O'NEIL v Police - [2018] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
O'NEIL v POLICE
[2018] SASC 137
Judgment of The Honourable Justice Parker
18 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
This is an appeal against conviction, and an appeal against sentence.
The appellant was convicted at trial of assault under s 20(3) of the Criminal Law Consolidation Act 1935 (SA). A Magistrate sentenced the appellant to imprisonment for six months with an order that he be released after two months upon entering into a bond to be of good behaviour for two years.
In respect of the appeal against conviction, the appellant submits that the Magistrate failed to assess properly the reliability of the evidence of the victim, and also failed to weigh the victim’s account against other contradictory evidence.
In respect of the appeal against sentence, the appellant submits that the order of six months imprisonment with two months to be served was manifestly excessive having regard to the circumstances of the incident and the personal circumstances of the appellant.
Held, per Parker J, dismissing the appeal against conviction and allowing the appeal against sentence:
1. The Magistrate did not err in respect of convicting the appellant of assault, given his acceptance of the victim’s evidence accompanied by the fact that none of the other evidence was inconsistent with the victim’s version of events (at [68]).
2. The head sentence of six months’ imprisonment was outside the range of sentences that were reasonably available to the Magistrate in all the circumstances and thus manifestly excessive (at [87]).
3. The Magistrate erred in not finding that there was good reason to suspend the sentence of imprisonment in its entirety under s 96(1) of the Sentencing Act 2017 (SA) (at [91]-[93]).
Criminal Law Consolidation Act 1935 (SA) s 20; Summary Offences Act 1953 (SA) s 6A; Sentencing Act 2017 (SA) s 96, referred to.
Ratten v R [1972] AC 378; Tazroo v Police [2002] SASC 155; Mason v Police [2012] SASC 22; Fischetto v Police [2011] SASC 24; Sumner v Police [2004] SASC 158; Heubler v Police [2010] SASC 42; Gaston v Police [2004] SASC 222, considered.

O'NEIL v POLICE
[2018] SASC 137
Magistrates Appeal: Criminal

PARKER J: This is an appeal against a conviction for assault under s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and also the sentence imposed upon that conviction. The appellant was sentenced to imprisonment for six months with an order that he be released after two months upon entering into a bond to be of good behaviour for two years. For the reasons that follow, I dismiss the appeal against conviction but uphold the appeal against sentence.
Background
In January 2017 the appellant was drinking with his brother-in-law, Richard Naylon, at a relative’s…

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: [2018] SASC 137
Decision Date: 18 September 2018

CaseChat Overview and Summary

The case of O'NEIL v Police involved an appeal by the appellant against his conviction and sentence. The appellant was convicted of aggravated assault against a police officer, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (CLCA), and the sentence was for six months imprisonment, to be partially suspended. The appeal against the conviction was dismissed, but the appeal against the sentence was upheld, and the sentence was altered. The case was heard in the South Australian Supreme Court. The appellant argued that the evidence did not support the conviction and that the sentence was excessive. The court examined the evidence presented, which included affidavits, CCTV footage, and photographs, and found that the evidence supported the conviction of aggravated assault. The court also considered the appellant's history and family responsibilities in determining the sentence. The court found that the sentence was excessive and altered it to imprisonment for two months, suspended upon the appellant entering into a bond to be of good behaviour for two years.

The key legal issues in the case were whether the evidence supported the conviction of aggravated assault and whether the sentence was appropriate. The court considered the evidence presented and found that it supported the conviction. The court also considered the appellant's history and family responsibilities in determining the sentence. The court found that the sentence was excessive and altered it to a more appropriate sentence. The court noted that a suspended sentence is a very real form of punishment and that the appellant would be liable to be sentenced further should he breach the bond.

The court's reasoning in this case was based on a careful consideration of the evidence presented and the circumstances of the case. The court found that the evidence supported the conviction of aggravated assault and that the sentence was excessive. The court altered the sentence to a more appropriate sentence, taking into account the appellant's history and family responsibilities. The court also noted that a suspended sentence is a very real form of punishment and that the appellant would be liable to be sentenced further should he breach the bond. The court's decision was based on a balanced consideration of the evidence and the circumstances of the case.

