PANCIONE v Police

[2010] SASC 284

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

PANCIONE v POLICE

[2010] SASC 284

Judgment of The Honourable Justice Vanstone

1 October 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - POINT NOT RAISED IN COURT BELOW

Appellant pleaded guilty to two counts of aggravated assault - immediate custodial sentence of four months imposed - appeal on basis that sentence manifestly excessive, that magistrate erred in declining to suspend and erred in not providing opportunity to appellant to seek legal advice - relevant information not before magistrate.

Held:  appeal allowed - sentencing process miscarried - sentence of imprisonment and other orders of magistrate set aside - matter remitted to Magistrates Court for rehearing according to law.

Criminal Law Consolidation Act 1935 (SA), s 20(3), s 20(4); Criminal Law (Sentencing) Act 1988 (SA), s 18A, s 38, referred to.

PANCIONE v POLICE
[2010] SASC 284

Magistrates Appeal

1. VANSTONE J:     The appellant was charged with two counts of aggravated assault, committed on consecutive days, upon his former de facto wife.  He pleaded guilty at an early stage.  He later came before a different magistrate for imposition of penalty.  He was not represented by a solicitor.  It appears that he did not realise the seriousness of his position and, in his interchanges with the bench, he did not advance his cause.  After a short hearing the magistrate imposed a sentence of imprisonment.  The only remarks on sentence were as follows:

   You are convicted and pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 you will be imprisoned for a period of four months commencing forthwith. I have considered suspending that sentence and I find no good reason for doing so.

2. The grounds of appeal are that the sentence was manifestly excessive, that the magistrate erred in declining to suspend the sentence and that the magistrate erred in failing to provide opportunity to the appellant to seek legal representation, once the magistrate had determined to impose a sentence of imprisonment.

3. The first offence was charged under s 20(3) of the Criminal Law Consolidation Act 1935 (CLCA), attracting a maximum sentence of three years imprisonment. Count 2 invoked s 20(4) of the CLCA and bore a maximum penalty of four years imprisonment.

4. The prosecution case was that the first incident occurred on an occasion when the appellant attended at the home of his former wife to return their children to her custody.  There was an argument between them and the appellant spat in her face.  On the following day, at noon, the appellant again went to the house and there was an argument about a trip which the victim planned to undertake on that day with the children.  According to the victim, having talked to her through the back door, the appellant put his foot in the door so that it would not close, abused her and then forced the door open and punched her in the face, causing injury.

5. During the interchange with the sentencing magistrate, the appellant put that he punched the victim only after she had punched him in the face.  Whether that amounted to a claim that he acted defensively, or, more likely, in retaliation, was not explored.  There was no mention of the possibility of a dispute on the facts.

6. Towards the end of the interchange, the magistrate asked the appellant whether he wished to say anything more about the offences or about himself.  The appellant declined.

7. The police prosecutor had informed the magistrate that the appellant had “no relevant prior offences”.  The record of convictions which has been provided to me shows that the appellant has convictions for driving offences, including driving unregistered and uninsured, and for failing to furnish documents relating to taxation.  These matters were dealt with by way of fines and licence disqualification.  I have been told that the appellant is 39 years of age.  He has always had employment.  He is qualified as a gyprocker and sheetmetal engineer.  There is a letter before me from the human resources manager of a well-known construction firm attesting to the quality of the appellant’s work as a site manager, which involves supervising a number of construction workers.  I have also been told that the appellant pays a substantial amount of child maintenance, both for the two children of his relationship with the victim, and for an older daughter from a previous union.

8. If any of this highly relevant information was placed before the magistrate, he did not choose to mention it when he imposed the sentence.  Nor did the magistrate mention the fact that the appellant pleaded guilty to the offences at a very early stage.  It can be seen from the remarks set out in full above, that the magistrate made no reference to having given any credit for the early pleas of guilty.  A further matter of significance not mentioned in the remarks was the question of the dispute over the facts underlying the second charge.  Since the prosecution did not, apparently, choose to call evidence in support of the allegations put by it, the magistrate was obliged to accept the statement of the appellant as to the circumstances of the offence.  Whether he did so cannot be deduced from his remarks.

9. These matters only highlight the central complaint made by the appellant, that, for reasons which are partly his fault, he was sentenced to an immediate term of imprisonment, without any appropriate exploration of whether a penalty not involving imprisonment might have been sufficient, or, if imprisonment was required, whether the term could have been suspended.

10. In my view the sentencing process has miscarried and the sentence should be set aside.  I propose to remit the matter to the Magistrates Court so that the Court may be fully apprised of, and hopefully assisted by counsel in evaluating, these matters and may deliver reasons for penalty sufficient to facilitate an understanding of the sentencing process.

11. The orders are:

    1.     appeal allowed;

    2.     sentence of imprisonment and other orders of the magistrate set aside;

    3.matter to be remitted to the Magistrates Court to be dealt with according to law.