Harrison v The Queen - [2022] SASCA 35

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HARRISON v THE QUEEN
[2022] SASCA 35
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
11 April 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
The applicant pleaded guilty to one count of causing harm with intent to cause harm, contrary to s 24 of the Criminal Law Consolidation Act 1935 (SA). On 21 February 2022, the applicant was sentenced to two years’ imprisonment, reduced to one year and 10 months’ imprisonment taking into account the applicant’s guilty plea and time served in custody and on home detention. A non-parole period of 11 months and one week was fixed.
The offending occurred behind play during an amateur football league grand final. The victim sustained serious injuries.
By Notice of Appeal dated 26 February 2022, the applicant sought to appeal against his sentence on the grounds that the sentence was manifestly excessive and the sentencing Judge erred by not imposing a home detention order.
Held (by Livesey P and David JA):
1.The offending was not mitigated by the context in which it occurred; violent behaviour such as this on or off the sporting field is not tolerated by the community and it called for a strong response from the sentencing court.
2.It is not reasonably arguable that the sentencing Judge made any error in the exercise of the sentencing discretion. The sentence imposed was well within the range of acceptable outcomes.

3. Permission to appeal is refused.
Criminal Law Consolidation Act 1935 (SA) s 24, referred to.
Baird v Police SASC, unreported, Judgment S6325, 11 August 1997, BC 9704130; Birch v Fitzgerald (1975) 11 SASR 114; Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; Liddicoat v The Queen [2021] SASCA 18; McKenzie v Police [2015] SASC 78; Ndreka v The Queen [2021] SASCA 11; R v Jensen [1994] SASC 4452; Temby v Police [2015] SASC 198, considered.

HARRISON v THE QUEEN
[2022] SASCA 35
Court of Appeal – Criminal: Livesey P and David JA
THE COURT:

