Long & Long v Police

[2006] SASC 68

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

LONG & LONG v POLICE

Judgment of The Honourable Justice Bleby (ex tempore)

3 March 2006

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE

Appeal against sentence - Both appellants convicted of common assault - s 39 Criminal Law Consolidation Act 1935 (SA) - Appellants initially charged with aggravated assault but guilty pleas to common assault accepted on basis that appellants acted in excessive self-defence - First appellant also convicted of giving a false name and address to a police officer - s 74(3)(b) of the Summary Offences Act 1953 (SA) - Appellants both sentenced to two months imprisonment to be served immediately - Whether Magistrate entitled to take into account seriousness of injury to victim - Whether Magistrate took into account factual basis of plea - Consideration of other personal circumstances - Sentence within range of Magistrate's sentencing discretion - Within Magistrate's discretion not to suspend sentence - Appeals dismissed.

Criminal Law Consolidation Act 1935 (SA) s 39, s 40; Summary Offences Act 1953 (SA) s 74A(3)(b); Criminal Law (Sentencing) Act 1988 s 38(1), referred to.
R v De Simoni (1981) 147 CLR 383; R v Whittingham (1998) 49 SASR 67, applied.
R v Delphin (2001) 79 SASR 429, considered.

LONG & LONG v POLICE
[2006] SASC 68

Magistrates Appeal: Criminal

1. BLEBY J (ex tempore)     This is an appeal against sentence by both of two persons convicted in the Adelaide Magistrates Court of common assault, contrary to s 39 of the Criminal Law Consolidation Act1935. The appellants were each sentenced to two months imprisonment. In neither case was the sentence suspended.

2. Both men had previously been charged with assault occasioning actual bodily harm, contrary to s 40 of the Criminal Law Consolidation Act. Clifford Benjamin Long, the younger of the two offenders, was also charged with giving the police a false name and address contrary to s 74A(3)(b) of the Summary Offences Act1953. At a hearing on 1 August 2005, the charges of assault occasioning actual bodily harm to which the appellants had previously pleaded not guilty, were amended to common assault, and both appellants then pleaded guilty to that charge. Clifford Benjamin Long also pleaded guilty to the charge of giving a false name and address. Proceedings were then adjourned on two further occasions, and then to 21 November 2005 for the purpose of submissions on penalty.

3. The Magistrate imposed the penalties on that day with some brief sentencing remarks. The submissions that had just been made were obviously fresh in his mind.

4. The maximum penalty for the offence of assault is a term of imprisonment for a period not exceeding two years. The maximum penalty for the offence of giving a false name and address is a fine of $1250 or imprisonment for three months.

5. The appellants appeal on the following grounds:

   1.The sentence of two months was, in all the circumstances, manifestly excessive;

   2.The learned sentencing Magistrate failed to sentence the appellants on the agreed factual basis, namely that they had acted in excessive self‑defence;

   3.The learned sentencing Magistrate erred in taking into account when sentencing a matter of aggravation that constituted the facts of a more serious charge; and

   4.The learned sentencing Magistrate failed to give any or adequate consideration to the question of suspension of the sentence.

6. On 13 June 2003, at approximately 7.50 pm, the victim and his girlfriend were in Gresham Place, Adelaide, walking towards Hindley Street. The appellants were walking east along Hindley Street and crossed Gresham Place. They saw the victim and his girlfriend embracing each other. The appellant Clifford Tony Long shouted an obscenity at the victim and continued walking east along Hindley Street. The victim returned the compliment and the appellants stopped, turned and proceeded to enter Gresham Place approaching the victim and his girlfriend. The appellants and the victim were approaching each other and, indeed, confronted each other in an aggressive manner. A further verbal exchange occurred and the appellant Clifford Tony Long head butted the victim on the head causing him to fall to the ground semi-conscious. While he was on the ground  the appellant Clifford Benjamin Long kicked the victim in the chest. Both appellants then left the scene but were subsequently traced and arrested.

7. The Magistrate noted that the victim was aggrieved at the obscenity  shouted at him and was aggressive towards the two appellants. The victim was affected by alcohol, as were the two appellants. Nevertheless, as the Magistrate observed, the aggression of the victim did not justify the fact that he was then head butted and kicked in the chest when he was on the ground. It was put on behalf of the appellant Clifford Benjamin Long that he had concern for the site of a previous head injury which he had sustained, and the possibility of attack by the victim causing severe injury to his weakened skull.

8. The effect of the injuries on the victim was serious. He suffered a fractured skull and, for some months, diplopia. He was in hospital for some time and suffered permanent loss of hearing to his right ear. His balance has been affected. He continues to have headaches and he has sustained facial scarring.  As a result, he lost his job and feels a lack of security in public places.

