LEE v Police - [2006] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEE v POLICE
[2006] SASC 197
Judgment of The Honourable Justice Layton
30 June 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS - MAXIMUM STATUTORY PENALTY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED
Appellant appeals against sentence of three years imprisonment imposed by a Magistrate pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 - sentence imposed in respect of two counts of assault and one of carrying an offensive weapon - respondent conceded that imposition of three years imprisonment by a Magistrate was a breach of s 19 which limits the term of imprisonment which can be imposed by a Magistrate to two years - respondent submitted that the matter should be remitted to the Magistrate for re-sentencing - appellant submitted that the Magistrate had fallen into error in other respects in sentencing, and asked that the appellant be re-sentenced in this Court - Held: Magistrate erred in failing to clearly identify the factual basis for sentencing - sentence manifestly excessive in any event - appeal allowed - sentence of imprisonment quashed - appellant re-sentenced to imprisonment for six months - imprisonment not suspended.
Magistrates Court Act 1991 s 42; Summary Offences Act 1953 s 15(1)(a); Criminal Law Consolodiation Act 1935 s 39(1); Criminal Law (Sentencing) Act 1988 s 18A, s 19, referred to.
Hunt v Police [2001] SASC 145, applied.
R v Tait & Bartley (1979) 24 ALR 473, discussed.
Police v Curtis (2004) 145 A Crim R 587; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359, considered.

LEE v POLICE
[2006] SASC 197
Magistrates Appeal

LAYTON J: This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991. On 29 March 2006 the appellant was convicted by a Magistrate of one count of carrying an offensive weapon, namely a knife, contrary to s 15(1)(a) of the Summary Offences Act 1953, and two counts of assault on a person other than a family member, contrary to s 39(1) of the Criminal Law Consolidation Act 1935.[1] The maximum penalty for count one is imprisonment for six months or a fine of $2,500. The maximum penalty for counts two and three is imprisonment for a term not exceeding two years for each offence.
[1] Since amended by Act 31/2005.
The Magistrate imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”), and sentenced the appellant to imprisonment for three years with a non-parole period of two years. The term of imprisonment was not suspended. The appellant appeals on the grounds that the sentence imposed was manifestly excessive, and that the Magistrate erred in failing to suspend the sentence.
Prior to the hearing the respondent filed a Supplementary Outline of Argument which indicated that:
1.The appeal is conceded on the basis that the learned Magistrate, having decided that it was appropriate to exercise power under section 18A of the Criminal Law (Sentencing) Act, was unable to sentence the appellant to imprisonment for more than two years in total…
2.It would be appropriate in the circumstances for the Court to set aside the sentence imposed by the learned Magistrate and remit the matter to the same Magistrate for re-sentencing.
These submissions were made in the light of the jurisdictional restriction imposed by s 19 of the Sentencing Act, which provides that:
19—Limitations on sentencing powers of Magistrates Court
(1)     The Magistrates Court does not, unless it is constituted of a Magistrate, have the power to impose a sentence of imprisonment.
(2)     If the Court, constituted otherwise than by a Magistrate, is of the opinion that a sentence of imprisonment should be imposed in any particular case, it may remand the defendant to appear for sentence before the Court constituted of a Magistrate.
(3)     The Magistrates Court does not have the power to impose—
(a)     a sentence of imprisonment that exceeds 2 years; or
(b)     a fine that exceeds $150 000.
(4)     Subsection (3) applies whether the offence to which the sentence relates is a summary offence or a minor indictable offence.
(5)     If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (4), the Court may remand the defendant to appear for sentence before the District Court.
However, despite these concessions, the appellant wished to argue the appeal on the basis that he opposed an order that the matter be remitted, and instead contended that the proper course was for this Court to re-sentence.
General circumstances of the offences
The offences for which the appellant was convicted took place on 23 October 2005 at Morphett Vale. The Magistrate’s judgment of 29 March 2006 sets out the factual findings on which the convictions are based. They were that, at approximately 5:10pm on Sunday 23 October 2005, the appellant approached and started yelling at two women, a Ms Poker and a Ms Feller, near the Woodcroft Shopping Centre. The victim of the assault charges, a Mr Shahin, who had been walking with the women a moment earlier, intervened. The appellant jabbed at Mr Shahin with a knife a number of times before walking off. Thereafter Mr Shahin called the police on his mobile telephone and followed the appellant. Shortly following this a security guard approached Mr Shahin, who told him that the appellant had a knife. At about this point, and while the security guard was holding the appellant’s arms, the appellant head butted Mr Shahin, causing a wound which bled but did not require stitches.
