MULLINS v Police - [2013] SASC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MULLINS v POLICE
[2013] SASC 148
Judgment of The Honourable Justice Peek
20 September 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
The appellant pleaded guilty to ten offences on four Magistrates Court files, being three counts of aggravated assault, three counts of contravene an intervention order, two counts of breach bail, one count of resist police and one count of damage property, all committed on, or in the presence of, the mother of his child and in the context of arguments between them. The Magistrate imposed a single sentence of imprisonment on each file pursuant to s 18A, Criminal Law (Sentencing) Act 1988, made the four sentences cumulative and refused to suspend the sentences.
Held (Peek J, allowing the appeal):
Miscarriage of the sentencing discretion
(1) The Magistrate's sentencing discretion miscarried in respect of each of the four sentences. [14]-[62]
(i) On the first file, the Magistrate erred in finding that the resist police charge merited a sentence of imprisonment. The offence was of the passive, non-cooperation variety and did not involve an assault or attempted assault of police. Accordingly, s 18A, Criminal Law (Sentencing) Act 1988 should not have been invoked. [14]-[17]
(ii) On the second file, the appellant had believed his bail agreement had been varied to permit him to visit his daughter; the Magistrate acknowledged that the Court had made an error. The Magistrate erred in permitting the plea of guilty to stand and its inclusion under s 18A vitiated the sentence. [25]-[30]
(iii) On the third file, the Magistrate erred in sentencing for three offences under s 18A where count 2 had previously been withdrawn. Further, the aggravated assault charge failed to delinate to which incident in a series of three incidents it related. [34]-[44]
(iv) On the fourth file, the appellant was subjected to both double charging and double punishment on counts 1 and 3 and counts 2 and 4. While the two pairs of charges could be charged as alternatives, the appellant should not have been convicted and sentenced for four offences rather than two. [49]-[62]
Re-sentencing
(2) The appellant is re-sentenced to a single term of imprisonment for 50 weeks pursuant to s 18A for four of the offences. Good reason to partially suspend that sentence exists given the appellant's youth, his limited…

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 MULLINS v Police

Details

AGLC: MULLINS v Police [2013] SASC 148
Case: [2013] SASC 148
Decision Date

CaseChat Overview and Summary

The case of Mullins v Police involved an appeal against a sentence imposed by a Magistrate. The appellant, Mullins, was found guilty of four counts of assault, one of which was aggravated due to the use of an offensive weapon and the fact that the victim was his domestic partner. The maximum penalty for this offence was four years imprisonment. The court was tasked with determining the appropriate sentence for the appellant, considering factors such as deterrence, the victim impact statement, the appellant's background, and prospects for rehabilitation.

The court considered the nature of the offences, noting that the fourth offence, while involving an offensive weapon, did not result in physical contact with the victim. The court determined that this offence was less serious than the others committed by the appellant. The court also acknowledged the victim's desire to maintain her relationship with the appellant and her statement that she did not consider herself a victim in the traditional sense. In assessing the appropriate sentence, the court recognised the importance of general and specific deterrence due to the repeated nature of the offending. The court also took into account the appellant's young age, limited criminal history, difficult upbringing, prospects for rehabilitation, and his genuine remorse for his actions.

After considering all relevant factors, the court determined that a sentence of imprisonment was necessary. The court imposed a sentence of 50 weeks imprisonment for the four offences, to commence on 13 May 2013. The court considered whether the sentence should be unsuspended, suspended, or partially suspended. Ultimately, the court decided that the sentence should be partially suspended, with the appellant required to serve a specified period in prison before the remainder of the sentence is suspended. This decision was made in accordance with the provisions of the Criminal Law (Sentencing) Act 1988.

The court's final order was that the appellant Mullins is to serve 50 weeks imprisonment for the four counts of assault, with a specified period to be served in prison before the remainder of the sentence is suspended. This decision reflects the court's consideration of the seriousness of the offences, the need for deterrence, the victim's perspective, and the appellant's background and prospects for rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

The fourth offence in the group is count 1 in the fourth Information on file number AMC-13-6067 concerning the assault on 11 May 2013. This was an aggravated offence, the circumstances of aggravation being that the appellant used an offensive weapon to commit the offence and committed the offence knowing that the victim was his domestic partner. The maximum penalty is four years imprisonment.[21] Although this charge refers to the use of an offensive weapon, the incident involved the appellant picking up a chair in circumstances where Ms S felt threatened by that movement. No contact was made, or intended to be made, with Ms S. I consider that this was a less serious assault than the offences of 20 April 2012 and 20 September 2012 above. I record a conviction.[21] Criminal Law Consolidation Act 1935 ss 5AA(1)(g)(ii), 5AA(1)(b), 20(3)(c).Considerations relevant to the re-sentencing In sentencing the appellant on 7 June 2013, the Magistrate indicated that in her view deterrence was to be a key element in the sentence and observed:[17]The message that this penalty must send not only to particularly yourself but also to other people in the community … is; that if you are going to treat the person you care about the most in a violent and aggressive manner repeatedly on in a situation where they show you and offer you support, then the penalties of the court are going to be harsh and the penalties are going to reflect that aspect of deterrence that is called for. I agree that general and specific deterrence have a part to play here particularly having regard to the repeated nature of the offending. I take into account the contents of the victim impact statement in which Ms S expresses her desire to maintain her relationship with the appellant. Her proclamation that she is not a victim in a certain sense of that term must also be borne in mind. I also take into account that the appellant is young. He has a very limited criminal history prior to this misconduct. His education and upbringing have been difficult. He has real prospects of rehabilitation, especially in light of his commencement of an apprenticeship as a chef. He is genuinely contrite for his past behaviour. However, in all the circumstances, I consider that the above offences do require the imposition of a sentence of imprisonment. I proceed by way of s 18A, Criminal Law (Sentencing) Act 1988, since the offences constitute a course of conduct and a measure of concurrency of sentence is appropriate in all of the present circumstances. I formally impose pursuant to s 18A, Criminal Law (Sentencing) Act 1988 one sentence of 50 weeks imprisonment in relation to the four offences referred to above with such period of imprisonment to commence on 13 May 2013. Should the sentence be unsuspended, suspended or partially suspended? I turn to consider whether the sentence of imprisonment should be unsuspended, suspended or partially suspended. The power of the Court to suspend a sentence is governed by s 38, Criminal Law (Sentencing) Act 1988: 38—Suspension of imprisonment on defendant entering into bond(1) Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—(a) to be of good behaviour; and(b) to comply with the other conditions (if any) of the bond.(2a) However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.(2b) The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.