McQuade v Police - [1999] SASC 277

McQUADE V POLICE

[1999] SASC 277

Magistrate’s Appeals

MARTIN J. (Ex tempore) The appellant, who is 27 years of age and was unrepresented, pleaded guilty to charges of assault occasioning actual bodily harm, common assault and damaging household furniture. In respect of the offence of assault occasioning actual bodily harm, which was committed on 30 June 1998, the magistrate imposed a penalty of 100 hours community service, to be performed within twelve months. Fees and costs totalling $132 were also imposed. On the other two charges, which were committed on 19 July 1998, his Honour imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, that the defendant perform 100 hours of community service within six months. Fees and costs totalling $174 were also imposed.
The sentence was imposed on 12 April 1998. The notice of appeal was filed on 24 May 1999. The Crown did not oppose an extension of time within which to appeal and time was extended accordingly.
In essence the ground of appeal against sentence complains that the magistrate erred in having insufficient regard to the appellant's drug use and psychological functioning, and that he erred in requiring community service, while not ordering that the appellant be subject to some form of supervision with counselling and treatment. In addition, it is said that there was an error in the sentencing process because the magistrate failed to advise the appellant of his right to apply to the magistrate for the exercise of the discretion not to record a conviction.
All offences arose in the context of a difficult and strained family situation. Over a period of time, the relationship between the appellant and his parents had deteriorated. The appellant was experiencing considerable difficulty in controlling his anger.
On 30 June 1998, the appellant had a disagreement with his brother which became physical. In a fit of anger he began to damage a vehicle with the handle of a hydraulic jack and swung the handle at his brother who put up his left arm to protect himself. The handle struck the victim's wrist and chipped a bone. That action is the basis of the offence of the assault occasioning actual bodily harm.
On 19 July 1998, at the family home, an argument developed between the appellant and his father. The appellant left the home, but entered a cottage on the property and damaged an old washing machine in the cottage. There were further words between the appellant and his father at the cottage. Later the appellant returned to the home in an angry state of mind and damaged more property. He also picked up a broom handle and struck his father on the leg with the handle. A later inspection of the cottage disclosed further damage to the cottage and property within it. The total damage was approximately $730.
After the appellant had pleaded guilty and had been remanded while a pre-sentence report was obtained, the appellant's father wrote to the magistrate and to…

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.

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Details

Case: [1999] SASC 277
Decision Date: 7 July 1999

CaseChat Overview and Summary

The case of McQuade v Police involved the appellant, who pleaded guilty to charges of assault occasioning actual bodily harm, common assault, and damaging household furniture. The magistrate imposed a penalty of community service and fees on the appellant. The appellant appealed the sentence, arguing that the magistrate failed to consider his drug use, psychological functioning, and did not order supervision with counselling and treatment. The appellant also claimed that he was not advised of his right to apply for the exercise of the discretion not to record a conviction. The court found that the magistrate did not adequately consider the appellant's drug use and psychological functioning, and failed to advise the appellant of his right to apply for the exercise of the discretion not to record a conviction. The court set aside the penalty imposed and ordered that the appellant be discharged without recording a conviction on condition that he enter into a bond under s 39 of the Sentencing Act. The court also imposed conditions for the probation officer to supervise the appellant and direct him to undergo assessment, counselling and treatment for drug and alcohol abuse and anger management. Finally, the court ordered the appellant to perform 50 hours of community service within 12 months of entering into the bond. The court directed that the appellant report to the department for Correctional Services, Adelaide Community's Correctional Centre, 181 Flinders Street, Adelaide, no later than two working days after entering into the bond unless, within that period, he receives a notice from the director or CEO to the contrary. In the exercise of the court's discretion, the respondent was ordered to pay the appellant's costs fixed at $200.

Orders