Little v Police - [2006] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LITTLE v POLICE
Judgment of The Honourable Justice White
12 April 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Appeal against conviction and sentence - accused pleaded guilty to theft and found guilty of one count of assault occasioning actual bodily harm and two counts of assault with intent to resist or prevent lawful apprehension: s 43(c) of the Criminal Law Consolidation Act - whether Magistrates Court record of outcome accurately reflects orders made by magistrate - whether there was sufficient evidence on which to find accused guilty of offences against s 43(c) - consideration of elements of offence against s 43(c) - prosecution not required to prove existence of arrest or attempted arrest at time of assault - sufficient evidence on which to find charges proved - whether sentence manifestly excessive in all the circumstances - whether sentence ought to have been suspended - appeal against convictions allowed for purpose of correcting Magistrates Court record of outcome - appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 s 40, s 43, s 134, s 271; Criminal Law (Sentencing) Act 1988 s 18A; Summary Offences Act 1953 s 76; Correctional Services Act 1982 s 74A; Crimes Act 1958 (Vic), s 31; Offences Against the Person Act 1861 (UK) s 38, referred to.
R v McCabe (1904) SALR 115, not followed.
R v Self [1992] 3 All ER 476; R v Heavey (1965) 84 WN (Pt 1) NSW 248, discussed.
R v Lee [2001] 1 Cr App R 19; R v Reynhoudt (1962) 107 CLR 381; R v Galvin (No 2) (1961) VR 740; State of Tasmania v Lee [2005] TASSC 117, considered.

LITTLE v POLICE
[2006] SASC 101
Magistrates Appeal

WHITE J: This is an appeal against both conviction and sentence.
The appellant pleaded guilty to a charge of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (“CLCA”) and after a trial, was found guilty of an offence of assault occasioning actual bodily harm (Count 2) contrary to s 40 of the CLCA, and of two offences of assault with intent to resist or prevent his lawful apprehension for an offence (Counts 3 and 4), contrary to s 43(c) of the CLCA.
Circumstances of the Offences
Each of the offences was committed on 23 October 2003. On that day, the appellant was at a shop at the Munno Para Shopping Centre with a friend, Ms Curtis, and his 12 year old son. Ms Curtis selected a CD rack from a display. At about the same time, the appellant was observed to place some CDs down the front of his jeans. At the check-out, Ms Curtis paid for the CD rack but the appellant did not pay for the CDs. The appellant was accosted by two representatives of the store a short distance…

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.

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Details

Case: [2006] SASC 101
Decision Date: 12 April 2006

CaseChat Overview and Summary

The appeal in Little v Police involved the appellant contesting his conviction and sentence in the Magistrates Court of South Australia. The appellant had pleaded guilty to theft and was found guilty of assault occasioning actual bodily harm, and two counts of assault with intent to resist or prevent lawful apprehension. The case was heard by the District Court of South Australia. The primary legal issues revolved around the accuracy of the Magistrates Court record of outcome, the sufficiency of evidence for the charges under s 43(c) of the Criminal Law Consolidation Act, and the appropriateness of the sentence imposed.

The court examined whether the Magistrates Court record of outcome accurately reflected the magistrate's orders. It was determined that the record incorrectly indicated a conviction and sentence for Count 3, whereas the magistrate had intended to impose a sentence only for Counts 2 and 4. The court found that the magistrate's oral sentencing remarks clarified that no conviction or penalty was intended for Count 3. Regarding the sufficiency of evidence, the court held that the prosecution did not need to prove the existence of an arrest or attempted arrest at the time of the assault to find the appellant guilty under s 43(c). The court found that there was sufficient evidence to prove the charges, as the appellant's actions were consistent with an intent to resist lawful apprehension. Finally, the court reviewed the sentence, concluding that while the sentence was severe, it was not manifestly excessive given the nature of the assaults. The court also determined that the sentence should not have been suspended.

