Martin James Shaw v R No. SCCRM 94/497 Judgment No. 4979 Number of Pages 3 Criminal Law and Procedure

[1995] SASC 4979

COURT COURT OF CRIMINAL APPEAL IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MATHESON(2) AND MILLHOUSE(3) JJ

CWDS
Criminal law and procedure - Sentence - assault occasioning actual bodily harm - damage to property - assault by appellant and two others on another man - assailants and victim drunk - victim rendered unconscious and left with refrigerator on his body - $450 deliberate damage to victim's house - clot on victim's brain requiring surgery and producing residual effects - extent of injury relevant to penalty - young man with only minor record - sentence 2 years with non-parole period 10 months not excessive - refusal to suspend within sentencing discretion.

HRNG ADELAIDE, 21 February 1995 #DATE 21:2:1995 #ADD 14:3:1995

Counsel for appellant:     Mr E N Mcgee

Solicitors for appellant:    Mcgee and Associates

Counsel for respondent:     Mr S K Mcewen

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against the sentence imposed upon the appellant in the District Court for the crime of assault occasioning actual bodily harm and also for the crime of damage to property.

2. The appellant was charged jointly with two other persons named Ashby and Hewitt on an information alleging as the first count, causing grievous bodily harm and, as the second count, an assault occasioning actual bodily harm and, as the third count, damaging property. They were found not guilty by the jury on the first count, but guilty on the second and third counts.

3. The learned sentencing judge imposed sentences of imprisonment of 2 years on each of the offenders. He fixed non-parole periods in the case of Ashby of 16 months; the non-parole period in the case of Hewitt of 12 months; and a non-parole period in the case of the present appellant of 10 months.

4. The principal contention put by Mr McGee, who appeared for the appellant, is that the sentence should have been suspended. As an alternative he contended that the non-parole period was excessive.

5. The 3 offenders lived in the near vicinity of the victim and they were all known to one another and were accustomed to drinking with one another. There was apparently a transaction relating to a video cabinet between Ashby and the victim. A dispute arose out of that transaction. On the day of this offence the victim and Ashby encountered one another in the street and an incident occurred in consequence of their dispute.

6. That night the 3 offenders, who were drunk, called upon the victim who was also drunk, at his home. Their purpose in going to the victim's home was to confront him regarding the incident which had occurred earlier in the day. An argument occurred and following that argument the 3 offenders combined to assault the victim. He was struck by a number of punches and fell to the floor unconscious. The 3 offenders then set out on what could be described as a rampage of destruction of the victim's house, breaking windows and causing damage to furniture. They then left. When the victim was discovered, a refrigerator was lying across his body.

7. The victim consulted a doctor the next day and was found to have bruising around the left eye and a swollen face and he complained of blurred vision. An appointment was made for him to see a specialist on the following day but he did not keep that appointment. As a result of continuing symptoms however he was examined by a neurosurgeon some 12 days after the assault. He was then found to be suffering from a clot on the brain and surgery to the brain was required. For a time he was paralysed down the left side of the body and there are still some residual consequences of his injuries.

8. The appellant is 23 years of age. He has two prior court appearances, one on 3 April 1991 when he was fined $200 without conviction for the offence of larceny and the other on 1 November 1993 when he was fined $800 for property damage.

9. Mr McGee has stressed that the appellant is a relatively young man and that he does not have a serious previous record. He has stressed that the incident occurred while drinking, between persons who were known to one another. He has also urged the court to be cautious about the weight which it attaches to the extent of the injuries to the victim, and has cautioned the court against drawing an inference from that as to the seriousness of the assault itself.

10. It is true that a court must be cautious in drawing inferences from the nature of the injury sustained as to the degree of violence involved in an assault. It sometimes happens that relatively minor violence can cause quite serious consequences. Nevertheless, it is quite apparent from the injuries which were observed by the doctor on the day following the assault, that this was a substantial assault. Perhaps both the victim and the appellant are unfortunate that the consequences turned out to be as serious as they did. But, although a court must be cautious as to the inferences which it draws from the nature and extent of the injuries, as to the seriousness of the violence which the accused caused, it is nevertheless true that the consequences of an assault are a significant factor in assessing the seriousness of the crime.

11. The crime of which the appellant was convicted is a crime of assault occasioning actual bodily harm. The extent of the bodily harm which it actually caused is a factor which the court must take into account in assessing the seriousness of the offence and therefore the severity of the penalty. The head sentence of two years was a severe head sentence for a crime of this kind. But it is to be remembered that this was an attack by three persons upon a single victim. Moreover, it was a callous attack in that the assailants, after assaulting the victim, set about destruction to his house and then left him apparently in an unconscious condition with a refrigerator on his body. I think that it was inevitable that the learned sentencing judge would, therefore, view the crime seriously. Whilst the sentence of two years is severe, it does not surprise me in the circumstances of this offence.

12. However, Mr McGee's attack is upon the failure of the judge to suspend the sentence. It is true that the appellant is a young man and it is true that he does not have a serious record. Nevertheless, the circumstances of this crime were serious. No doubt because of the lack of a serious record, it would have been open to the judge to have suspended the sentence if he had thought proper to do so. But, the considerations against suspension were substantial arising out of the seriousness of the assault and the callousness of the surrounding circumstances to which I have referred. It was a matter for the discretion of the sentencing judge. He decided that in the circumstances the sentence should not be suspended - and I do not think that this court can say that that decision went beyond the scope of his sentencing discretion.

13. As to the second point argued by Mr McGee, namely, that the non-parole period was excessive, it seems to me that a non-parole period of ten months, having regard to the gravity of the offence and the circumstances which I will mention, was reasonable and that there would be no grounds upon which this court would interfere with that aspect of the sentence.

14. I mention that the sentence and the non-parole period were punishment not only for the crime of assault occasioning actual bodily harm, but also for the not insignificant damage to property which was caused subsequently. The material before the judge indicated that the damage was that all the windows in the victim's home were broken together with certain items of furniture and that the total damage to the house was $450. In my opinion, therefore, the appeal should be dismissed.

15. The order of the court is, appeal dismissed.

JUDGE2 MATHESON J I agree.

JUDGE3 MILLHOUSE J I agree. The learned sentencing judge had a discretion. He exercised it and nothing which Mr McGee has advanced makes me think that he did otherwise than exercise his discretion within proper limits. There is no reason for us to interfere.