Sentencing process
In sentencing the appellant the Magistrate took into account one prior conviction in 1997 for wounding with intent to cause grievous bodily harm for which the appellant received a head sentence of five years imprisonment with a non-parole period of two years and six months. In relation to that conviction the Magistrate noted that:
I was told that the incident arose out of a physical attack on your part and that you went well beyond the point of self-defence and resorted to violence. The very situation I refer to here has recurred so my views with regard to your rehabilitation are that frankly deterrence needs to be considered in priority.
The Magistrate also took into account submissions that had been made to him about the appellant’s personal circumstances, including the impact that a custodial term would have on the appellant’s housemate and family members. The appellant was nearly 35 years old at the time of sentencing, and was in full time employment, although absent from that work and in receipt of WorkCover.
The respondent has conceded that the appeal should be allowed on the basis that the sentence of imprisonment exceeds the jurisdictional limit imposed by s 19 of the Sentencing Act. The respondent refers in particular to the decision of Lander J in Hunt v Police,[2] in which his Honour said that:
The Magistrate was constrained by s 19 of the Criminal Law (Sentencing) Act 1988 (SA) not to impose a sentence of imprisonment that exceeded two years in respect of any offence. In those circumstances the Magistrate could not impose a penalty of more than two years in respect of the illegal use conviction even though s 86A…provided a penalty of not more than four years.
However, he did treat the offending in relation to counts 1, 3 and 4 as being appropriate to be dealt with as a single sentence under s 18A.
Once the Magistrate decided that it was appropriate to exercise power under s 18A he was not able to sentence the appellant to imprisonment for more than two years, in total, in respect of those three offences. [3]
[2] [2001] SASC 145.
[3] [2001] SASC 145, [45] – [47].
There are differing views in this Court as to whether a sentence imposed by a Magistrate pursuant to s 18A is limited to two years by s 19,[4] however the respondent has conceded in this case that the sentence imposed exceeded the jurisdictional limit. On the basis of that concession, the appeal must be allowed.
[4] See Police v Curtis (2004) 145 A Crim R 587.
Whether it is appropriate to re-sentence or remit to the sentencing Magistrate
The question that remains is whether, in the circumstances, the appropriate order is that the matter be remitted to the Magistrate, as contended by the respondent, or alternatively whether I should proceed to re-sentence the appellant in this Court.
The Magistrate has had the benefit of hearing the evidence in addition to counsel’s submissions on sentence, however, the appellant has contended that the Magistrate was in error on a number of other grounds, in addition to the jurisdictional point. The appellant therefore opposed any order that the matter be remitted to the sentencing Magistrate.
In the course of the argument before me, I raised with both counsel a concern which I had as to the factual basis upon which the Magistrate sentenced, in particular, the use of the knife in a threatening and menacing manner. The witnesses gave varying accounts as to the distance between the knife and Mr Shahin when the appellant was waving the knife. Mr Shahin said that the closest the knife came to him was between one and two metres. One of the other witnesses put the knife as close as 20 centimetres from Mr Shahin’s midriff. The Magistrate’s judgment does not make it clear what his findings are on this issue. Having regard to that lack of clarity, I raised in arguendo whether the Magistrate should have sentenced on the view of the facts most favourable to the appellant.[5]
[5] In sentencing the appellant the Magistrate was required to be satisfied beyond reasonable doubt of any facts adverse to the appellant; see eg R v Olbrich (1999) 199 CLR 270, 281 citing R v Storey [1998] 1 VR 359, 369.
After I had put this proposition both counsel for the appellant and the respondent agreed that this was a concern. Counsel for the respondent added that this was a further reason why the matter should be remitted to the Magistrate for re-sentencing and that I should not myself re-sentence.
There are some other matters, which are relevant to the question of whether it is appropriate to re-sentence on appeal, in addition to the two matters conceded by the respondent. The head sentence imposed pursuant to s 18A of the Sentencing Act was imprisonment for three years with a non-parole period of two years. Quite apart from it being in excess of the jurisdiction of the Magistrate, it also appears to me that this was manifestly excessive having regard to the conduct found against the appellant.
