Musico v Police - [2003] SASC 26

MUSICO v POLICE
[2003] SASC 26
Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged by a police officer with assault occasioning actual bodily harm. He denied the charge and, after a trial before a learned Magistrate, was found guilty, convicted and sentenced to imprisonment for 16 months. He appeals against both the conviction and the sentence.
It was alleged that the offence occurred on 2^nd April 2001 at the Mount Gambier Prison when the appellant assaulted Mr Savutakis. Both men are long term prisoners at the gaol. The appellant is serving a life sentence for the murder of the parents of his wife. He has been in prison since 7^th September 1989 when he was arrested.
The offence is alleged to have occurred in the kitchen at the prison at about 6.00 pm. Mr Savutakis was working in the kitchen alone. According to him, the appellant entered the kitchen and attacked him by hitting him several times on the head and body with a rolling pin. He fell to the ground and the appellant continued to hit him on the legs with the rolling pin and also a heavy steel dough mixer hook. It was alleged that in consequence of the attack he suffered a gash on the back of his head which required sutures, an injury to his knee and bruises on his arms, legs and ankles. He claimed that the attack was unprovoked. According to the appellant, Mr Savutakis attacked him as he entered the kitchen. He used the rolling pin to fend him off and he did not cause any injuries to him.
The learned Magistrate accepted that it was not in dispute that for about two years before the incident the two men had been friends. They had worked together in the kitchen and for a time had lived together in the cottage area of the prison which provided better privileges for well-behaved prisoners. Their friendship cooled in the few months leading up to the incident and Mr Savutakis became critical of the appellant’s work in the kitchen. On 2^nd April 2001 the appellant was relieved of his position in the kitchen. In consequence he lost his privileged accommodation in the cottages and had to move back into the general cell area of the prison. Mr Savutakis suggested that the appellant was resentful and when the appellant struck him he said words to the effect, “You pinched my job again”.
The appellant acknowledged that for several weeks preceding the incident he felt that the kitchen supervisor was not happy with his work and other kitchen workers, including Mr Savutakis, did not want him in the kitchen. Although the appellant acknowledged that upon leaving his position in the kitchen he had to move back to a cell which was not clean, he denied that he held a grudge against, or resented, Mr Savutakis.
Immediately after the incident three correctional officers went to the kitchen, Messrs Hill, Bridges and Diedrich. Mr Hill and Mr…

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

AGLC: Musico v Police [2003] SASC 26
Case: [2003] SASC 26
Decision Date: 7 February 2003

CaseChat Overview and Summary

In Musico v Police, the appellant, serving a life sentence for murder, appealed against his conviction and sentence for assaulting a fellow prisoner, Mr Savutakis, at the Mount Gambier Prison. The appellant argued that the learned Magistrate erred in admitting hearsay evidence and questioning him about his failure to give an account of the incident to police. The court found that while the evidence should not have been led, it did not compromise the trial. The court also found that the questions asked by the learned Magistrate were objectionable and should not have been asked. However, the court concluded that these errors did not affect the result of the trial.

The appeal against sentence was allowed because the learned Magistrate erred in ordering that the sentence be served cumulatively upon the life sentence and in extending the non-parole period. The court found that the sentence of imprisonment for 16 months was manifestly excessive and sentenced the appellant to imprisonment for nine months. The court also found that the extension of the non-parole period must be considered by the Court in the exercise of its criminal jurisdiction.

Orders