Mitchell v Police - [2007] SASC 363

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MITCHELL v POLICE
[2007] SASC 363
Judgment of The Honourable Justice Bleby (ex tempore)
8 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence imposed by a Magistrate – appellant pleaded guilty to one count of aggravated assault cause harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) – sentenced to six months immediate imprisonment – victim of assault was the appellant’s wife – victim suffered severe bruising to arms, face and chest and a fractured nose – victim suffered from severe anxiety and depression and committed suicide six months after the assault – assault not an isolated incident but occurred against a background of domestic violence – whether sentence of six months imprisonment manifestly excessive – whether Magistrate erred in failing to suspend sentence in whole or in part – whether Magistrate failed to properly take into account the appellant’s personal circumstances – whether Magistrate adopted an incorrect sentencing procedure – Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 38(2a), referred to.
Papastamatis v Police [2003] SASC 120, applied.
Landers v Police [2002] SASC 185, not followed.
Birch v Fitzgerald (1975) 11 SASR 114, discussed.
R v Wilton (1981) 28 SASR 362; R v Palliaer (1983) 35 SASR 569, considered.

MITCHELL v POLICE
[2007] SASC 363
Magistrates Appeal: Criminal
BLEBY J:
Introduction

This is an appeal against sentence. The appellant was convicted following a plea of guilty of aggravated assault causing harm, contrary to s20(4) of the Criminal Law Consolidation Act1935 (SA) (“the Act”). He was sentenced to six months immediate imprisonment. The offence was an aggravated offence because it was committed against a member of the appellant’s family, namely his wife. The maximum penalty for the offence specified in the Act is imprisonment for four years.
The appellant was sentenced on 22 August 2007. He was granted bail pending the outcome of this appeal on 27 August 2007.
The Facts
At the hearing of his plea of guilty a document entitled ‘Agreed Facts’ was provided to the Magistrate in support of the sentencing submissions. The parties did not deviate from or add to those facts during the course of submissions on penalty. The facts agreed between the parties were as follows:
1.The defendant and the victim had been married for 25 years. Prior to this offence, there had been considerable tension between the defendant and the victim over various matrimonial issues. Tanya Mitchell had reported the defendant to the RSPCA for allegedly kicking the family dog.
2.At about 10pm on Friday 2 February 2007, the victim returned home from working as a nurse at the RAH. The defendant had come home earlier that afternoon and consumed about 8 cans of beer. The defendant approached Tanya to ask her about a letter he…

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 Mitchell v Police

Details

AGLC: Mitchell v Police [2007] SASC 363
Case: [2007] SASC 363
Decision Date: 8 October 2007

CaseChat Overview and Summary

In the matter of Mitchell v Police, the appellant appealed against the sentence imposed by a Magistrate, having pleaded guilty to one count of aggravated assault causing harm under section 20(4) of the Criminal Law Consolidation Act 1935 (SA). The appellant was sentenced to six months of immediate imprisonment for assaulting his wife, resulting in severe bruising, a fractured nose, and subsequent severe anxiety and depression, culminating in the victim’s suicide six months after the assault. The context of the assault was one of ongoing domestic violence. The appeal questioned whether the sentence was manifestly excessive, if the Magistrate erred in not suspending the sentence in whole or in part, if personal circumstances were properly considered, and if the sentencing procedure was correct.

The legal issues before the court included whether the six-month imprisonment sentence was excessively harsh and whether the Magistrate erred in not suspending the sentence, either partially or wholly. The court had to determine if the Magistrate adequately considered the appellant’s personal circumstances and whether the sentencing procedure adhered to legal standards. The court also considered the serious consequences of the assault on the victim and her family, and the broader implications for community safety and deterrence.

