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…

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 LEWIS v POLICE

Details

AGLC: LEWIS v POLICE [2014] SASC 59
Case: [2014] SASC 59
Decision Date: 7 May 2014

CaseChat Overview and Summary

In the case of Lewis v Police, the appellant was convicted of the offence of aggravated causing harm and sentenced to seven months imprisonment. The appeal was focused on the sentence imposed by the Magistrate, specifically whether the Magistrate erred in not suspending the term of imprisonment. The appeal was brought before the Supreme Court of South Australia.

The primary legal issue before the court was whether the Magistrate had erred in not suspending the term of imprisonment imposed on the appellant. The appellant argued that the Magistrate had not given appropriate consideration to the principles and factors that should be taken into account when deciding whether to suspend an imprisonment sentence. The court was required to consider the relevant principles and factors and determine whether the Magistrate had applied them correctly.

The court noted that the decision to suspend an imprisonment sentence is a matter within the discretion of the court. The court must consider all relevant principles and factors and exercise its discretion in a manner that is just and appropriate in the circumstances. The court found that the Magistrate had considered the relevant principles and factors and had exercised its discretion in a manner that was just and appropriate. The court concluded that the Magistrate had not erred in not suspending the term of imprisonment imposed on the appellant.

The appeal was dismissed, and the original sentence of seven months imprisonment was upheld. The court found that the sentence was appropriate and just in the circumstances and that the Magistrate had not erred in imposing it. The appellant's appeal against sentence was therefore unsuccessful.

Orders