Hodgson v Police No. Scgrg-97-1447 Judgment No. S6470

[1997] SASC 6470

HODGSON  v  POLICE

Perry J  (ex tempore)

This is an appeal was against the sentence imposed upon the appellant in the Magistrates Court sitting at Elizabeth following his plea of guilty to a charge that on 1 March 1997 at Para Hills West he assaulted Denise Jeannette Wilson, contrary to s39(1) of the Criminal Law Consolidation Act 1935.

After hearing the submissions of the complainant and of counsel for the appellant, the learned sentencing magistrate imposed a custodial term of imprisonment of two months.  It is from that sentence that the appeal is brought.

There is only one ground of appeal, namely that the sentence was manifestly excessive.  In support of that ground in the notice of appeal the appellant complains that insufficient weight was given to the appellant's lack of prior convictions, or penalty of imprisonment, his contrition, the fact that the appellant is no longer drinking, is willing to attend counselling and further the fact that he had previously complied with a bond.

The appellant is single, aged 27 years. The learned sentencing magistrate was informed that on 1 February 1996 on another assault charge, the appellant was placed on a bond for six months without a conviction being recorded.

In his affidavit filed in this court, Mr Ranger the police prosecutor, who appeared in the court below, sets out the facts as given to the learned sentencing magistrate.  It appears that the latter was informed that the victim, a woman aged 33 years, had been drinking in company with the appellant since about 5.00 pm on the day in question.  The assault occurred at about 11.30 pm.  Just before the assault a verbal argument broke out and the appellant threw a glass at a wall. It was alleged that he then grabbed the victim by her waist and tipped her upside down, carrying her down the hallway and throwing her on a bed, swearing at her as he then left the room.

Although he returned shortly after to apologise, on walking out of the bedroom he grabbed her again and pushed her backwards into a linen closet in the hallway.  He then grabbed her head with both hands and head-butted her in the middle of the forehead, which caused a lump.  The appellant yelled at the victim, accusing her of shooting her mouth off and hurting his feelings.  He proceeded to punch her in the left eye and then on the right side of her face.  He then struck her to the back of the head and left the room.

The victim left the house and went to a neighbour.  She suffered bruising and swelling to her left eye, to the right side of her face and the lower lip and redness to her throat.

By the time a police patrol attended the appellant had left the scene.  He agreed, however, to an interview which occurred on 25 May 1997.  The learned Magistrate was told that on the interview the appellant was co-operative and appeared remorseful for his actions.  He confirmed the history of drinking which had occurred that day, and blamed that for affecting his judgment and his behaviour.  He asserted that the victim had herself become intoxicated and argumentative with him and some guests who were there earlier before the assault occurred.  He admitted the essential elements of the actual assault as I have already described them. He said that he was sorry and wanted to apologise.

A victim impact statement was put before the learned sentencing Magistrate which gave a little further detail as to the effect of the assault upon the victim.  Apart from the injuries to which I have already referred, she complains in the victim impact statement that she suffered tenderness to her forehead and to her jaw bones, and that she had been to a doctor who had prescribed Valium and Panadeine Forte.  She was referred for x-rays and also to a physician to examine her neck and back which was thought might have been injured.  She complained of emotional upset including anger and nervousness and that she had trouble sleeping.  She said that she was unable to trust men, she was unable to participate in social occasions, had occasional loss of memory and was unable to concentrate fully on everyday chores.  In the victim impact statement she complains also that she was worried as to the effect on her children and she thought that their sleeping habits had been effected.

In the victim impact statement she complained of damage to some dining room chairs and other fittings and items of furniture in the house.  But Mr Dibden, who appeared for the appellant on the hearing of the appeal, informed me that in the submissions which he made to the learned sentencing Magistrate responsibility for that damage was denied by the appellant.  It must therefore be excluded from consideration on the hearing of the appeal and was presumably excluded from consideration by the learned sentencing Magistrate.

I must say that the affidavit of the prosecutor to which I have referred was not responded to by any affidavit on behalf of the appellant.  As I pointed out to Mr Dibden, if it was thought necessary to put before this Court detail of the submissions made on behalf of the appellant to the sentencing Magistrate, an affidavit should be filed by the counsel or solicitor on behalf of the appellant setting out those matters.

In the events which happened, I accepted submissions from Mr Dibden orally during the course of the appeal as to what had been put to the learned Magistrate, at the same time pointing out that some of the matters to which he referred might be embarrassing to counsel for the respondent.  This is so, as she was denied the opportunity of obtaining instructions as to matters which might have been put in contention.

In the events which happened, however, it does not seem to me that anything was put by Mr Dibden in that way which could have had that effect, except perhaps as to a restraining order, which I will deal with in due course.  Furthermore, the submissions which were put by Mr Dibden in which he explained what had been put to the learned sentencing Magistrate, do not deflect me from the view which I have reached as the outcome of the appeal.

