Maslin v Police

[2006] SASC 333

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

MASLIN v POLICE

[2006] SASC 333

Judgment of The Honourable Justice David (ex tempore)

3 November 2006

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against a sentence of seven months imprisonment for one count of assault, one count of assault police, one count of larceny and one count of resisting police – the appellant spat in the eye of the arresting police officer and said that she hoped that the officer got “Hep C” – whether the magistrate placed too much emphasis on the fact that the victim might contract Hepatitis C – whether the sentence was manifestly excessive – whether the magistrate erred in the exercise of his discretion not to suspend the sentence – held, appeal dismissed – the magistrate did not take into account the possibility that the police officer might have contracted Hepatitis C, but rather the fact that the appellant informed the officer that she might – the sentence is at the higher end of the range applicable, however, it is not manifestly excessive – the magistrate did not err in not suspending the sentence.

Criminal Law (Sentencing) Act 1988 s 18A, referred to.

MASLIN v POLICE
[2006] SASC 333

Magistrates Appeal:  Criminal

1. DAVID J.               The appellant in this matter, Brooke Marilyn Maslin, appeals against a sentence of seven months imprisonment for one count of assault, one count of assault police, one count of larceny and one count of resisting a police officer in the execution of her duty.

2. The learned special magistrate imposed one sentence of seven months imprisonment pursuant to s 18A of the Criminal Law (Sentencing Act) 1988 in relation to the counts of assault and assault police. He indicated in his reasons that he would have imposed one month for the assault and six months for the assault police.

3. In relation to the dishonesty offence, which was stealing an amount of food to the value of $14.30, he imposed a term of imprisonment of one month, concurrent upon the seven months sentence.

4. In relation to the charge of resisting the police officer in the execution of her duty, he convicted without penalty.

5. The undisputed facts were that the appellant was walking near the Grand Hotel at Glenelg with a friend when there was an exchange with another woman whereby the appellant lost her temper and assaulted the other woman by grabbing her hair, pulling her to the ground and punching her in the head with a clenched fist. When apprehended by the police, and having been placed in the police car, the appellant spat at a woman police officer and then attempted to kick her and spat at her again. The appellant was grabbing the neck of the police officer and she was bashing her own head against the window of the police car. She said to the police officer, who was a woman, that she hoped that she got “Hep C”, or words to that effect.

6. It is argued by Mr Christoforou, as counsel for the appellant, that the magistrate placed too much emphasis on the fact that the victim, namely the police officer, might contract Hepatitis C. In my view, Mr Christoforou is misconceived in his argument because the magistrate did not take into account the possibility of the police officer contracting Hepatitis C but took into account the fact that she was informed of the fact that she might, adding a rather nasty aspect to the assault.

7. The appellant has previous convictions for assault, namely two counts of assault occasioning actual bodily harm and one count of common assault in July 2002 and common assault in July 1998, and resist arrest in 1996.

8. In considering whether to suspend the appellant’s sentence or not the learned special magistrate took into account her personal circumstances, including the fact that she has a daughter and that she needs psychiatric and psychological help. He found he was unable to suspend the sentence and exercised his discretion accordingly.

9. In my view, the learned special magistrate has not erred in both his approach to his exercise of his discretion and in relation to the period of imprisonment to be imposed. I accept that it might be thought that his sentence is at the higher end of the range applicable, but in my view, is not manifestly excessive and he has not erred in not suspending her sentence, bearing in mind the previous history and the nature of the offences.

10. I dismiss the appeal.