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

1. 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.

2. 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.

3. 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

4. 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.

5. 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.

6. On 13 March 2008 guilty pleas were entered in the Adelaide Magistrates Court and the appellant was sentenced on that day. 

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. There was no dispute that the appellant had no relevant prior convictions.  It was put to the magistrate that the appellant was aged 29 at the time of the offence and had a good working record, having worked as a real estate agent for over ten years.  Since that employment had ceased due to contact between the police and his employer in relation to his membership with the Hells Angels, it was put that the appellant maintained employment renovating houses with his brother and father.

13. The magistrate considered the matters referred to in s 11 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) placing emphasis on the fact that the appellant had shown a tendency to violence towards other persons and that the circumstances of the offences were very serious. He acknowledged the lack of relevant antecedents on the part of the appellant but proceeded to sentence him (presumably pursuant to s 18A of the Sentencing Act) to a head sentence of seven months imprisonment, having allowed a small deduction for his late pleas of guilty. He declined to suspend the sentence.

    Appeal

14. The appellant now argues that the sentence was manifestly excessive.  The respondent argues to the contrary and points out that the maximum penalty for count 1 is three years and for count 2, two years.  He submitted that the starting point of four months in relation to each count was within the scope of the magistrate’s discretion and therefore this Court should not interfere.

15. Although the basis of the plea in relation to count 1 does not include any form of aggravation because of the fact that other people were involved, the offending is nevertheless very serious.  It amounted to two unprovoked punches being inflicted upon a person performing a legitimate work function, causing significant damage in a situation where crowd violence was likely to erupt.  Such behaviour in a charged atmosphere of nightclubs and alcohol late at night cannot be condoned, and the magistrate rightly took a very serious view of the offending.  Similarly, although the basis of the plea in relation to count 2 does not include any form of aggravation because of an intention on the part of the appellant to dissuade V from taking legal proceedings, the offending is very serious.  It too amounted to an unprovoked gesture causing significant fear in the mind of V that should he pursue his allegation in relation to Count 1, there would be repercussions.  As mentioned earlier, the magistrate had regard to all relevant matters in relation to imprisonment. The length of imprisonment is certainly not so long that this Court could say that it was excessive.  I reject that ground of appeal. 

16. The appellant also argues that the magistrate erred in not suspending, pursuant to s 38(1) of the Sentencing Act, the term of imprisonment he imposed. This ground of appeal has caused me great concern. The offending was serious for the reasons I have already mentioned, but the appellant’s argument that the magistrate did not carefully weigh up the appellant’s personal circumstances in considering his discretion whether to suspend the sentence has some merit. In his sentencing remarks the magistrate said:

    I now get to the issue of whether I should suspend the sentence of imprisonment.  I return to the fact that you are a ‘Hells Angel’.  To me that is not a matter of great influence.  That is a club that is much criticised but it is not an illegal club and people can associate with those whom they want to associate with without being punished for association.  Punishment for association is not something that I should apply and I will not.

    What I say is that whether you are a ‘Hells Angel’, or just a citizen by yourself, if you go to a nightclub and you do what you have done, namely you have punched a bouncer who has done something legitimate in his function and he has done nothing to provoke you, then you go back and you punch him again and then you drive by the next day and make a threatening gesture at him, then if I do not impose an immediate term of imprisonment rather than suspending it, is not in my view a sufficient deterrent either to you or to others.  And for those reasons I am not suspending it.  You will do the seven months.

17. There appears to be no reference to the fact that the appellant had no relevant criminal history, nor to the fact that he had a good working record.  In Dinsdale v R[1] Kirby J, with whom Gaudron and Gummow JJ agreed, said:

    [T]he same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term.  This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender…

    [1] (2000) 202 CLR 321 at 348

18. Though there are instances where the deterrent purpose of the punishment takes priority over other factors (see R v Khem[2]), the magistrate’s reasons for not suspending the sentence do not appear to counterbalance the seriousness of the offence with the appellant’s personal circumstances which fall for consideration pursuant to s 10(1)(l) and (m) of the Sentencing Act. For those reasons I am of the view that the sentencing discretion has miscarried.

    [2] [2005] SASC 178

    Re-Sentencing

19. Looking at the matter afresh, given the appellant’s good record which has to be weighed up against the seriousness of this offending, I am of the view that the appellant is entitled to the opportunity to rehabilitate himself by virtue of a suspended sentence.  I therefore allow the appeal against sentence.

20. I impose one sentence of seven months imprisonment pursuant to s 18A of the Sentencing Act. I suspend that term of imprisonment on the condition that the appellant enters into a bond in his own sum of $1,000 to be of good behaviour for three years. A special term of that bond will be that he not approach, nor communicate either directly or indirectly with V.