The court found that the Magistrate had carefully weighed all relevant factors, including the need for personal and general deterrence, the safety of the community, and the appellant’s prospects for rehabilitation. The court noted the appellant's remorse and contrition, financial responsibilities, and good work record. The Magistrate also considered the profound impact on the victim and her family and the fact that the assault was part of a pattern of domestic violence. The court concluded that the Magistrate's decision was supported by authority and that the sentence was appropriate given the circumstances. Therefore, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was sentenced on 22 August 2007. He was granted bail pending the outcome of this appeal on 27 August 2007.The Facts At the hearing of his plea of guilty a document entitled ‘Agreed Facts’ was provided to the Magistrate in support of the sentencing submissions. The parties did not deviate from or add to those facts during the course of submissions on penalty. The facts agreed between the parties were as follows:1.The defendant and the victim had been married for 25 years. Prior to this offence, there had been considerable tension between the defendant and the victim over various matrimonial issues. Tanya Mitchell had reported the defendant to the RSPCA for allegedly kicking the family dog.2.At about 10pm on Friday 2 February 2007, the victim returned home from working as a nurse at the RAH. The defendant had come home earlier that afternoon and consumed about 8 cans of beer. The defendant approached Tanya to ask her about a letter he had received from the RSPCA alleging that he had been ill-treating their dog. Tanya replied “you needed to be taught a lesson”, which angered the defendant.3.The defendant retired to his bedroom for about 30 minutes. Tanya Mitchell then sat down at the computer to do some research for her work. Shane Mitchell then came into the family room and took hold of the chair in which Tanya was seated and turned her around to face him. He said words to the effect “this is bullshit, Tanya, we need to work matters out.” Tanya responded by saying “you can pay me”. The defendant then lost it saying “I fucking hate you”. He punched her in the face twice before Tanya protected herself with her arms, but the defendant continued to punch and slap her on the arms for about 30 seconds and then came to his senses. I should interpolate here, although it is not part of the agreed facts, that there was evidence that for part of this time the victim was unconscious.4.Tanya left the house, went out to the street and was assisted by a neighbour, who called the police.5.Police attended and the accused was arrested. He admitted that he had punched his wife.6.The injuries to the victim included bruising to the temporal region of her head, face, shoulder, both arms, chest and a nasal fracture.7.This was not an isolated incident but occurred against a background of domestic violence.Prosecution Submissions to the Magistrate During the course of submissions to the Magistrate, photographs were tendered showing the bruising to the victim’s arms, face and left breast and blood on the floor at the place where the assault occurred. Victim impact statements of Tanya Mitchell and Melissa Mitchell, the daughter of the victim and the defendant, who was in her 20’s at the time of the offence, were read aloud. It was submitted by the prosecution that to the extent that those statements were inconsistent with the agreed facts they should be disregarded in that respect. The prosecution submitted that this was a very serious assault which had very serious effects upon both the victim and her daughter, as evidenced by their victim impact statements and by the fact that approximately six months after the assault the victim committed suicide.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Magistrate decided that suspension of the sentence was not warranted in this case. Had his Honour decided that suspension was warranted, he would then, but only then, have had to consider whether the sentence should be suspended in whole or in part in accordance with the provisions of that subsection. The question of s 38(2a) of the Criminal Law (Sentencing) Act therefore did not arise in this case.Conclusion In all the circumstances the appeal is dismissed. In accordance with the conditions of his bail, the appellant must appear before a magistrate at the Elizabeth Magistrates Court within 14 days of today to abide the result of this decision.

Ratio Decidendi

Legal Principle Established

The appellant was aged 46 at the time of the offence. He had been married to the victim for some 25 years and they had two adult children, neither of whom was living at home at the time. At least over the previous four to five years the marriage had been under strain and it had been characterised by angry disputes and physical violence.Relevant Considerations The attack may not have been entirely unprovoked. There was some attempt on the appellant’s part to talk things out, but the attack was entirely without justification. At worst it might be said that the victim made a remark which the appellant regarded as insulting. However, that was no excuse for the brutal and relentless attack which followed. The victim was quite defenceless in the circumstances. She suffered severe bruising to her arms, her face, and her left breast and suffered a fractured nose. Although the appellant may not have realised it at the time, or have intended this effect, it is clear from the victim impact statements of the victim and her daughter that the attack brought about an acute state of insecurity, anxiety and depression in the victim, so much so that she engaged in at least two attempts, one of them ultimately successful, in committing suicide. The consequences of the attack, whether intended or not, were extremely serious. The other relevant and important feature of the case was that this was not an isolated incident. It was committed against a background of ongoing domestic violence. The offending was therefore not out of character or an isolated or one-off incident.The Magistrate’s Reasons The Magistrate in carefully considered reasons weighed up all the relevant factors. He was concerned with personal and, particularly in this case, general deterrence, and issues of the safety of the community. This was not only from the danger of the defendant’s possible conduct but the safety of the community if serious episodes of domestic violence are not adequately punished. In that regard the Magistrate was supported by authority of this Court.[1] [1] Papastamatis v Police [2003] SASC 120 at [32]. The Magistrate was also conscious of the appellant’s prospects of rehabilitation, his remorse and contrition, his financial responsibilities and his good work record. He took note of the testimonials that had been submitted, finding that they were inconsistent, at least to some extent, with the agreed facts before him. The Magistrate had regard to the profound impact on the victim and her family and the fact that this was not an isolated incident. In other words that this was not an isolated attack under provocation. The Magistrate described the attack as ‘entirely unprovoked’. It was certainly not provoked by any physical attack on the appellant by his wife. As I said, it may have been provoked by the remark that she made, but the appellant had clearly been working himself into a state of anger and retribution over the preceding 30 minutes and approached his wife, when he entered the room, in an aggressive manner. There was no suggestion of any psychological or psychiatric factors which might have explained the attack.Whether the Sentence was Excessive