That conduct involved carrying a knife estimated to be between “six and eight inches or eight to nine inches” in length, which is a serious and obvious offensive weapon. Further, this weapon was used during a verbal altercation between the appellant and Mr Shahin, Ms Poker and Ms Feller. The appellant was yelling and swearing at Mr Shahin and the two women, and threatening to slap them. The appellant’s breath smelt of alcohol. Mr Shahin stood between the appellant and the women, and put his hands on the appellant’s chest. The appellant said “control your girlfriend” just before Ms Poker pushed the appellant away in the shoulder.
The precise use to which the knife was put is somewhat uncertain but it appears that the Magistrate accepted Ms Poker’s evidence that the first motion with the knife was a swinging motion towards Mr Shahin’s throat, whereupon Mr Shahin backed away until he was about three metres away. Thereafter the appellant moved forward, this time jabbing the knife toward Mr Shanin’s midriff. On the most favourable version of the evidence, the closest point which the knife was from Mr Shahin, was between one and two metres rather than the 20 centimetres estimated by Ms Feller. Thereafter the appellant walked towards a service station some 50-60 metres away. That was the completion of the evidence on the second offence.
As the appellant walked away, Mr Shahin called the police from his mobile phone and followed, keeping approximately 10 metres behind the appellant. The appellant entered the shop at the service station and was seen to be walking around the aisles before proceeding to a checkout. The appellant then walked towards the Woodcroft Tavern being some 250 metres away. During that walk the appellant and Mr Shahin were arguing. Mr Kotz, who was a security guard and whose evidence was accepted, approached them and at that point they were “a hand reach apart”. They were still arguing and Mr Kotz tried to move the appellant on towards the tavern. Argument continued between the appellant and Mr Shahin and then the appellant moved around Mr Kotz and got Mr Shahin in a headlock, whereupon:
Mr Kotz responded by grabbing the defendant’s arms but [the defendant] head-butted Mr Shahin on the left side of his face. The cut bled. Mr Kotz then wrestled the defendant to the ground and police later arrived.
The Magistrate accepted that the head-butt was:
…indicative of a deliberate act on the defendant’s part in which the defendant, although restrained by the arms of Mr Kotz, used “quite a bit of force”.
So far as the injury was concerned the Magistrate found that Mr Shahin:
…had treatment although fortunately there was no consequence at least so far as the matters of sutures and subsequent treatment were concerned or if there was, I was not told of it, and I proceed to make no assumptions.
That completed the evidence of the third offence.
A matter of considerable relevance to sentence was that there was one relevant prior conviction and as the Magistrate found:
You have one relevant prior court appearance and although some eight years and three months ago now nevertheless it is a serious one and related in terms of the category of offending. On 23 December 1997 you appeared before and were sentenced by the Supreme Court for the offence of wounding with the intent to cause grievous bodily harm. You received a head sentence of five years with a non-parole period of two years and six months. I was told that the incident arose out of a physical attack on your part and that you went well beyond the point of self-defence and resorted to violence.
The Magistrate also had regard to the following:
You have dependents. I am told that there is a housemate who will suffer if you are required to serve a custodial term. You have a private rental arrangement with a friend. You also to one degree or another support a stepdaughter and perhaps there are other family members. You are in employment but the position currently is that you are in receipt of WorkCover arising out of a work related injury.
The Magistrate considered the question of both personal and general deterrence when he stated in relation to the prior court appearance:
The very situation I refer to here has recurred so my views with regard to your rehabilitation are that frankly deterrence needs to be considered in priority.
The Magistrate also stated:
In my view, the deterrence aspect, that is that which is referable to you personally and to others in the community who are of a like mind, must be given priority to other considerations. In my view, you posed a serious threat here to other people and the situation was inflamed by your actions.
In my view there was inadequate consideration given to the precise circumstances of the offending and a failure to make appropriate findings on important circumstances before then proceeding to sentence. Properly looked at, the appellant was carrying a large offensive weapon, which was then used in a threatening manner but not in such close proximity as to have given rise to physical injury. The circumstances leading up to the head-butting suggest that the appellant had not pursued Mr Shahin, but instead had moved away from him. It was Mr Shahin who, in spite of the earlier incident with the knife, followed the appellant at close range. This led to a further altercation resulting in the head-butting of Mr Shahin’s cheek causing a minor injury which did not require sutures.
In the circumstances of these offences and the appellant’s personal circumstances, even taking into account the prior conviction, in my view the penalty imposed by the Magistrate is manifestly excessive. This finding, in combination with the earlier two admitted errors, is sufficient for me to be satisfied that the appropriate course is that I re-sentence the appellant. In addition, I take into account the fact that the appellant has already been in custody for some 13 weeks and that if the matter is remitted to the Magistrate there is a potential that the appellant might be referred to the District Court for sentence, giving rise to further delay. I consider it appropriate in all of the circumstances to re-sentence the appellant in this Court.
