PAPADOPOULOS v Police - [2008] SASC 165

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PAPADOPOULOS v POLICE
[2008] SASC 165
Judgment of The Honourable Justice David
23 June 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING
Appellant pleaded guilty to two counts of assault - magistrate sentenced appellant to a term of imprisonment of 7 months - whether sentence was manifestly excessive - offences were serious in nature and warranted such a term of imprisonment - whether magistrate erred in declining to exercise his discretion to suspend the sentence - magistrate failed to consider matters personal to the appellant - discretion miscarried.
Held: appeal allowed, appellant re-sentenced.
Criminal Law Consolidation Act 1935 (SA) ss 20, 10, 11, 38(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Magistrates Court Act 1991 (SA) s 42, referred to.
Dinsdale v R (2000) 202 CLR 321, applied.
R v Khem [2005] SASC 178, considered.

PAPADOPOULOS v POLICE
[2008] SASC 165
Magistrates Appeal
DAVID J:
Introduction

The appellant in this matter appeals pursuant to s 42 of the Magistrates Court Act 1991 (SA) against a sentence of seven months imprisonment for one count of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) and one count of assault contrary to s 20(3) of the CLCA.
The learned magistrate imposed sentences of four months imprisonment on each count to be served cumulatively. He then gave a discount for a late plea of guilty and arrived at a sentence of seven months. He also made an order restraining the appellant from approaching or communicating with the victim either directly or indirectly for a period of three years.
The appellant now argues that the sentence of imprisonment was manifestly excessive and that the magistrate erred in not suspending it. There is no appeal against the restraining order.
Background Facts
The appellant was originally charged on Information with:
1Assault causing harm contrary to s 20(4) of the CLCA (count 1). It was alleged the offence was an aggravated one, on the basis that it was committed in company with one or more other persons; and
2Assault contrary to s 20(3) of the CLCA (count 2). It was alleged that the offence was an aggravated one on the basis that it was committed with an intention to dissuade V from taking legal proceedings.
The matter was listed for trial on 13 March 2008, but on the day before trial it was resolved between the parties that the appellant would plead guilty to the offences in their basic rather than aggravated form.
On 13 March 2008 guilty pleas were entered in the Adelaide Magistrates Court and the appellant was sentenced on that day.
The offending which was the subject of count 1 took place at about 4.30 am on Saturday 13 January 2007 when, after being refused entry into a city nightclub, the appellant punched the security guard (whom I will…

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: PAPADOPOULOS v Police [2008] SASC 165
Case: [2008] SASC 165
Decision Date: 23 June 2008

CaseChat Overview and Summary

In the matter of PAPADOPOULOS v Police, the appellant was found guilty of two counts of assault and was sentenced to a term of imprisonment of 7 months by the magistrate. The appellant now argues that the sentence of imprisonment was manifestly excessive and that the magistrate erred in not suspending it. The court was required to determine whether the sentence was manifestly excessive and if the magistrate erred in declining to exercise his discretion to suspend the sentence. The court found that the magistrate failed to consider matters personal to the appellant, leading to a miscarriage of discretion.

The appellant was charged with two counts of assault, one causing harm and the other without harm. The appellant pleaded guilty to the offences in their basic form and was sentenced on the same day. The court considered the nature of the offences, the appellant's membership with the Hells Angels motorcycle gang, and the appellant's intoxication at the time of the incident. The court found that the magistrate erred in not considering matters personal to the appellant, leading to a miscarriage of discretion. The court held that the appeal was allowed, and the appellant was re-sentenced.

The court found that the appellant's membership with the Hells Angels motorcycle gang did not affect the sentence which was to be imposed. However, the court found that the magistrate erred in not considering matters personal to the appellant, leading to a miscarriage of discretion. The court held that the sentence of imprisonment was manifestly excessive and that the magistrate erred in not suspending it. The court re-sentenced the appellant.

The final orders of the court were that the appeal was allowed, the appellant was re-sentenced, and there was no appeal against the restraining order. The court found that the sentence of imprisonment was manifestly excessive and that the magistrate erred in not suspending it. The court held that the magistrate failed to consider matters personal to the appellant, leading to a miscarriage of discretion.

Orders

Orders of the court

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Background

Background to the litigation

The appellant now argues that the sentence of imprisonment was manifestly excessive and that the magistrate erred in not suspending it. There is no appeal against the restraining order.Background Facts The appellant was originally charged on Information with:1Assault causing harm contrary to s 20(4) of the CLCA (count 1). It was alleged the offence was an aggravated one, on the basis that it was committed in company with one or more other persons; and2Assault contrary to s 20(3) of the CLCA (count 2). It was alleged that the offence was an aggravated one on the basis that it was committed with an intention to dissuade V from taking legal proceedings. The matter was listed for trial on 13 March 2008, but on the day before trial it was resolved between the parties that the appellant would plead guilty to the offences in their basic rather than aggravated form. On 13 March 2008 guilty pleas were entered in the Adelaide Magistrates Court and the appellant was sentenced on that day. The offending which was the subject of count 1 took place at about 4.30 am on Saturday 13 January 2007 when, after being refused entry into a city nightclub, the appellant punched the security guard (whom I will refer to as V) who had refused his entry. After the initial punch, other people in the vicinity also punched V several times, but it was not alleged that the appellant was involved in those punches being inflicted. The appellant did, however, again pursue V a short distance and punch him in the face a second time. As a result, V suffered a broken nose. The two punches were the subject of count 1. At about 6.40 pm the next day, after viewing CCTV footage of the incident, the investigating police officer contacted the appellant in order to notify him of the allegation and in order to arrange to interview him in relation to the matter. The offending which is the subject of count 2 took place at approximately 10 pm that evening, Sunday 14 January 2007, when the appellant drove his car slowly past the nightclub at which V was working, made eye contact with V, and pointed his left hand at V making a gesture as though to shoot him with a pistol. This gesture was the subject of count 2. At sentencing there was no dispute that what took place in relation to count 1 was a spur of the moment incident. It was put to the magistrate that the appellant was intoxicated at the time in relation to count 1 and, in relation to count 2, he was not going back to the place of the incident to threaten or dissuade V from proceeding with the matter, but in order to see his partner who worked at the nightclub. The appellant nevertheless accepted that his gesture caused fear in the mind of V. There was some discussion before the magistrate concerning the appellant’s admitted membership with the Hells Angels motorcycle gang. It was put that the knowledge of this fact exacerbated the fear that V must have felt in relation to count 2. However, the magistrate in his sentencing remarks correctly made it clear that such membership did not affect the sentence which was to be imposed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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