9. While the injuries were serious, the pleas of guilty to common assault appear to have been accepted by the prosecution in recognition that there was some genuine belief on the part of the appellants that their conduct was necessary and reasonable for a defensive purpose, but that, in all of the circumstances, it was excessive, thus ameliorating to some degree the seriousness of the assault.  That basis of the plea was accepted by the prosecution, and was put to the Magistrate.

10. Both the appellants are of aboriginal descent. Clifford Benjamin Long was employed at the time and was aged 23. As an adult he had been convicted of a number of driving offences and offences of dishonesty, including assault occasioning actual bodily harm, for which he was imprisoned for one year. In the Youth Court he had been dealt with on a number of occasions for property offences and disorderly behaviour. He is the father of three children to two women, one of whom he proposes to live with.

11. Clifford Tony Long is Clifford Benjamin Long’s uncle. He was aged 37 at the time. He has many convictions for property offences, disorderly behaviour, resisting police, assaulting police and numerous other behavioural, drug and property offences. He has served periods of imprisonment for assault occasioning actual bodily harm and causing actual bodily harm by dangerous driving. Clifford Tony Long had been consistently employed, but was not at the time, as he was the primary carer of a one-year-old daughter. He had a precarious relationship with the girl’s mother.

12. The Magistrate heard detailed submissions from both prosecution and defence counsel before imposing sentence. He had detailed and comprehensive reports, in the case of Clifford Tony Long, from a psychiatrist, and in the case of Clifford Benjamin Long from a psychologist. He also had comprehensive pre‑sentence reports concerning both appellants, along with some favourable references. I have read and taken into account myself the contents of all of those reports in order to understand what was before the Magistrate.

13. The offence of assault covers a wide range of conduct from a mere threat to a range of possible physical injuries. The Magistrate properly regarded the offence as serious. However, in a case such as this, one must be careful not to sentence for circumstances of aggravation which could have been the subject of a more serious charge which has not been alleged, or which, as in this case, had been abandoned.  This common law point is discussed and affirmed in R v De Simoni.[1]  Aggression of that nature by the victim mitigates to some degree the seriousness of the appellant’s action.[2]  That does not mean to say that a sentence for a charge of assault cannot take into account the serious nature of the injury, if it occurs. It is not inappropriate for a sentence of imprisonment to be imposed for a more serious common assault.  That is contemplated by the statutory maximum penalty.

    [1] (1981) 147 CLR 383; see also R v Delphin (2001) 79 SASR 429 at 436-439.

    [2] R  v Whittingham (1998) 49 SASR 67, King CJ at 73.

14. The sentencing remarks of the Magistrate indicate that he took into account not only the serious nature of the injury, but the circumstances of aggression by the victim as I have previously discussed. Had the original charge of assault occasioning actual bodily harm been proceeded with and proved without reference to any aggression on the part of the victim, the penalties would probably, and justifiably, have been much higher. The maximum penalty for the latter offence, that is the offence of assault occasioning actual bodily harm, in the circumstances of this case, is two and a half times higher than that for common assault.[3]   In his brief sentencing remarks it is not apparent that the Magistrate did not make due allowance for the aggression of the victim, and the need on the part of the appellants for some self‑defence.

    [3] Criminal Law Consolidation Act 1935, s 40.

15. Personal and general deterrence were important factors in the sentencing process. Neither appellant was entitled to any credit for his previous good character. Both had significant and relevant previous convictions. In my opinion, a sentence of two months imprisonment was well within the range of the proper exercise of the Magistrate’s sentencing discretion. The appellants have not discharged the onus of demonstrating that the sentencing discretion miscarried in that respect. There are no relevant matters that the Magistrate failed to take into account or to which he gave excessive or undue consideration.

16. The Magistrate was well aware of his ability to direct that the sentence be suspended. That too involved an exercise of his discretion, and the requirement that he be satisfied that good reason existed for suspending the sentence.[4]  The Magistrate had comprehensive information as to the personal circumstances and background of each appellant. He took that into account. He took into account the fact that one of them was employed, recognising the probable effect of incarceration on employment. He took into account the responsibilities that Clifford Tony long had for his young daughter. However, previous attempts at rehabilitation for similar offending had obviously failed in each case.  Taking into account all the relevant circumstances before the Magistrate, it was within his discretion not to suspend the sentence.  I can see no grounds on which this Court can interfere with the exercise of that discretion.

    [4] Criminal Law (Sentencing) Act 1988, s 38(1).

17. Both appeals are dismissed.

18. In accordance with the terms of their respective bail agreements, both appellants will be required to appear before the Magistrate or some other Magistrate in the Adelaide Magistrates Court within 14 days of today to surrender themselves to complete the balance of their sentences.