Landers v Police

[2002] SASC 185

LANDERS v POLICE
[2002] SASC 185

Magistrates Appeal
(ex tempore)

1. GRAY J                 This is an appeal against a sentence imposed by a magistrate.

   Background

2. The appellant, Graham John Landers, was charged with assault occasioning actual bodily harm.[1] He pleaded guilty on 20 March 2002 in the Adelaide Magistrate’s Court.

   [1] The complaint was in the following terms:

3. At about 10.15pm on Friday 28 September 2001, the appellant and the victim were arguing in a hotel car park. The appellant was drunk and during the course of the argument, he punched the victim in the face. The blow damaged several teeth. Following the incident, they walked off together, still arguing.

4. Police attended and located the victim lying in the centre of the road with the appellant standing over her. The victim was unconscious and had difficulty breathing. She was conveyed to hospital by ambulance.

5. The appellant had been in a de-facto relationship with the victim for two years prior to the offence. At times the relationship was acrimonious. On two occasions the victim was said to have stabbed the appellant in the arms and the chest. Violent arguments would frequently occur, particularly during times when they were affected by alcohol.

6. The appellant was subsequently arrested. He was interviewed by the police. He told them that he had been drinking at the Playford Tavern with his nephew and that he had met the victim in the car park. An argument developed. The appellant accepted that he punched the victim in the face with a clenched fist, walked down the street with the victim who continued to yell at him. The victim then suffered an epileptic fit and the appellant went to her aid. The appellant stated to police that he regretted his conduct and that he was influenced by alcohol.

7. In his reasons, the magistrate noted that ‘this incident appears to have been something of a wake-up call’ for the appellant. He accepted that since the offence the appellant had been involved in a methadone program and attending alcoholics anonymous. He had been taking medication for a number of months with considerable relief. He was under the supervision of a social worker at Warinilla and was receiving ongoing treatment at that centre. He was also attending an anger management course. The appellant was residing with his mother and had ceased  his relationship with the victim.

8. The magistrate received a psychological report and a social welfare officer’s report from Drug and Alcohol Service Council at Warinilla. The authors were of the view that a custodial sentence would disrupt the appellant’s ongoing treatment and would be detrimental to his rehabilitation.

9. In his sentencing remarks, the magistrate referred to the appellant’s three prior convictions for assault occasioning actual bodily harm. On each occasion a suspended sentence of imprisonment had been imposed. He noted that the appellant’s last offence had occurred two years prior to this offence. The magistrate mentioned the plea of guilty but he did not indicate that he had any discount to reflect…