MITCHELL v POLICE

[2007] SASC 419

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

MITCHELL v POLICE

[2007] SASC 419

Judgment of The Full Court

(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice Layton)

23 November 2007

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

Application for permission to appeal in private - permission refused.

Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Criminal Law Consolidation Act 1935 (SA) s 20(4); Supreme Court Civil Rules 2006 r 291(3)(b), referred to.

MITCHELL v POLICE
[2007] SASC 419

Application for permission to appeal

FULL COURT:  Duggan, Sulan and Layton JJ

1. THE COURT:      This is an application for permission to appeal to the Full Court.

2. The decision the subject of the application was made by a judge on an appeal against sentence imposed in the Magistrates Court.  An appeal to the Full Court in these circumstances lies only with the permission of the court (Supreme Court Act 1935 (SA) s 50(4)(a)(ii)).

3. The Full Court has determined to decide the application without hearing oral argument: r 291(3)(b) Supreme Court Civil Rules 2006.

4. The court has considered the summary of argument filed on behalf of the applicant, the supporting affidavit, the sentencing remarks of the magistrate and the reasons of the single judge for dismissing the appeal.

5. The applicant pleaded guilty in the Magistrates Court to a charge of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).  The offence was committed against his wife.  He was sentenced to imprisonment for six months.

6. The proposed grounds of appeal to the Full Court state that the period of imprisonment was manifestly excessive; that the sentence should have been suspended; and that there were other errors in the sentencing process.

7. The assault was serious and resulted in extensive injuries.  It was not an isolated incident: nor did it occur spontaneously.  The violence lasted for approximately 30 seconds.

8. Although the applicant had no previous convictions for assault and his employment history was good, it could not be reasonably argued that the sentence was outside the range appropriate for an assault of this nature.  Furthermore, the personal circumstances of the applicant summarised in the notice of appeal in the summary of argument, would not necessarily require that the sentence be suspended.

9. Some specific arguments which have been raised require comment.

10. Ground 2(a) of the proposed grounds of appeal states that the magistrate and judge appealed from erred in appearing to take into account the fact that the victim committed suicide five or six months after the assault.  The magistrate was told that the victim became depressed after the incident and that her mental condition deteriorated from the time of the assault to the time of her suicide.  It was open to the magistrate to have regard to the fact that the victim’s mental health deteriorated after the assault and led to her eventual suicide.  It is clear that the assault had some effect upon her mental health.  This circumstance was relevant to sentencing.

11. Ground 2(b) asserts that the magistrate and the judge appealed from misconceived the facts which occurred immediately prior to the offending when it was alleged that the applicant made genuine attempts to discuss the matrimonial problems being experienced by him and the victim and that he was rebuffed by the victim in strong terms.  In the view of the court there was no such misconception.  The behaviour of the applicant was not provoked in any relevant sense and he assaulted the victim after he returned to the room she was in following an interval of approximately 30 minutes.  It is apparent that he lost his temper when she did not respond positively to his request to work matters out.

12. The court was not required to give reasons why alternatives such as partial suspension of the sentence were not utilised (ground 2(c)).

13. It is stated in ground 2(d) that the learned judge appeared to take into account the victim impact statement which alleged that the victim was unconscious during the assault, whereas this was not an agreed fact.

14. This assertion was not challenged, nor was it inconsistent with the agreed facts.  The court was not restricted to the agreed facts.

15. Finally, it is asserted that the magistrate erred in the sentencing process by considering the issue of suspension before stating the term of imprisonment he had in mind.  We agree with the opinion of the single judge that the failure to observe this process did not cause any miscarriage of justice.

16. The court is of the view that the appeal has no reasonable prospects of success.

17. The application for permission to appeal is refused.