The court allowed the appeal against the convictions to correct the Magistrates Court record of outcome, ensuring it accurately reflected the magistrate's intentions. The appeal against the sentence was dismissed. The final orders included correcting the Magistrates Court record of outcome to reflect that no conviction or penalty was imposed for Count 3, while maintaining the eight-month sentence for Counts 2 and 4.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The magistrate found the charges proved on 13 December 2005. He sentenced the appellant on 20 December 2005. The appeal to this Court was instituted on 18 January 2006. This was outside the 14 day period fixed by SCR 97.04. The failure to institute the appeal within time resulted from some delay over the Christmas holiday period in the appellant’s solicitor receiving the transcript of the magistrate’s ex tempore decision on the trial and of his sentencing remarks. None of the delay was attributable to the appellant personally. The respondent did not oppose the granting of an extension of time. I am satisfied that it is appropriate for an extension of time to be granted and extend to 18 January 2006 the time within which the appeal could be instituted. The Sufficiency of the Evidence for Count 4 Section 43 of the CLCA provides:Any person who— (b) assaults, resists or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such an officer; (c) assaults any person with intent to resist or prevent the lawful apprehension or detention of himself, or of any other person, for any offence, shall be guilty of an offence and liable to be imprisoned for a term not exceeding five years. The appellant submits that an element of a contravention of s43(c) to be established by the prosecution is that a person was in fact effecting, or intending to effect, the lawful apprehension or detention of an accused for an offence. In addition, the prosecution must also establish, of course, that the accused assaulted a person with the intention of resisting or preventing such a lawful apprehension or detention. Ms David, who appeared for the appellant, put her submissions on this aspect of the appeal in two ways. In the first place, it was submitted that the offence created by s 43(c) assumes a certain state of affairs and, if that state of affairs does not exist, the offence cannot be committed. That state of affairs is the actual or imminent lawful apprehension of a person for an offence. In the circumstances of the present case, it would require the actual or imminent apprehension of the respondent for the offence of theft. Were it otherwise it would, it was submitted, make a “nonsense” of s 43(c). Related to that submission was another, namely that as a matter of law, unless it could be established that an apprehension was being attempted, or was imminent, it could not be established that the appellant had the state of mind required for the offence. It was submitted then that the evidence indicated that neither Ms Cotton nor Ms Wilding was, at any time, attempting to effect, or even intending to effect, the lawful apprehension or detention of the accused. Hence, it was submitted that the magistrate should have found the evidence insufficient to make out Count 4. I am satisfied that this submission is correct insofar as it relates to the actions and intentions of Ms Cotton and Ms Wilding. The effect of their evidence was that they were concerned to recover the stolen CDs. They hoped to be able to do that by confronting the appellant and demanding the return of the CDs. They did not intend to apprehend him or to detain him. If the appellant had not returned the CDs they would not, in accordance with their employer’s policy, have sought to prevent him leaving the shopping centre. Ms Cotton said of her intentions:I wanted to get the CDs and go. That’s all … I was quite happy to let him walk away once I had received the CDs, quite happy to.

Decision

Reasons for decision

The appellant was charged with three offences of assault. The first (Count 2) was a charge of assaulting Ms Cotton and causing her actual bodily harm, contrary to s 40 of the CLCA. Ms Cotton was struck to her head and suffered significant bruising in and about her left eye as well as lacerations to her scalp. Counts 3 and 4 alleged that the appellant had assaulted Ms Cotton and Ms Wilding respectively with the intent of resisting or preventing the lawful apprehension of himself for an offence, contrary to s 43(c) of the CLCA. Magistrate’s Decision At the trial each of Ms Cotton, Ms Wilding and the appellant gave evidence. The magistrate found each charge of assault proved. He accepted Ms Cotton and Ms Wilding as being generally reliable witnesses, and rejected the appellant’s account of events entirely. The magistrate considered the assaults sufficiently violent to warrant the imposition of a sentence of imprisonment. He then said:Clearly the assault occasioning actual bodily harm is the most serious charge. In relation to Counts 2 and 4, I consider a sentence of eight months imprisonment is the appropriate sentence. I will indicate that because of the sentence of imprisonment that I am imposing for those matters I don’t propose adding any additional sentence of imprisonment or further penalty for the offence of theft to which you have pleaded guilty. The magistrate then considered a submission that any sentence of imprisonment should be suspended, and rejected it. Although the Magistrates Court record shows that a single sentence of imprisonment for eight months was imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 in respect of Counts 2, 3 and 4, the magistrate’s remarks at the time of sentencing indicate that that sentence was imposed in respect of Counts 2 and 4 only. In respect of the offence of theft, the magistrate recorded a conviction but discharged the appellant without imposing any penalty.Issues on Appeal The disconformity between the magistrate’s sentencing remarks and the signed record of outcome resulted in some uncertainty at the hearing of the appeal. Following the hearing of the parties’ substantive submissions, I requested, pursuant to SCR 97.14, a report from the magistrate as to the basis of his sentence. The magistrate reported that he had not intended to record a conviction or to impose any penalty in respect of Count 3, as he had taken the view that the conduct comprising that offence was essentially the same as that comprising Count 2 which was the more serious offence. Insofar as the court file indicated that a conviction had been imposed on Count 3, and the s 18A sentence imposed in respect of that offence as well as Counts 2 and 4, it was in error. On the initial hearing of the appeal (prior to receipt of the magistrate’s report), Ms David, who appeared for the appellant, confined the grounds of appeal to the following:1.The conviction on Count 3 for the offence of assault with intent to resist or prevent lawful apprehension should be quashed as an abuse of process because the conviction on Count 2 for the offence of assault occasioning actual bodily harm comprised the same conduct on which the prosecution relied for Count 3.2.Further, or in the alternative, each of the convictions on Counts 3 and 4 should be quashed because there was insufficient evidence on which those charges could be found proved. 3.The sentence of imprisonment for eight months was manifestly excessive.4.Even if the sentence of eight months was not manifestly excessive, the magistrate had erred in declining to suspend that sentence.

Ratio Decidendi

Legal Principle Established

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