JOHNSTONE v Police - [2008] SASC 357

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHNSTONE v POLICE
[2008] SASC 357
Judgment of The Honourable Justice Nyland
17 December 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Appeal against sentence - charge of aggravated assault – appellant is parent of victim – breach of earlier bond and breach of bail – time served taken into account by imposing no further penalty with respect to those charges – bond not estreated – whether sentence for assaulting child manifestly excessive – isolated act to discipline child with no intent to cause harm – error by Magistrate as to factual basis of sentence.
Held: Appeal allowed – sentence reduced to three months imprisonment suspended upon appellant entering into bond in same terms as those fixed by Magistrate.
Criminal Law Consolidation Act (1935) s 20(3) ; Criminal Law Sentencing Act (1988) s 58(1)(c); Bail Act (1985) s 17, referred to.
Police v Saunders (2003) 229 LSJS 97, considered.

JOHNSTONE v POLICE
[2008] SASC 357
Magistrates Appeal

NYLAND J: This appeal is against a sentence imposed in the Elizabeth Magistrates Court on 11 September 2008. The appellant was charged on information that on or about 18 July 2008 at Elizabeth Downs he intentionally applied force directly to Koddee John Thomas McKenzie contrary to the provisions of s 20(3) of the Criminal Law Consolidation Act 1935. The offence was designated an aggravated offence. The circumstances of aggravation alleged were that the appellant committed the offence knowing that the victim of the offence was a child of whom the appellant was the parent or guardian. (He is in fact Koddee’s father). The maximum penalty for an aggravated offence is imprisonment for a period of three years.
The sentence which is the subject of the appeal
The appellant pleaded guilty to the charge and was sentenced to be imprisoned for a period of six months. That sentence was however suspended on condition that he enter into a bond for a period of two years in the sum of $200, with conditions which included being under the supervision of a Community Corrections Officer and that he undertake counselling for drug, anger management and domestic family violence issues. He was also required during the period of the bond not to attend at the home premises occupied by the child and other members of his family.
Breach of bond
The appellant was arrested with respect to the charge relating to Koddee on 18 July 2008 and remained in custody until 28 August 2008. The matter was remanded to 4 September 2008 to enable the prosecution to lay a charge against the appellant of being in breach of a bond imposed on 3 September 2007 with respect to charges of threaten harm, aggravated assault and throwing a missile. That bond was for a period of 18 months and…

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 JOHNSTONE v Police

Details

AGLC: JOHNSTONE v Police [2008] SASC 357
Case: [2008] SASC 357
Decision Date: 17 December 2008

CaseChat Overview and Summary

The case of Johnstone v Police involved an appeal against the sentence imposed on the appellant, who was convicted of aggravated assault. The victim was the appellant's son, and the assault occurred during an attempt to discipline the child. The appellant was found to have breached his earlier bail conditions and his bond, leading to the appeal against the sentence for the assault on his child, as well as the consequences of the breaches. The primary issue before the court was whether the sentence for the assault on the child was manifestly excessive, given that it was an isolated act intended to discipline the child without any intent to cause harm. The court was also required to consider the breaches of the earlier bond and bail conditions.

The court determined that while the Magistrate's concern for the serious nature of the assault was understandable, there was an error in the factual basis upon which the sentence was imposed. The court noted that the child did not require any medical treatment at the hospital, despite the extent of the bruising observed. Additionally, the court considered that the appellant had no prior history of assaulting a child, and this was an isolated incident. However, the court emphasised the need to make it clear that any form of violence against a child would not be tolerated. The court found that a sentence of imprisonment was appropriate, taking into account the circumstances and the plea of guilty. The starting point for the sentence was considered to be four months, reduced by one month for the guilty plea, resulting in a sentence of three months' imprisonment. The court also considered the appellant's personal circumstances, including his anger management issues, and decided to suspend the sentence upon the appellant entering into a bond in the same terms as those fixed by the Magistrate.

The appeal was allowed, and the sentence imposed by the Magistrate was set aside. In its place, the court imposed a sentence of three months' imprisonment, suspended upon the appellant entering into a bond of $200 to be of good behaviour for a period of two years. The conditions of the bond were to remain as those fixed by the Magistrate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Although a Child Protection Services doctor examined Koddee’s leg when he was conveyed to hospital, it is clear from the police apprehension report that no treatment was administered. In the circumstances, Mr Katsaras argued that the sentence was manifestly excessive as this was a single act of smacking the child as a matter of discipline for misbehaviour. Smacking was the usual way of disciplining children in the household and the appellant had not intended to injure his son. He regretted his actions and had pleaded guilty. Conclusion The learned Magistrate understandably took a serious view of the appellant’s assault upon Koddee. This was an assault upon a young child by his parent, which according to the police apprehension report:… left the child with deep dark bruising in the shape of a hand and three finger marks on his leg. The matters referred to by Mr Katsaras however support his contention that the learned Magistrate sentenced on an incorrect factual basis. In addition, a starting point of eight months’ imprisonment considered against the statutory maximum of three years appears to be a substantial penalty for an isolated act committed in the circumstances described in the police apprehension report and committed by a person with no prior history of an assault on a child. In the circumstances, I consider that the sentencing discretion has miscarried. As a result, it is appropriate to set aside the sentence imposed for that offence and exercise the sentencing discretion afresh. Although Koddee did not require any medical treatment at the hospital, it is obvious that he suffered a substantial blow from the appellant, given the nature and extent of the bruising which was observed at the hospital a few days later. Further, the appellant is not a first offender as he has a prior conviction for an assault committed in a domestic situation. This was however an isolated incident which occurred when the appellant was endeavouring to discipline his son and was not intended to cause any injury to the child. Nevertheless, the court must make it clear, not only to the appellant but to others who might be like-minded, that violence of any kind to a child will not be tolerated. I therefore consider a sentence of imprisonment is appropriate. Taking into account all the circumstances of this matter, I consider that an appropriate starting point for the imposition of sentence would be a sentence of four months. I would reduce that by one month to give credit to the appellant for his plea of guilty. That results in a sentence of three months’ imprisonment. In my view, the learned Magistrate appropriately took into account the personal circumstances of the appellant when he exercised his discretion to suspend the sentence of imprisonment. I consider that the terms of the bond imposed by the Magistrate should therefore remain, particularly bearing in mind the evidence as to the appellant’s anger management problems. I therefore allow the appeal. I set aside the sentence imposed by the learned Magistrate and in lieu thereof, I impose a sentence of three months’ imprisonment. That sentence will be suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for a period of two years. The conditions of the bond will be as follows:

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.