H, T v Police - [2005] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
H, T v POLICE
Judgment of The Honourable Justice Sulan
14 April 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
The appellant pleaded guilty to assaulting her three year old son, contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA) – the appellant was assessed for eligibility to participate in the Magistrates Court Diversion Program – the appellant was not eligible for participation as provided in the guidelines for acceptance, due to the nature of the offending – whether a magistrate is bound by administrative guidelines when making a decision as to whether a person is eligible for the Magistrates Court Diversion Program – whether the magistrate failed to exercise his discretion in refusing to admit the appellant into the program - whether the magistrate failed to consider penalties other than a custodial sentence – appeal allowed and sentence set aside.
Criminal Law Consolidation Act 1935 (SA) s 39(1); Criminal Law (Sentencing) Act 1988 (SA) s 11, referred to.
R v McMillan (2002) 81 SASR 540; The Queen v Weaver (1973) 6 SASR 265; Vartzokas v Zanker (1988-89) 51 SASR 277, considered.

H, T v POLICE
[2005] SASC 143
Magistrates Appeal

SULAN J: This is an appeal against a sentence imposed in the Magistrates Court on 25 November 2004. The appellant pleaded guilty to assaulting her son, contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA). On 12 April 2004, I allowed the appeal and I now publish my reasons.
Introduction
The appeal deals with the eligibility criteria for the Magistrates Court Diversion Program (“the Diversion Program”). It raises the question as to whether a magistrate is bound by administrative guidelines when making a decision about a defendant’s eligibility for the Diversion Program. It also raises the question of whether the magistrate failed to consider penalties other than a custodial penalty.
Background to the appeal
The victim is the three-year-old son of the appellant. On 7 April 2004 the appellant was residing with her son at Hackham West. Whilst the appellant was outside, her son was alone inside the premises. He soiled himself and spread faeces over the toilet and bathroom walls. When the appellant discovered what her son had done, she lost her temper and hit him several times about the head and body. About one hour later, she noticed bruising. The appellant was very upset and remorseful. She took the child to her parents’ house the following day. The appellant’s parents took the child to the Flinders Medical Centre on 10 April 2004. An examination revealed that the child had sustained extensive bruising to his right cheek, temple, right ear, right upper arm, right thigh, lower back, right upper shoulder…

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 H, T v Police

Details

AGLC: H, T v Police [2005] SASC 143
Case: [2005] SASC 143
Decision Date: 14 April 2005

CaseChat Overview and Summary

The appellant appealed against her conviction, arguing that the magistrate erred in deciding that she was ineligible for the Magistrates Court Diversion Program. The court was required to determine whether the magistrate was bound by administrative guidelines when assessing eligibility for the Diversion Program and whether the magistrate failed to exercise their discretion in refusing to admit the appellant into the program. The court also needed to determine whether the magistrate failed to consider penalties other than a custodial sentence. The appeal was allowed, and the sentence was set aside.

The court found that the magistrate was not bound by administrative guidelines when making a decision about the appellant's eligibility for the Diversion Program. The court held that the magistrate had the discretion to consider the individual circumstances of the case and decide whether participation in the Diversion Program was appropriate. The court also found that the magistrate had failed to exercise their discretion in refusing to admit the appellant into the program. The court held that the magistrate had not considered the appellant's genuine contrition and the steps she had taken to ensure that there would not be a repetition of her conduct. The court further held that the magistrate had failed to consider penalties other than a custodial sentence.

The court concluded that the magistrate's decision to refuse to admit the appellant into the Diversion Program was flawed, and the sentence was set aside. The court held that the appellant should have been given the opportunity to participate in the Diversion Program, which could have provided her with the support services necessary to address the underlying issues that led to the offending. The court also held that the magistrate had failed to consider alternative penalties, such as a community service order, which could have been appropriate in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

The appeal deals with the eligibility criteria for the Magistrates Court Diversion Program (“the Diversion Program”). It raises the question as to whether a magistrate is bound by administrative guidelines when making a decision about a defendant’s eligibility for the Diversion Program. It also raises the question of whether the magistrate failed to consider penalties other than a custodial penalty.Background to the appeal The victim is the three-year-old son of the appellant. On 7 April 2004 the appellant was residing with her son at Hackham West. Whilst the appellant was outside, her son was alone inside the premises. He soiled himself and spread faeces over the toilet and bathroom walls. When the appellant discovered what her son had done, she lost her temper and hit him several times about the head and body. About one hour later, she noticed bruising. The appellant was very upset and remorseful. She took the child to her parents’ house the following day. The appellant’s parents took the child to the Flinders Medical Centre on 10 April 2004. An examination revealed that the child had sustained extensive bruising to his right cheek, temple, right ear, right upper arm, right thigh, lower back, right upper shoulder and left thigh. On 25 April 2004, the appellant was interviewed by police and admitted assaulting her son. The appellant had sought counselling in relation to her behaviour. It was not disputed that she had taken a number of steps towards ensuring that there would not be repetition of her conduct. She had demonstrated genuine contrition. After a plea of guilty to the charge was intimated, the appellant made an application to be assessed for eligibility to participate in the Diversion Program. The application was made on the basis that the offending was related to a lack of support in the appellant’s life, which could be addressed with participation in the program. It was submitted that the intervention of the support services would be beneficial not only to the appellant, but also to her son. On 27 September 2004, the appellant was assessed by a clinical advisor. The clinical advisor concluded that she was not eligible for participation in the program, due to the nature of offending. Her report stated:With regard to mental health, Ms H reported that her circumstances had stabilised somewhat in recent months. From her reports, it would appear that she had initiated contact with various professional supports since the time of the current alleged offence. She reportedly received professional support from Noarlunga Health Services, and was evidently living in supported accommodation at Coolock House (Young Women’s and Children’s Support Services) where she evidently received assistance with parenting and life skills.However, the nature of Ms H’s current alleged offence deemed her inappropriate for the Diversion Program. Specifically, the victim of her alleged Common Assault On Member Of Own Family was evidently her 3-year-old son. At present, the Diversion Program does not accept clients charged with offences against children.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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