Mason v Police - [2012] SASC 22

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MASON v POLICE
[2012] SASC 22
Judgment of The Honourable Justice Kelly (ex tempore)
17 February 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Appeal against sentence – appellant pleaded guilty to three counts of basic assault and one count of aggravated assault under s 20(3) of the Criminal Law Consolidation Act 1935 (SA) – Magistrate sentenced the appellant to four months imprisonment and declined to suspend the sentence – whether the Magistrate erred in not suspending the sentence either wholly or partially – whether the Magistrate failed to consider the question of partial suspension – whether the Magistrate failed to provide adequate reasons.
Held: appeal dismissed – Magistrate considered all relevant factors when deciding not to suspend the term of imprisonment – implicit in the Magistrate’s remarks that her consideration of the question whether to suspend the sentence included both full and partial suspension of the sentence – no error demonstrated – no basis for appellant court to interfere.
Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Crispin v Police [2009] SASC 210; Carter v Police [2011] SASC 199; Heubler v Police [2010] SASC 42; Fischetto v Police [2011] SASC 24; Sumner v Police [2004] SASC 158, considered.

MASON v POLICE
[2012] SASC 22
Magistrates Appeal: Criminal

KELLY J (ex tempore):The appellant in this matter pleaded guilty in the Holden Hill Magistrates Court to one count of aggravated assault and three counts of basic assault.
The charges arose out of one incident which occurred at the Gilles Plains shopping centre on 22 August 2010. On that date the appellant went to the shopping centre and parked in a disabled car park. The victim of the first count of aggravated assault observed Ms Mason drive into the car park and made a provocative comment to Ms Mason about that fact. The appellant took exception to the comments and spat at the victim and then pushed a chair at her. The chair did not make contact with the victim.
The second victim, an employee at the supermarket of the shopping centre, was called to the front of the store where he was confronted by a group of Aboriginal people yelling at staff members. He approached the group which included the appellant and asked them to leave. The appellant spat on the employee and the spittle landed on his jumper.
The victim of count 3 was a security guard working at the shopping centre who was called to assist with the removal of the appellant from the supermarket. Eventually he tried to restrain the appellant until the…

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.

Continue reading Mason v Police

Details

AGLC: Mason v Police [2012] SASC 22
Case: [2012] SASC 22
Decision Date: 17 February 2012

CaseChat Overview and Summary

Mason appealed against his sentence following a conviction for multiple counts of assault. He had pleaded guilty to three counts of basic assault and one count of aggravated assault. The magistrate sentenced him to four months imprisonment but declined to suspend the sentence. The appeal focused on whether the magistrate erred in not suspending the sentence either wholly or partially, and whether the magistrate failed to consider the question of partial suspension or to provide adequate reasons.

The court examined the magistrate's decision-making process and noted that the magistrate had considered all relevant factors in determining the sentence. The court found that it was implicit in the magistrate's remarks that she had considered both full and partial suspension of the sentence. The court concluded that no error was demonstrated in the magistrate's approach and found no basis for the appeal court to interfere with the sentence.

The appeal was dismissed. The magistrate had considered all relevant factors when deciding not to suspend the term of imprisonment. The court found that the magistrate's remarks demonstrated that she had considered both full and partial suspension of the sentence. The court also found that the magistrate's reasons were adequate, and that there was no basis for the appeal court to interfere with the sentence.

Orders