Returning to the course of events in the court below, the learned sentencing Magistrate made the following remarks during the course of sentencing the appellant:

“Offences of violence to the person are both prevalent and abhorrent and all the more so when committed by a male on a female and where some injury is caused.  You are perhaps fortunate that you are not charged with assault occasioning actual bodily harm.  It was not a case of one blow but a number of blows struck by you and injuries caused to the person.  You have a previous offence of assault only the year before and you have not learnt by the leniency that was extended to you.  I regard immediate imprisonment as the only appropriate penalty.  I do not consider it appropriate to suspend that term.”

After indicating that he had reduced the sentence of imprisonment by approximately one third by reason of the plea of guilty, the learned sentencing Magistrate then went on to impose the sentence now under review.

In his submissions to this Court Mr Dibden emphasised a number of features of the case.

He submitted that in so far as the learned sentencing Magistrate appears to have been influenced by the previous assault charge, that that was a relatively minor matter involving what he described as a “neighbourhood scuffle” and had not resulted in any injury to any other person.  The fact remains, however, that it was an indication of the predisposition to violence by the appellant, even although it was, on the face of it, not a serious incident.

He went on to point out that in the period intervening between the commission of the assault now in question and the appearance before the court by the appellant on the occasion upon which he was sentenced, the appellant was bound over by a restraining order obtained on the application of the victim.  I do not see how that assists the appellant.  Restraining orders are prospective in operation.  The fact that a court was satisfied that it was a proper case in which to make such an order indicates that it must have been satisfied that there were reasonable grounds on the part of the victim to apprehend further instances of violence at the hands of the appellant.

Mr Dibden also submitted that there was unlikely to be any repetition of violence, partly in view of the restraining order.  That no doubt was a matter to be taken into account in considering the penalty now under review.  Apparently his client had offered, through him, in making submissions to the learned sentencing Magistrate, to undertake an anger management course, as it is euphemistically called, and another course described as an alcohol abuse management course.

It was put on the appellant’s behalf that an appropriate penalty would be the imposition of a community service order or a further bond with supervision.

Mr Dibden complained, in advancing the appeal, that the learned sentencing Magistrate's remarks were brief to say the least, and he did not expressly refer to those and some others of the matters which were put to him.

One of the matters which he says was not referred to by the learned sentencing Magistrate was the appellant's contrition, manifest on the occasion upon which was interviewed and the fact that he was distressed to the point of crying on the same occasion when, as I have indicated, he made an apology for his conduct.

It must be realised, however, that the learned sentencing Magistrate gave extempore reasons, and it was not incumbent upon him to refer to every point which had been made in the course of the presentation of the matter before him.  He was an experienced Magistrate and it is not to be supposed that matters which he did not expressly refer to were overlooked.  There is no reason, for example, to think that he was not well aware of the fact that the imposition of a custodial term of imprisonment is a sentence of last resort.  Furthermore, the question whether any sentence should have been suspended or some other lesser sentence imposed was entirely a matter for the learned sentencing Magistrate.  Despite his criticism of the failure by the learned sentencing Magistrate to refer to all of the matters which he had put to him, Mr Dibden was unable to point to anything in the sentencing remarks which was patently indicative of appealable error.

It was, as Mr Dibden put it, one of those cases where, in his submission, the fact that the sentence imposed was manifestly excessive was obvious from a consideration of that sentence against the circumstances of the case as I have outlined them.  In that regard he referred to the remarks of Olsson J in Ienco v Kraft and Modra.[1]

[1] (1990) 53 SASR 40 at 42.

It cannot be denied that there are cases where, absent patent error in the remarks on penalty made by the sentencing court, the penalty imposed should nonetheless be regarded as so manifestly disproportionate to the offence as to warrant interference on appeal.

In this case the maximum term of imprisonment, this being treated as a non-domestic assault, was two years imprisonment.

What must be borne in mind is that the discretion of Magistrates sitting in a particular area is not to be interfered with lightly by an appeal court, given the local knowledge which must be attributed to Magistrates.  Violent assaults are regrettably common between people with some sort of relationship between them.  A short term of imprisonment may sometimes be regarded as necessary to bring home to an offender the seriousness of assaults of this kind, and also to act by way of general deterrence.  As to the latter aspect of the matter, just what is necessary in a particular location, at a particular time, to send an appropriate signal to the community, is entirely a matter for the sentencing Magistrate.

Mr Dibden has said everything which could possibly be said in support of the appeal.  However, at the end of the day I am not satisfied that in imposing the sentence which he did the learned sentencing Magistrate erred.  It is not sufficient to observe that another court might have dealt with the matter in another way.  In order to justify interference by this Court, the penalty must appear to be manifestly excessive.  I am quite unable to perceive this to be so in this case.

The appeal is dismissed.

There is no order as to the costs of the appeal.

I note that the appellant must surrender himself to the registrar at the Elizabeth Magistrates Court within 14 days of today, in accordance with the obligation to do so imposed by the bail agreement and so as to allow the sentence to be carried out.