Knight v Police - [2009] SASC 296

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KNIGHT v POLICE
[2009] SASC 296
Judgment of The Honourable Justice Sulan
18 September 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
Appeal against sentence - appellant released on bail after pleading guilty to assault, failing to provide his name and address to a police officer and aggravated assault of a police officer - appellant pleaded guilty to contravening a condition of his bail agreement through further offending - Magistrate imposed a cumulative sentence of nine months' imprisonment, three months of which was suspended - whether Magistrate had sufficient regard to the appellant's prospects of rehabilitation and other circumstances personal to the appellant which gave good reason to suspend sentence - appeal allowed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, referred to.
R v Proom (2003) 85 SASR 120; Vartzokas v Zanker (1989) 51 SASR 277, considered.

KNIGHT v POLICE
[2009] SASC 296
Magistrates Appeal

SULAN J: The appellant pleaded guilty to assaulting Shirley Ann Burfitt, failing to provide his name and address to a police officer, aggravated assault of Adam John Daviess, a police officer, and resisting a police officer in the execution of his duties. All offences occurred on 11 March 2009 when the appellant went to the home of Ms Burfitt, his mother-in-law, late in the evening. He was arrested and taken into custody. He was released on bail. The conditions of his release included a condition that he be prohibited from consuming alcohol or cannabis during the period of his bail and, further, he have no contact with Shirley Burfitt.
On 8 May 2009, the appellant was arrested by police whilst he was standing at the front door of Ms Burfitt’s home. He was affected by alcohol. He was charged with contravening a condition of his bail agreement. The appellant pleaded guilty to that offence.
On 2 June 2009, the appellant was sentenced to two months’ imprisonment reduced from three months, having regard to his plea of guilty for the offence of assault, four months’ imprisonment reduced from six months, having regard to his plea of guilty for the offence of aggravated assault, and three months’ imprisonment reduced from four months, having regard to his plea of guilty for failing to comply with a bail agreement, each of the sentences to be served cumulatively upon the other. It follows that the total period of imprisonment is nine months. As to the offences of refusing to provide his name and address and resisting police, he was discharged without further penalty.
The Magistrate ordered that the appellant be released after serving six months’…

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 Knight v Police

Details

AGLC: Knight v Police [2009] SASC 296
Case: [2009] SASC 296
Decision Date: 18 September 2009

CaseChat Overview and Summary

In the matter of Knight v Police, the appellant has appealed against the severity of the sentences imposed on him by the Magistrates Court of South Australia. The appellant was found guilty of assaulting a police officer, failing to provide his name and address to a police officer, and aggravated assault of a police officer. The appellant pleaded guilty to further offending while on bail. The Magistrate imposed a cumulative sentence of nine months' imprisonment, with three months suspended. The appellant submits that the total sentence should have been suspended. The appeal raises the issue of whether the Magistrate had sufficient regard to the appellant's prospects of rehabilitation and other personal circumstances which gave good reason to suspend the sentence.

The appeal to the Supreme Court of South Australia focused on whether the Magistrates Court had appropriately exercised its discretion in imposing the sentence. The appellant's counsel argued that the Magistrate failed to adequately consider the appellant's personal circumstances, including his strong family ties, his employment history, and his efforts to address his alcohol dependency through counselling. The appeal also questioned whether the sentence was manifestly excessive given the appellant's otherwise non-violent nature and the complainant's willingness to dismiss the charges. The court was required to determine whether the Magistrate's decision to not suspend the sentence constituted a miscarriage of justice or an inappropriate exercise of discretion.

The Supreme Court found that the Magistrate had not sufficiently taken into account the appellant's personal circumstances and prospects for rehabilitation. The court highlighted the importance of considering factors such as the appellant's stable relationship, his employment, and his commitment to addressing his alcohol dependency. The Supreme Court concluded that the sentence imposed was manifestly excessive and that the Magistrate had not appropriately exercised his discretion. The appeal was allowed, and the sentence was set aside. The court ordered that the appellant be released on bail pending a re-sentencing hearing.

The final orders of the court were that the appeal against sentence be allowed, the original sentence set aside, and the appellant be released on bail pending a re-sentencing hearing. The court directed that the re-sentencing hearing take into account the appellant's prospects of rehabilitation and other personal circumstances.

Orders

Orders of the court

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Background

Background to the litigation

The appellant has appealed against the severity of the sentences, and submits that the total sentence should have been suspended. Background facts The circumstances of the first incident are that on 11 March 2009 the appellant attended the home of his mother-in-law, Ms Burfitt. The appellant’s wife was at the home. The appellant was severely intoxicated. He shouted that he intended to strangle his wife if he could get in. The police were called. The appellant refused to provide his name and address. He was arrested. As he was being placed in the police vehicle, the appellant kicked out at Constable Daviess, one of the officers who had attended. The appellant struck Constable Daviess in the throat. It was accepted that the appellant did not intend to strike Constable Daviess in the throat, although he intended to kick out at the officer. Once at the police station, the appellant became aggressive. During the altercation, the appellant sustained a minor head injury. The appellant was granted bail. One of the conditions of his bail was that he not approach his mother-in-law and that he abstain from consuming alcohol or cannabis. On 8 May 2009, the appellant breached the bail agreement by attending his mother‑in-law’s home. At the time, he was intoxicated and abusive. The appellant complains that the total sentence was manifestly excessive. His counsel submits that the sentences should have been suspended. The proceedings before the Magistrate The appellant tendered two affidavits of Ailyn Rose Libo-on, the solicitor who acted for the appellant before the Magistrate. Ms Lib-On made submissions to the Magistrate. She submitted that the appellant, who is 33 years of age, had been in a strong and stable relationship with his partner for over 12 years. There are three children of the relationship, aged 11, eight and three. The appellant had been employed for 14 years as a leading hand at Carter Harvey. She submitted that the complainant, Shirley Burfitt, had made a statement that she did not wish the charges against the appellant to proceed. In the statement, she stated:I, Shirley Burfitt, make a statement wishing for the charges against Dane Knight involving threats to myself be dismissed, Dane is part of my family and I feel that he has made the effort to change his behaviour and generally does the right thing for my daughter and their young children. I believe he made an intoxicated error on March 11 and would not do what he threatened and I believe that he will not repeat this behaviour in the future. Dane had resisted the temptations of alcohol for a few years prior and to my knowledge has stayed sober since that night. The appellant’s partner provided a statement on 12 March 2009 that she was prepared for the appellant to return to live with her and their children, provided that he was no longer affected by alcohol. The solicitor submitted to the Magistrate that the appellant had pleaded guilty and accepted full responsibility for his actions. She tendered a letter written by the appellant in which he apologised to the police for his conduct. In the letter, he makes reference to the fact that alcohol was the root of his problem and that, although he had abstained from it for a long time, he had reverted to drinking alcohol to excess on these occasions which were the subject of the charges. He advised that he was receiving counselling for his problem, and that he intended to refrain from consuming alcohol in the future. In his letter to Constable Daviess, he expressed regret for his actions and stated that his conduct towards the police was out of character.

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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