The final orders of the court were to dismiss the appeal against conviction, uphold the appeal against sentence, and re-sentence the appellant to imprisonment for two months, suspended upon the appellant entering into a bond to be of good behaviour for two years. The bond was in the sum of $100, and no supervision was ordered in view of the steps that the appellant was taking to deal with his alcohol consumption.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In relation to the second count, the Magistrate found that the prosecution had not proven that SC Daniels suffered harm. The appellant was therefore found not guilty of the alleged offence under s 20(4). However, the appellant was convicted in the alternative of aggravated assault contrary to s 20(3) of the CLCA.The evidence The prosecution tendered affidavits from Senior Constable Karl Downs (SC Downs), Constable Aiden Allt and Constable Vanessa Welfare. Constables Allt and Welfare gave oral evidence as did SC Daniels. The prosecution also tendered two DVD discs. One disc contained footage from the CCTV cameras in the sally port area at the police station. There was no sound recording on that disc. The second disc showed the appellant being interviewed by police. The prosecution also tendered 15 A4 size coloured photographs. The evidence of Constable Allt was that the appellant had been severely affected by the OC spray and was quite agitated. He agreed that persons sprayed with OC spray could become quite agitated and produce increased bodily fluids, including saliva. While Constable Allt had attempted to decontaminate the appellant before he was transported to the police station, he was still suffering from the effects of the spray. When he returned to the sally port after taking another person to the cells, he saw the appellant on the ground with SC Daniels standing over him. He saw blood on the appellant but did not see any blood on SC Daniels. However, SC Daniels told him that the appellant had spat upon him. Constable Welfare stated she had taken photographs 5 to 9 and 11 to 15. She agreed that the appellant was affected by OC spray, was sweating and had blood on his face. She had not seen anything unusual about SC Daniels following his claim that he had been spat upon. SC Daniels stated that one of the prisoners in the cage car was banging the inside of the cage and shouting “you have messed with the wrong black fellow, cunt”. The other prisoner was compliant and quiet. After arriving at the police station, SC Daniels went to get some decontaminating spray. While doing so, he could hear the compliant prisoner shouting “Help. Open the door. He’s bleeding in here”. SC Daniels went to the back of the cage car and yelled “Calm down. I’m here to help”. As he opened the door to the cage, the appellant had his back to him but then turned around. He saw a lot of blood flowing from the appellant’s head. The appellant then said “have that you cunt”. He spat blood at SC Daniels who felt it go into his mouth and eyes and could taste blood. SC Daniels gave extensive evidence about his concerns that he had been contaminated by the appellant’s blood. After the incident he rinsed his eyes and mouth for a few minutes and then dry retched. He rinsed himself in the shower for 20 to 30 minutes. Subsequently, he had three injections and was tested after three and six months for hepatitis B and C and for the HIV virus. He had been extremely worried that he may have contracted a disease. In fact, he did not contract a disease.

Decision

Reasons for decision

I take the opportunity to repeat the observation made by White J in Sumner v Police that “[a] suspended sentence is a very real form of punishment.”[12] Because a term of the suspension will be that the appellant enter a bond, he will be liable to be sentenced further should he breach the bond.[12] [2004] SASC 158.Conclusion I dismiss the appeal against conviction. I uphold the appeal against sentence. I will re-sentence the appellant to imprisonment for two months and order that the sentence be suspended upon the appellant entering into a bond to be of good behaviour for two years. The bond will be in the sum of $100. In view of the steps that the appellant is taking to deal with his alcohol consumption, I do not order any supervision.

Ratio Decidendi

Legal Principle Established

The respondent also submits that the sentence of imprisonment for six months imposed by the Magistrate was appropriate, particularly in view of the fact that the appellant was only required to serve two months in custody. In determining the sentence the Magistrate had regard to all of the circumstances, the appellant’s history and his family responsibilities. The latter considerations led the Magistrate to partially suspend the sentence. Consideration This is an appeal by way of rehearing. The function of the Court when conducting an appeal by rehearing was clearly stated by Lander J in Tazroo v Police:[3]Because it is a re-hearing and because it is an appeal from the Magistrates Court the Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the magistrate together with such other evidence as it might admit.It is the duty of this Court to make up its own mind, after giving due weight to the magistrate’s advantage in seeing and hearing the witnesses, and of course after giving weight to any findings on credibility which depend largely or on part on demeanour.[3] [2002] SASC 155 at [18]-[19]. The key point of the appellant’s submissions is that the account of the spitting incident given by SC Daniels is not consistent with the other evidence. I do not accept that contention. While much of the evidence given by SC Daniels was not directly supported by the other evidence, his evidence was not inconsistent with the CCTV footage and the oral evidence given by other witnesses. It is correct that neither Constable Allt nor Constable Welfare saw the appellant spit at SC Daniels. However, that is explained by the fact that they were not in the sally port area at the time SC Daniels alleges he was spat upon by the appellant. They did not enter that area until after SC Daniels took the appellant to the ground. Although the two constables did not see blood on the face of SC Daniels, I accept the correctness of the respondent’s submission that this consideration would only be relevant if the amount of blood was of a quantity that would be immediately visible. I also note from the CCTV footage that by the time the two constables arrived on the scene some seconds had elapsed and the appellant and SC Daniels were struggling on the floor. I also accept the correctness of the respondent’s submission that the failure of the two constables to see SC Daniels squint was not material as there was no suggestion by him that he had squinted. I take the same view of the appellant’s complaint that neither of the two constables had seen SC Daniels hyperventilate. His evidence of hyperventilation clearly referred to a time subsequent to the events in the sally port. The appellant contends that the Magistrate erred in finding that the spots on the shirt of SC Daniels were blood in the absence of any forensic evidence. The photographs clearly depict several small spots of a dark red substance on the shirt. In view of the evidence that the appellant was bleeding from head wounds and the evidence of Mr Naylon that the appellant was spitting blood and saliva, combined with the evidence of SC Daniels that he was spat upon, I consider that the Magistrate did not err in finding beyond reasonable doubt that the substance on the shirt was the blood of the appellant. Forensic analysis was not necessary. In my view, the significant issue is not so much whether the substance was blood or not but whether it was deliberately or inadvertently deposited on the shirt and face of SC Daniels.