LEWIS v POLICE - [2014] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEWIS v POLICE
[2014] SASC 59
Judgment of The Honourable Justice David
7 May 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
Appeal against sentence - appellant pleaded guilty to the offence of aggravated causing harm - appellant sentenced to 7 months imprisonment - whether Magistrate erred in not suspending term of imprisonment imposed.
Held: Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) 20(4), referred to.
R v Jewell [2006] SASC 128, applied.

LEWIS v POLICE
[2014] SASC 59
DAVID J:

The appellant appeals against his sentence of seven months imprisonment for the offence of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The maximum penalty is four years’ imprisonment.
There is no argument presented on appeal that the sentence was excessive but the appellant now argues that the Magistrate erred in not suspending that sentence.
The offending
At approximately 11.25 pm on 17 May 2013 the appellant and a co-accused launched an unprovoked attack upon the victim in the presence of the victim’s girlfriend outside the Royal Hotel, Port Elliot. The appellant started the attack by throwing the first punch and the co-accused joined in the attack. The victim was hit and fell to the ground. The appellant then stomped on the victim’s head as he lay on the ground and the whole incident was captured on closed circuit television. The victim was rendered unconscious and suffered a right anterior maxillary sinus fracture, two black eyes and an injured jaw. He required treatment at hospital and needed follow-up treatment from a dentist.
The appellant pleaded guilty on 30 September 2013 and on 29 January 2014 was sentenced to seven months’ imprisonment. The Magistrate set a notional head sentence of 10 months’ imprisonment but reduced that to seven months, giving the appellant a benefit for his plea of guilty. The Magistrate refused to suspend that term of imprisonment. The co-accused was sentenced to eight months’ imprisonment on 30 September 2013 and that sentence was suspended on his entering into a bond to be of good behaviour for two years. It is to be noted that there is no argument on appeal concerning disparity of sentence between the appellant and his co-accused.
At the time of sentence the appellant was 31 years of age. He has two prior convictions in 2005 for two counts of assault, which took place on the same night. On the first occasion the appellant and a co-accused attacked a male who was walking along the street with his girlfriend. The appellant punched him so that he fell to the ground and then he punched him another 10 to 15 times. Later on that night the appellant and the same co-accused attacked another male walking along the street with his girlfriend and punched him about four times, causing him to fall to the ground. Whilst on the ground the appellant and the co-accused kicked the victim. For those offences the appellant was given a fine for the first conviction and, in relation to the second, was sentenced to three months’ imprisonment, which term was suspended.
A great deal of material concerning the background of the appellant and in particular his psychological problems were tendered before the Magistrate in this matter. It was pointed out to the Magistrate that the appellant had been employed for most of his adult life. He had been diagnosed as having ADHD and dyslexia as a child and this contributed to him suffering from depression since his mid-teens. He has had great trouble with anger management and struggled with drug and alcohol abuse. These problems were all outlined in reports tendered to the Magistrate, which I have seen. As at the date of sentence, the appellant has been seeing a psychologist on an ongoing and regular basis. He is also obtaining assistance for anger management and has the support of his family and is employed.
Appeal
On this appeal Ms Stokes for the appellant argues that there is no clear mistake made by the Magistrate in considering whether there is good reason to suspend the term of imprisonment. That concession is quite properly made. I have looked through the Magistrate’s sentencing remarks with great care and found them to be accurate, detailed and clearly relevant to the issue he had to decide. However, Ms Stokes argues that not enough emphasis has been placed upon the fact that the appellant has a job and that he is continuing with his psychological treatment, especially in relation to anger management. As the reports indicate that he has made some progress, Ms Stokes argues that the Magistrate erred in his discretion in not giving allowance for such progress and the fact that he is employed when deciding whether there is good reason to suspend.
The role of an appellate court in cases such as this was set out succinctly by White J in R v Jewell,[1] where he said at [24]:
A decision to suspend or not suspend a sentence involves an exercise of a discretion. It is in the nature of the exercise of such a discretion that different sentencing courts may reasonably come to differing views. The circumstances in which an appellate court interferes with the exercise of discretion by a sentencing judge are limited. Interference is warranted where a sentencing judge acts on some wrong principle, or on some wrong or incomplete view of the relevant facts, or takes into account an irrelevant consideration, or fails to have regard to a relevant consideration. Interference is also warranted even where no error can be identified if the exercise of the discretion is plainly unreasonable.
[1] [2006] SASC 128.
In my view, the Magistrate considered all of those matters personal to the appellant very carefully. However, because of the serious nature of the offending, bearing in mind that the appellant has convictions for similar offending, persuaded him that there was no good reason to suspend. It is to be noted that the Magistrate, when considering that question of suspension, also considered the question of partial suspension. He said in his sentencing remarks:
Your offending is clearly very serious and there is a need both for general and personal deterrence. General deterrence because the public should be able to attend licensed premises without being set upon and beaten for no reason, and further potential offenders should be made aware that where such offending occurs, particularly in the company of another offender, the courts will deal with such matters seriously. Personal deterrence because you have two prior convictions for offences of violence. Consequently, although there are many factors in your favour and although the co-defendant received a suspended sentence, there is not in my view good reason to suspend the sentence, either wholly or in part. Your offending on this occasion was just too serious. It was a vicious and cowardly attack, fuelled by alcohol, which occurred not only in front of the victim’s girlfriend but in a public place on licensed premises. No real good reason has been proffered for your behaviour and injuries were sustained.
I can find no fault with that reasoning and I find that none of the grounds for interference exist in the present case. Accordingly, the sentencing Magistrate’s discretion has not miscarried.
I dismiss the appeal.