Mather v Police No. Scciv-02-1262

[2002] SASC 364

MATHER  v  POLICE
[2002] SASC 364

Magistrates Appeals:  Criminal (ex tempore)

1. DOYLE CJ:            This is an appeal against sentence. The facts relating to the submission of the offence can be stated briefly.

2. The offence occurred on 1 May 2002 at the house of a friend of the appellant’s girlfriend. Prior to his arrival at the house, the appellant had consumed alcohol to excess and was intoxicated.

3. Upon entering the house he approached the victim and another person and demanded to fight them. Without further warning he head butted the victim in the mouth, injuring the victim’s teeth, gum and lip. The appellant was set upon by friends of the victim and was, himself, injured. The victim’s friends also damaged the appellant’s motor vehicle.

4. The appellant pleaded guilty to one count of assault occasioning actual bodily harm. The maximum punishment for this offence is imprisonment for five years.

5. The appellant offered no real explanation for his offending other than his intoxication. The Magistrate sentenced the appellant to a period of 11 months imprisonment and ordered that he be released after serving a period of four months in custody on condition that he enter into a bond for the remainder of the term of the head sentence. The Magistrate declined to suspend the balance of the sentence.

6. The Magistrate reduced the penalty that he would otherwise have imposed by 10% for the appellant’s early plea of guilty. He noted the appellant’s apology to the victim and accepted that the appellant was contrite for his offending. The Magistrate took into account that the appellant was, himself, assaulted and injured after he had assaulted the victim. It is not apparent what use the Magistrate made of those facts, but whatever use he made of them was presumably favourable to the appellant.

7. The Magistrate also took account of the appellant’s previous offending. In 1996 the appellant appeared in the Adelaide Children’s Court for the offence of assault. In 2001 he was convicted in the Magistrates Court of assaulting a family member. On one or both of those occasions it appears that the appellant was intoxicated and, on that basis, it appears that he has a problem with drinking to excess and behaving violently when intoxicated.

8. The Magistrate called the offence “a cowardly attack” made “for no reason”. The appellant’s intoxication was probably the cause of the offending, but that did not excuse it.

9. The appellant’s previous record of offences of the same sort weighed heavily in the Magistrate’s decision not to suspend the sentence. He viewed a period of imprisonment as the only alternative realistically available in the circumstances. The conditions of the bond on which the appellant is to be released after serving four months of the 11 month sentence include that he is to undergo assessment, counselling and treatment for any anger management problem or alcohol abuse problem from which he may be regarded as suffering.

10. In addition to the early guilty plea and the apology to the victim, other factors in the appellant’s favour are referred to in an affidavit deposed to by the appellant’s solicitor, Mr Olds. I take it that the substance of these factors was put to the Magistrate in oral submissions.  On the day of the offence the appellant was distressed by the death of his pet dog. That may have been the reason for his excessive drinking that day. He is a young man, about 21 or 22 years of age at the time of the offence. He has a stable work history since leaving school in year 11. He lives at home with his parents. He was cooperative with the police when arrested and, as I have indicated, he pleaded guilty at an early stage. The appellant has sought help from a psychologist from the Southern Vales Community Centre out of concern about his own behaviour.

11. I deal first with the reduction for the plea of guilty. The appellant complains that the reduction of 10% for the early plea of guilty is inadequate. I do not agree, although I regard it as low. This is a matter in relation to which there is scope for differing views. A factor that often results in a lesser reduction is the strength of the prosecution case, and here that case seems to have been a very strong one. While the reduction is rather low, in my opinion it is not so low as to indicate error. As far as I am aware, the courts of this State have never said in categorical terms that in a case like this a reduction must be more than 10%. Nor do I agree that the Magistrate relied upon the appellant’s previous convictions in deciding on the reduction for the plea of guilty. The Magistrate’s reasons might be read as indicating that he did so, but I consider that this is unlikely to be what the Magistrate did and, to my mind, on a fair reading of his reasons, he in fact indicates the contrary.

12. I turn to the sentence of imprisonment. I consider that the Magistrate did not err in deciding to impose a term of imprisonment. This was a serious assault with serious consequences for the victim. It was completely unprovoked. It called for a deterrent penalty. The appellant’s record does suggest the need for personal deterrence. It was open to the Magistrate to take the course that he did.

13. I turn now to the decision to suspend the sentence, but only partially. Although the Magistrate did not refer expressly to all of the above matters, I am satisfied on the basis of his remarks that he took into account all of the relevant factors when deciding whether or not to suspend the sentence wholly or in part. The Magistrate clearly gave particular weight to the appellant’s previous record, but there is no indication that he allowed that matter to override his consideration of other relevant factors. As I said a moment ago, the offence was a serious one. An unprovoked attack that injures another person must be regarded seriously. I agree with the Magistrate that intoxication offers no real excuse, and I agree with the Magistrate that the appellant’s previous record is a factor against the plea for suspension. It is appropriate to bring home to the appellant that the law does not tolerate such conduct. These matters are all relevant to the issue.

14. On the other hand, I recognise that there are strong mitigating factors in the appellant’s favour. The Magistrate probably took account of them by the reduction of that part of the sentence that required immediate imprisonment to four months. I agree also that a suspended sentence is a real punishment and that rehabilitation is in the public interest and always to be considered, but the decision on how to balance the factors for and against suspending the sentence of imprisonment wholly is one to be made by the sentencing judge or Magistrate.

15. This court can intervene only if there is an error. It is not for this court to repeat the initial balancing process. I do regard the case as a difficult one. The appellant’s youth and his early plea and his good work record are all factors that argued quite strongly for suspension. On the other hand, as I pointed out, there are factors pointing the other way.

16. In all the circumstances, while recognising that the Magistrate’s final decision resulted in a heavy penalty, I am unable to find any error in the Magistrate’s approach or in his decision.

17. I add that I consider it appropriate that the Magistrate impose, as he did, conditions on the bond that will see that the appellant is given help to address his problems with alcohol and violence.

18. As I have said, the role of the appeal court in such a case is not to determine for itself what sentence it would have imposed or whether it would have suspended the sentence, but rather to determine whether there has been an error in the Magistrate’s sentencing discretion, and while I regard the sentence as a heavy one, I cannot say that the Magistrate erred. Accordingly, I am obliged to dismiss the appeal and so order.