into account when assessing the gravity of the assault. In fact the allegation is so inextricably bound up with the assault that it is difficult to understand on what sensible basis the allegation could have been excluded.
The appellant is entitled to be aggrieved that he was not given an opportunity to deny that allegation. Notwithstanding the fact that the Magistrate expressly disavowed reliance on the circumstances leading up to the assault as an aggravating feature, it is difficult to understand how it could not have affected any assessment of the seriousness of the assault.
For these reasons, regrettably, I consider the matter went off the rails at the point when the Magistrate declined counsel for the appellant’s request that there be a disputed facts hearing.
In all of these circumstances, I am not able to say that the error has not affected the overall sentence imposed in relation to the offences to which the appellant has pleaded guilty.
In the circumstances it is not necessary to decide the second ground of appeal that the starting point for the offence of damaging property of seven months is manifestly excessive.
The appeal must be allowed, the sentence imposed by the Magistrate is set aside and the matter is remitted to the Magistrates Court for submissions and sentencing before a different Magistrate.