Lock v Police - [1999] SASC 50

LOCK v POLICE
[1999] SASC 50

Magistrates Appeal
Nyland J

This is an appeal against sentence. On 3 December 1998, the appellant appeared before a stipendiary magistrate sitting at Christies Beach. He pleaded guilty to a number of offences charged on separate complaints, viz a complaint alleging an offence of assault occasioning actual bodily harm and wilful damage both committed on 28 November 1996; a complaint alleging assault, wilful damage and failure to stop, all committed on 9 January 1998; a complaint alleging a charge of driving without due care on 10 January 1998; an information alleging the offence of assault occasioning actual bodily harm on 11 March 1998; and a complaint of drive disqualified and a charge of failure to notify registrar both committed on 11 June 1998. The complaints also included some other charges which were withdrawn following the entry of the pleas of guilty.
The most serious matter before the court was the information alleging the charge of assault occasioning actual bodily harm on 11 March 1998. The victim of that offence was T, the appellant’s stepdaughter. At the relevant time T was aged four and a half years. The matter came to the attention of police as a result of a call from social workers who had received information about the appellant hitting T. The social workers took T to the Flinders Medical Centre where she was examined by a specialist who provided a report as to her injuries. It was noted that T had suffered extensive bruising on her legs and buttocks which were consistent with having been struck with a belt. The magistrate was provided with a copy of the appellant’s antecedent report which appeared in the main to relate to driving offences.
At the hearing in the Magistrates Court and on this appeal, the appellant was represented by Mr Katsaras, of counsel. After hearing submissions, the magistrate sentenced the appellant to be imprisoned for a period of two years and six months with respect to the offence committed against T. He fixed a non-parole period of 18 months. The magistrate convicted the appellant without penalty on all other matters.
The appellant had been in custody since 25 August 1998. The magistrate refused to back-date the sentence as he considered that the appellant had only himself to blame for that period in custody, having failed to attend court on a number of occasions.
The magistrate, understandably took a serious view of all of the appellant’s offending. His remarks suggest that it was his intention to take advantage of the provisions of s18A of the Criminal Law (Sentencing) Act 1988 in order to impose a global penalty, at least with respect to the assault matters, and possibly the charges of wilful damage. It is clear that when he recorded convictions without penalty with respect to the majority of the offences, he was not purporting to exercise the power contained in s15(1)(b) of the Criminal Law (Sentencing) Act 1988. In addition, if it had been his…

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

AGLC: Lock v Police [1999] SASC 50
Case: [1999] SASC 50
Decision Date: 19 February 1999

CaseChat Overview and Summary

In the matter of Lock v Police, the South Australian Supreme Court considered an appeal against sentence. The appellant, who had been in custody since August 1998, pleaded guilty to multiple charges including assault occasioning actual bodily harm, wilful damage, failure to stop, driving without due care, driving while disqualified, and failure to notify the registrar of a change of address. The central issue in this appeal was whether the magistrate erred in the manner in which he imposed the sentence. The respondent conceded that the magistrate had indeed erred in law by imposing a global penalty for offences charged on separate complaints, which is not permissible under s18A of the Criminal Law (Sentencing) Act 1988. The court had to decide whether to remit the matter back to the magistrate or exercise its discretion to sentence the appellant afresh.

The court exercised its discretion to sentence the appellant afresh. It considered the maximum penalties for each offence, the circumstances surrounding each offence, and the appellant’s background. The court took a particularly serious view of the assault on the appellant’s stepdaughter and the “road rage” incident, imposing a sentence of imprisonment for these offences. For the other offences, the court imposed fines or recorded convictions without penalty. The court determined that the total head sentence should be two years and six months, with a non-parole period of 18 months, back-dated to the date the appellant was taken into custody. The appeal was allowed to substitute the new sentence.

In conclusion, the court substituted the original sentence with a total head sentence of two years and six months, with a non-parole period of 18 months, back-dated to the date of custody. This decision aimed to address the legal error in the original sentencing process while considering the seriousness of the offences and the appellant’s history.

Orders