Jeffries v Police No. Scgrg-00-186

[2000] SASC 110

JEFFRIES  v  POLICE
[2000] SASC 110

Magistrates Appeal: Criminal

1      BLEBY J (Ex tempore)     The appellant was charged on information with assault occasioning actual bodily harm to a person above the age of 12 years, contrary to s 40 of the Criminal Law Consolidation Act 1935. The maximum penalty for that offence is five years’ imprisonment.

2      On 22 February 2000 the appellant pleaded guilty.  He was convicted and sentenced by a magistrate to six weeks’ imprisonment.  The sentence was not suspended.  He was released on bail the following day pending the hearing of this appeal. 

3      The assault occurred at the Benagarie mining exploration camp near Cockburn on 27 November 1998.  The appellant, the victim and others in the exploration crew, at the end of a successful project, were drinking in a shed at the camp.   During the course of that session there was a verbal altercation between the appellant and the victim, but nothing more. 

4      It seems that the victim went to his bedroom, and that some time later the appellant also went to the victim’s bedroom.  Both were affected by the alcohol they had consumed.  The previous argument resumed.  It developed into a physical struggle, largely in the victim’s bedroom. 

5      During the early course of the physical contact, it seems that the victim struck the appellant’s jaw, causing him pain because of the recent extraction of the appellant’s wisdom teeth.  The appellant began punching the victim.  He inflicted a number of blows to the upper body and face, the victim ending up on the floor of the bedroom.   The appellant was restrained by another employee. 

6      The victim required hospitalisation at Broken Hill for a period of three days.  The injuries he sustained were a ragged small laceration of the right eyebrow region with right eye periorbital bruising.  A doctor was unable to visualise the right eye effectively due to eyelid swelling, but the victim was apparently able to see fingers between his partly opened eyelids.  He also suffered left eyelid swelling, but was able to visualise objects through his left eye.  He suffered bruising of the left cheek region and tenderness to the temporomandibular joints, with painful but full occlusion of the teeth.  He suffered bruising and swelling of the cheek and right ear region and tenderness to the right occipital region.  He also suffered mild tenderness over the mid‑cervical spine region, with full range of neck movements, and bruising of the right anterior shoulder with painful abduction and external rotation.   They were serious injuries, but there was no order for compensation of the victim by the appellant sought in the proceedings the subject of this appeal. 

7      I turn to the personal circumstances of the appellant.   He resided at Broken Hill and had lived in the same de facto relationship for some ten years.  He supported, at least to some extent, his partner and her three teenage children.  There was no history of any offences against the person or offences of violence.  Indeed, there was no prior record of any offending at all. 

8      As a result of the incident, the appellant was instantly dismissed from what appears to have been a position of considerable responsibility, in that he was manager of the camp.  He was unemployed for some months, apart from some intermittent casual work.  He then obtained a loan and began a landscaping and earthmoving business.   It was put to the magistrate that imprisonment would have a disastrous effect on that business and his financial liability.  I have no reason to doubt that. 

9      The sentencing magistrate correctly described the offence as “a very serious assault” with the appellant seeking out his victim after the victim had gone to his bedroom.  She referred to the victim’s injuries in general terms, and to the fact that he had no previous court history in relation to assaults.  She described that as the only thing that could be said for him in relation to the victim’s injuries.  She referred to the fact that he had been dismissed and had borrowed money to start his earthmoving business, and that he helped care for the three children of his partner’s earlier marriage. 

10     The magistrate considered that, having regard to what she called the primary sentencing purposes, namely deterrence, protection of the community, retribution and rehabilitation, this was a matter where the assault was so serious that she considered that an immediate prison sentence was called for.  She said that normally she would be looking at a sentence of six months’ imprisonment, but because of the appellant’s previous good character, she would impose a sentence of six weeks.  As I indicated before, she declined to suspend the sentence. 

11     The magistrate said nothing about the appellant’s plea of guilty, although I note that it appears to have been a late plea. 

12 The appellant, in his grounds of appeal, complains that the sentence was manifestly excessive and that there should not have been a sentence of imprisonment imposed at all. That latter ground was, I think properly, abandoned at the hearing. Other grounds include that the sentence should have been suspended, that the magistrate erred in imposing a significantly shorter period than she would normally have done, rather than imposing a proper sentence and considering suspension, and that she failed to take into account relevant matters required by s 10 and s 11 of the Criminal Law (Sentencing) Act 1988.

13     By her reference to the nature of the offence warranting six months’ imprisonment and the reduction of the custodial sentence being warranted only by the appellant’s good record, the magistrate clearly considered that the nature of the offence warranted a custodial penalty.  In Yardley v Betts (1979) 22 SASR 108 it was held that there was no presumption of imprisonment as a penalty for an offence of this nature. As, indeed, King CJ pointed out at 112, protection of the community is also contributed to by the successful rehabilitation of offenders, a fact that should not be lost sight of. That assumes particular importance in the case of first offenders and others who have not developed settled criminal habits.

14     He continued at 112:

“If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired.  If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced. 

To say that the criminal law exists for protection of the community is not to say that severity is to be regarded as the sentencing norm.  Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes.  But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the tribunals of civilised nations.  They are summed up, in aspects relevant to the present discussion, by Napier CJ in Webb v O’Sullivan [1952] SASR 65 at 66:

‘The courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be.  Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy.   We ought not to award the maximum which the offence will warrant but rather the minimum which is consistent with a due regard for the public interest.’