Re-sentencing
Submissions were made by the parties in the event that I decided to re-sentence the appellant. With regard to the earlier conviction on 23 December 1997, counsel for the appellant submitted that this offence took place in the context of the appellant and his then girlfriend having been harassed by the victim in that case who was apparently attracted to the appellant’s girlfriend. The appellant had previously been hit by that victim but on the particular occasion the subject of the previous offence he attacked the victim, stabbing him with a knife some ten times in the arm and torso. The appellant was sentenced to five years with a non-parole period of two years and six months. I accept the submissions with regard to the seriousness of that offence made by the respondent.
The respondent went on to submit that as a consequence of the decision of Full Federal Court in R v Tait & Bartley,[6] the prior conviction was relevant not only as a relevant previous conviction, but also that the use of a knife in the prior offence made the offence at bar more serious. I do not accept this submission. I consider that the observations made by the Full Court in Tait,[7] do not stand for the proposition advanced by the respondent. The quotation relied upon by the respondent is as follows:
The crime for which Tait was sentenced approaches the most serious type of crime to which the maximum penalty is applicable. It is not necessary to form any view as to the deliterious effects of cannabis. The relevant view in that regard is that which has been expressed by the legislature. It is for the courts to evaluate only the seriousness of the conduct by which the law as expressed in the statute has been violated.
There are grounds for concluding that the nature of the crime in the present case falls little short of the worst type of case. It was the only importation which either defendant had thus far carried out; there was no element of violence or corruption of narcotics agents.[8]
[6] (1979) 24 ALR 473.
[7] (1979) 24 ALR 473, 485.
[8] (1979) 24 ALR 473, 485.
In my view, the Full Court in this passage is stating no more than that, with regard to crimes of the type for which Mr Tait was being sentenced, namely large-scale drug trafficking, the Court was required to evaluate the seriousness of the conduct by reference to the seriousness of the offence. That case says nothing about how subsequent offences should be treated and whether or not subsequent offences take on the flavour of being more serious offences by virtue of earlier offending.

That is not to say that the appellant’s previous conviction is not of real significance. It was indeed very serious offending for which he has already received imprisonment. He appears not to have learnt a lesson from that imprisonment and has again become involved in an offence involving a knife which was the same weapon used in the prior conviction.
Having said that, however, I note that this prior offence was some eight years before the current offences and that there have been no offences in the intervening period. I am also informed by counsel for the appellant that since his imprisonment he has come across the earlier victim of that crime in provocative circumstances, but has not retaliated.
Therefore I regard the appellant as being a person with no previous convictions save one very serious conviction in a domestic circumstance for a very serious offence. There is no relationship to the circumstances of this offence except for the use of the weapon. The weapon was some one to two metres from the victim and it did not wound. Its use arose out of an altercation. The head-butting, following a further altercation, caused minor injury. It was not in a general sense provoked by the appellant, but brought about through the victim following the defendant, which though unwise did not in any way justify him being the subject of that violent act.
I am also informed that the appellant had been in employment with an asbestos company. He had been in employment for some months prior to sustaining a work injury for which he was still on compensation awaiting a certificate to allow him to return to work. As to his other personal circumstances he had been in a de facto relationship, which ceased in the year 2002, and whilst he had stepchildren by that relationship there was no close connection between them.
I regard the question of personal and general deterrence to be relevant and personal deterrence in this case does seem to me to be an important factor. In all of the circumstances I think an appropriate penalty would be a sentence of imprisonment for six months.
I now turn to the question of whether “good reason” exists to suspend the sentence. In my view the circumstances do not warrant suspension. The offending was serious. The appellant’s previous conviction was serious and resulted in a significant period of imprisonment. There are no personal circumstances which would amount to good reason to suspend in the other circumstances of this case. I therefore refuse the application for suspension of the sentence.
It is necessary, however, to take into account that the appellant has already spent some months in custody, and it is appropriate in those circumstances that the sentence of imprisonment be backdated.
I make the following orders.
The appeal is allowed and the period of imprisonment imposed by the Magistrate is quashed. In lieu thereof the appellant is sentenced to imprisonment for a period of six months, imposed pursuant to s 18A of the Sentencing Act, to commence on 29 March 2006. In all other respects the orders of the Magistrate to stand.