Lindsay v Police No. Scgrg-97-1041 Judgment No. S6374

[1997] SASC 6374

TUESDAY, 16 SEPTEMBER 1997

LINDSAY  v  POLICE

Magistrates Appeal

Prior J

This is an appeal against a sentence imposed in the Magistrates Court at Murray Bridge. 

The appellant pleaded guilty to assaulting a woman at Murray Bridge on 26 May 1997.  She admitted the offence on her first appearance in the Magistrates Court on 23 June.  The magistrate heard submissions and sentenced that day.

The magistrate was told that the victim was walking on Francis Street, Murray Bridge, to be confronted by the appellant who accused the other woman of having an affair with her de facto.  Without warning, the appellant was said to have assaulted the victim, repeatedly punching the back of her head with a right clenched fist, using her left hand to pull on the victim's right wrist and pulling her down.  It was also said that the appellant pulled hard on the victim's hair and attempted to knee her in the head.  Some punches were fended off by the victim, by covering her face with her hands. The prosecutor told the magistrate the victim was visibly shaken when speaking with police.  She had a small amount of blood showing on the top of her head from a small, half-centimetre cut.  The victim told police she would see a doctor for a check‑up as she was dizzy and had a general soreness on her face, in the area of her jaw.  The assault was witnessed by someone who spoke of the appellant pulling victim's hair and trying to bang her head into the cyclone wire fence of a doctor's surgery, situated on Francis Street.  The appellant was spoken to by police.  She was cooperative and made full and frank admissions.  She said that she just snapped.  She told the police of seeing a doctor for depression suffered because of the alleged affair. She said she was sorry for what had happened.  The victim was innocent, but because of pressure the appellant had snapped.

Counsel told the magistrate that the appellant had two children by her de facto.  There had been problems in the past with drugs and alcohol.  There had been a number of separations, when the appellant was accommodated in women's shelters.  After separating in October 1996, the appellant moved into a women's shelter at Murray Bridge.  She commenced a course of prescribed Valium to assist her to overcome her drug addiction.  The appellant was told that the appellant's de facto had commenced a relationship with the victim during this period and that there was a reconciliation in January of this year.  However, the appellant believed that the relationship with the victim was continuing.  She was upset and jealous.  There were a number of arguments.  She continued to see her doctor, in fact, she had been to see her doctor just before seeing the victim.  The appellant said she went up to the victim to say “hello”, with the victim responding by asking what the hell she wanted, the appellant then grabbing the victim and assaulting her in the manner described by the prosecution.  The appellant's counsel told the magistrate that after the incident she was remorseful, as the victim had done nothing to provoke the assault.  The magistrate was told of the appellant's personal circumstances, I have referred to some of that already.  Reference was made to that again in the course of submissions before me.

In his short extempore sentencing remarks, the magistrate described the offence as a “dreadful offence”, saying that it was the height of anti-social conduct.  He also said there was no justification in approaching the victim in the manner that she did.  In submissions before me, it was put that the magistrate's remarks were not a proper reflection of the factual circumstances.  I do not accept that.  The fact was that whilst the meeting was open to the description of being a chance meeting, the fact was that the appellant was in her car when she chose to stop and go towards the victim.  As has been emphasised before me, the fact remains that the attack upon this woman involved blows to the back of her head.  That is a circumstance which of itself suggests that there was an opportunity to stop after the snapping occurred.

The magistrate ordered a sentence of imprisonment for ten weeks but suspended that sentence upon the appellant entering into a bond in the sum of $10 to be of good behaviour for eighteen months.  A condition of the bond was that the appellant be under the supervision of a probation officer, obeying that officer's directions, particularly with respect to therapy programmes or counselling with respect to drug and alcohol abuse.  The bond was a bond to be of good behaviour.

In this appeal it is complained that the sentence was manifestly excessive. A particular submission put to me that was not put in the court below, relied upon the provisions of s19A of the Criminal Law (Sentencing) Act 1988. . Mr Boucaut submitted that the magistrate ought to have considered the use of that sentencing option, and if that were done, plainly a sentence of imprisonment was inappropriate. I agree that s19A was a sentencing option for the magistrate in this case. It is of significance to note that by s19A(2)(b), any restraining order going under that section is not a sentence for the purpose of the Criminal Law (Sentencing) Act; nor could it be seen as a sentence of itself for the admitted assault on the occasion the subject of the charge. 

I do not think that any proper complaint could be made here about any failure to invoke s19A if it be the fact that the magistrate did not turn his mind to that sentencing option. A further submission to me was that from the magistrate's sentencing remarks he has plainly not considered other sentencing options, a fine, a fine together with a bond or a community service order by way of a sentence. It is not the law that a magistrate has to state that he has considered those other sentencing options. This court cannot assume that the magistrate failed to consider the sentencing options available in this or any particular case.

Reliance was placed upon s11 of the Criminal Law (Sentencing) Act. The submission was that this was not a case requiring the imposition of a sentence of imprisonment.  A fine, community service, or both were appropriate having regard to the seriousness or circumstances of the offending. It was said that the magistrate erred by failing to give sufficient weight to the fact that the offending was not premeditated but an impulsive response by the appellant in a depressed state in circumstances of relationship difficulties.

It was also said that the magistrate had failed to have due regard to the plea of guilty and cooperation with the police. It was the fact as the magistrate was told that she had no relevant convictions. She was contrite and remorseful. The appellant was unlikely to re-offend but any risk of that could be accommodated in s19A.

I think the submission that the appellant had learned a great lesson from the experience is correct. As for another submission, also was that the assault was at the lower end of the scale for offences of this type, it has often been observed that it is difficult to identify a scale for assaults given that they can be so many and varied. That being said, it is true that the victim did not suffer severe harm as a result of this unprovoked attack.

There was a further submission that the sentence of imprisonment was too long even if otherwise properly imposed.  So too, that the duration of the bond was too long and that this Court should interfere. Reliance was placed upon well known authority including Elliot v Harrison (No 2)[1], and Webb v O'Sullivan[2],.

[1] (1976) 13 SASR 516

[2] (1952) SASR 65

Counsel for the respondent maintained that this was a case where this Court should not interfere. Reliance was placed upon the observations of Bray CJ in Birch v Fitzgerald[3],. I agree that an element of public deterrence is involved in this case notwithstanding the peculiar circumstances of the assault.  In my view there is no proper basis upon which this Court can interfere with the exercise of the magistrate's sentencing discretion. The magistrate was entitled to regard the offence as serious and one for which a sentence other than imprisonment was inappropriate having regard to the gravity or circumstances of the offence.

[3] (1975) 11 SASR 114 at 116-117

The magistrate's language was plain enough. The sentence imposed was one which I would identify as certainly severe.  I may have fixed a different sentence than that imposed by the magistrate if I had been the judicial officer at first instance.  But that is not the test.  I cannot say that it is manifestly excessive.

The appeal is dismissed.  The appellant is to pay the respondent's costs fixed at $150.  

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT OWING TO FAILURE OF FOOTNOTE TRANSFER TO JURIS

(1976) 13 SASR 516

1. (1952) SASR 65

1. (1975) 11 SASR 114 at 116-117