The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so.”

An assault resulting in a serious injury must be viewed against the circumstances in which it took place, such as the extent to which there was provocation, whether one person was in a position of physical power or dominance over another, whether the victim was a law enforcement officer or a child and a great many other factors. I must also look at the likely effect of imprisonment on the offender, whether that may, in fact, increase his propensity to crime and what other effects that will have on his life. There is no hard and fast rule that can be laid down. However, the approach to sentencing, especially in an area where there is a wide range of possible penalties, is, to some extent, dictated by s 11 of the Criminal Law (Sentencing) Act.  That section reads:

“11 (1)...... A sentence of imprisonment must not be imposed for an offence unless, in the opinion of the court -

(a).... the defendant has shown a tendency to violence towards other persons;

(b)the defendant is likely to commit a serious offence if allowed to go at large;

(c).... the defendant has previously been convicted of an offence punishable by imprisonment; or

(d) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.”

Section 11(2) is not relevant for present purposes.

15     It is not immediately apparent that the sentencing magistrate directed her attention to that section.  So far as paragraph (a) is concerned, a tendency to violence is not shown by one isolated incident where both participants were under the influence of alcohol.  So far as paragraph (b) is concerned, there is nothing to suggest in this case that the appellant is likely to commit a serious offence if he is allowed to go at large.  So far as paragraph (c) is concerned, he has not previously been convicted of an offence punishable by imprisonment.  That leaves paragraph (d) namely that “any other sentence would be inappropriate having regard to the gravity or circumstances of the offence”.

16     The magistrate, in my opinion, was plainly correct in saying that this was a very serious assault.  Alcohol may have been an explanation.  It was not an excuse.  Any ill-feeling as a result of the earlier argument could have been avoided by the appellant not going to the victim’s bedroom.  Whatever provocation there may have been by the aggravation of pain to his jaw did not warrant the severe attack that he then launched on the victim. 

17     In my opinion, the gravity of the offence did warrant a sentence of imprisonment.  It warranted a higher sentence than the magistrate in fact imposed, in order to register the court’s and the community’s disapproval of that sort of conduct.  The appellant should consider himself extremely fortunate that he only received a sentence of six weeks.   What the magistrate has done, however, is to discount the period of the sentence to reflect important aspects of the appellant’s personal circumstances.  That is appropriate in some circumstances, especially where an immediate custodial sentence is clearly called for. 

18     Those personal circumstances were all circumstances which were important, but, in my opinion, there was a serious alternative to reducing the length of the sentence, and that was to impose a proper sentence and to allow it to be suspended.  There was no presumption that an immediate custodial sentence should necessarily or usually be imposed.  The particular circumstances of this offender indicated that suspension was a practical and perhaps even a desirable outcome. 

19     The sort of considerations mentioned by King CJ in Yardley v Betts were important in this case.  To the extent that the magistrate may have considered that the only thing in the appellant’s favour was his past good record, there was an error.  There were quite obviously other factors in his favour in considering the sentence and whether it should be suspended.  He was to be sentenced as a first offender.  It is unlikely, I think, that the appellant will re‑offend.  He has learned a significant lesson by the loss of his job over the offence.  He was plainly an industrious man and was aware of his responsibilities to his community and to his immediate dependants.  In my opinion nothing would be achieved by way of personal deterrence by an immediate custodial sentence.  Indeed, by exposing him to the prison system in this case, one might even be enhancing the chances of recidivism. 

20     The loss of the appellant's job I do not consider to be a mitigating circumstance reflecting directly a need for reduction in penalty.  What it does do is to help the appellant to realise the significance of his offending and the lesson that can be learned from such uncontrolled outbursts.  That can only enhance his insight into his offending, thereby encouraging reform, and becoming an important factor in favour of suspension of the sentence.  Likewise, the fact that he has commenced his own business should not stand in the way of a sentence of imprisonment that should otherwise properly be served, but it does indicate, coupled with his previous record, that the prospects of his re‑offending are lessened.  By engaging in his own business, he has a strong additional motivation to observe the terms of any bond that might be imposed as a condition of the suspension of any sentence of imprisonment. 

21     The potential harm and disruption to his family and their support is of some, though not compelling, significance. 

22     I do not regard as significant, in determining that the sentence should be suspended, the circumstances of the offence, the supposed provocation, the alcohol consumption or the appellant’s plea of guilty.  Those are material to the length of sentence that should be imposed.  The appellant should be under no misapprehension about the fact that he is and should properly have been sentenced to imprisonment, and that that sentence will continue, and that he will have to serve that sentence if he misbehaves during the period of any bond that I might see fit to impose. 

23     As I said, the actual sentence is extremely low.  I think the magistrate erred in fixing it at that level.  It is now beyond my power to increase it.  However, that does not mean that the suspension should not be imposed if, as I consider it to be, it is a proper case for suspension of the sentence.  The appeal will be allowed. 

24     The order that I make is that the sentence imposed by the magistrate be suspended upon the appellant entering into a bond in the sum of $800 to be of good behaviour for a period of three years.