The applicant seeks permission to appeal against sentence.
On the first day of his trial, the applicant pleaded guilty to one count of causing harm with intent to cause harm, contrary to s 24 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty is 10 years’ imprisonment.
During the Southern Football League B-Grade amateur grand final between Flagstaff Hill Football Club and Christies Beach Football Club there was an incident involving Nicholas Bailey (Bailey), a leading goal kicker with Flagstaff Hill. There was then a scuffle. As the scuffle dispersed, the applicant approached Bailey from behind and threw a closed fist, left hook to his face, felling him. The applicant was given a red card and escorted from the ground.
As Bailey’s father passed the applicant, he asked the applicant if he was “proud of yourself” to which the applicant replied, “come here and I’ll do you too”.
The sentencing Judge sentenced the applicant to imprisonment for two years. After a 5 per cent reduction for the late guilty plea, the sentence became one year, 10 months and 24 days’ imprisonment. A non-parole period of 12 months was fixed. A reduction was made for time spent in custody as well as on home detention, resulting in a reduction of 24 days. The sentence became one year and 10 months’ imprisonment and a non-parole period of 11 months and one week was fixed.
The applicant has been banned from playing football.
Bailey sustained lacerations to his mouth and displaced teeth, together with two fractures to his lower jaw requiring surgery to insert plates and screws. He spent four nights in hospital and had titanium plates inserted into his lower jaw. These will stay permanently. Bailey required extensive rehabilitation. He was unable to work for six weeks and will require ongoing dental work.
Although he has returned to playing football, Bailey is impeded and remains angry at being hit from behind without any opportunity to protect himself.
The sentencing Judge rightly described the applicant’s assault as cowardly and completely unacceptable, although not entirely unprovoked or without reason. The sentencing Judge also, with respect correctly, described senseless violence behind play as something which is no longer tolerated in any sporting code. The community expects that players can enjoy sports such as football without the risk of serious injuries. Moreover, senior footballers set an example of acceptable culture and on-field behaviour for the young. As the sentencing Judge explained, thuggish and impulsive outbursts of violence must be deterred.
The applicant’s criminal record reveals a number of assaults, albeit many years before the subject offending. There was an assault in November 2006 when the applicant was 19 years which was addressed by a fine. In February 2006, there was an assault causing harm when the applicant was 18 years, for which he was sentenced to a suspended term of five months’ imprisonment. This occurred when the applicant was in a fight and affected by alcohol. The applicant’s conduct was described as “cowardly and disgraceful”.
In September 2009, there was an aggravated offence of causing harm with intent to cause harm when the applicant was 22 years. This was again an offence involving alcohol at a hotel. The offence was committed in breach of a suspended sentence. The sentencing Judge revoked the suspended sentence and imposed a total sentence, which included other offending, of two years and eight months with a “merciful” non-parole period of 12 months. The applicant served eight months of the 12-month non-parole period, with the balance served under home detention until release on parole.
It appears to be accepted that the applicant then took stock of his life and generally stayed out of trouble.
At the time of sentence, the applicant was 34 years of age. He had had a difficult childhood as a result of his father’s abuse and violence towards his mother. Nonetheless, the applicant had always been in steady employment and, at the time of sentence, was supported by his employer. He was also involved in a local cricket club as vice-president and captain of the senior team. The applicant’s leadership had helped to expand the club and create a family friendly environment.
The applicant has two children. He has a boy aged eight. He has a shared parenting arrangement with the boy’s mother. He has another child aged 10 months with his present partner of five years. The applicant hopes to purchase the property which he and his partner are renting. The applicant and his partner also have a business involving a tipper truck.
Whilst the sentencing Judge accepted that the applicant no longer had a problem with alcohol, and that his risk of recidivism is low, he was not prepared to overlook the seriousness of the assault particularly in the context of the applicant’s previous convictions for assault, albeit dated.
The sentencing Judge accepted that the applicant did not intend to cause Bailey the extent of the harm he in fact suffered. Nonetheless, he regarded both general and personal deterrence as important sentencing considerations.
The sentencing Judge was not prepared to suspend the sentence nor order that it be served on home detention.
It is these last two matters which form the focus of the present application. It is submitted that it was both unreasonable and plainly unjust to order that the sentence be served immediately, and that the failure to suspend or order that the sentence be served on home detention represented an outcome error and resulted in a sentence which was manifestly excessive. Particular emphasis was given to home detention. Reliance was placed on well-known authorities concerning manifest excess.[1] Whether the matter was described as an outcome error or a specific error, it was submitted that the same principles are relevant.[2] Indeed, it was suggested that the emphasis given to personal and general deterrence was “overstated” given the applicant’s personal circumstances and his excellent rehabilitation prospects.
[1] Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; Ndreka v The Queen [2021] SASCA 11, [28] (Doyle JA, with whom Kelly P and Lovell JA agreed).
[2] Liddicoat v The Queen [2021] SASCA 18, [24] (Bleby JA, with whom Kelly P and Lovell JA agreed).
In our view, violent behaviour such as this called for a strong response from the sentencing court.[3] This kind of thuggery, on or off the sporting field, will not be tolerated by the community.[4] The offending was not mitigated by the context in which it occurred. The blow was struck behind the play and cannot be characterised as a commonplace infringement of the rules of play.[5]
[3]     Birch v Fitzgerald (1975) 11 SASR 114, 117 (Bray CJ).
[4]     See, eg, Australian Football League, “The Management of Sport-Related Concussion in Australian Football” (April 2021), especially Chapters 1, 2.1-2.3, available at: Management of sport related concussion in Australian Football 25 April 2021 (afl.com.au). See, eg, Schreiber, Williams and Ranson, “Kings to Cowards: One-Punch Assaults” Journal of Law, Medicine and Ethics 44 (2016) 332; in the context of unprovoked violent assaults at licenced premises: Temby v Police [2015] SASC 198, [13] (Vanstone J); see also the discussion of the risk associated with one-punch attacks that lead to homicide, for example, K Fitz-Gibbon, (2018) “Legal responses to one-punch homicide in Victoria: understanding the impact of law reform” Monash University.
[5]     R v Jensen [1994] SASC 4452, [6] (King CJ, Mullighan J agreeing); Baird v Police SASC, unreported, Judgment S6325, 11 August 1997, BC 9704130 (King AJ), cited in McKenzie v Police [2015] SASC 78, [39] (Nicholson J).
Whilst we accept that some judges may have exercised their discretion differently, we do not regard it as reasonably arguable that the Judge has made any error in the exercise of his discretion in this case. The sentence which was imposed was well within the range of acceptable outcomes.
Permission to appeal is refused.