Papastamatis v Police

PAPASTAMATIS v POLICE
[2003] SASC 102
Magistrates Appeal

DUGGAN J. The appellant has appealed against sentence imposed in the Magistrates Court for an admitted offence of assault occasioning actual bodily harm.
The female victim was living with the appellant at the time of the offence. They had lived together for approximately three years.
On the evening of 7 August 2002, the appellant and the victim went out with a friend. They returned home at about 3.30 am and went to bed. According to the victim’s version, she was awoken by the appellant at about 5.30 am. He was pushing her and yelling at her asking her about a man named “Mark”. It would appear from the victim’s version that the appellant had found a reference to this name recorded on the victim’s mobile telephone.
The victim claims that she told the appellant that there was nothing sinister or inappropriate in the fact that the name was in her book. However, according to her version, he swore at her and carried out a sustained assault on her. In the course of the assault, the appellant sat on the victim and punched her repeatedly in the face and around the head and body. The victim suffered extensive injuries to her face, hands and torso. There was widespread bruising to her body and her nose was broken. She received medical treatment at a hospital.
The learned magistrate sentenced the appellant to imprisonment for 13 months and imposed a three month non-parole period. He declined to suspend the sentence.
The grounds of appeal complain that the sentence is manifestly excessive; that the term of imprisonment should have been suspended and that the magistrate erred in failing to identify the discount allowed for the appellant’s plea of guilty. A further ground complains that the sentencing process miscarried because the solicitor who appeared for the appellant at the Magistrates Court failed to put certain information before the Magistrate and did not contest certain aspects of the prosecution’s version of the facts.
It is convenient to deal first with the complaint in relation to the manner in which the appellant’s case was handled at the hearing. Affidavits sworn by the appellant and his then counsel were filed in support of this ground. Objection was taken to some paragraphs in the affidavits but, subject to one exception, I have decided to admit all the material into evidence in order to determine whether the sentencing process miscarried (R v McKenna (unreported) CCA (NSW) 60705 of 1991, 16 October 1992). The exception relates to statements attesting to the appellant’s good character which were obtained after the proceedings in the Magistrates Court. No satisfactory reason was given by the appellant as to why these statement were not obtained before the Magistrates Court proceedings. A character reference from another person was tendered before the magistrate. I should add that part of the evidence tendered on appeal consisted of telephone conversations which the appellant said he had with the victim after she had reported the matter to the police. After considering this material I am of the view that it is of little or no value to the sentencing of the appellant.
The appellant’s solicitor stated in his affidavit that he had appeared in the Magistrates Court on only a few occasions during his last ten years of practice. He said that in hindsight he should have referred the matter to a specialist criminal lawyer.
The solicitor said he obtained a copy of the police apprehension report and discussed the allegations with his client in general terms. The appellant gave him both oral and written instructions.
Originally, the appellant was charged with three other offences. It was alleged that on an occasion prior to the present offence the appellant had assaulted the victim and threatened to cause harm to her. It was also alleged that on the occasion of the present offence the appellant had threatened to cause harm to the victim intending to arouse a fear that the threat would be carried out. The solicitor negotiated with the police in relation to the alleged offences and it was agreed that the appellant would plead guilty to the present offence and no evidence would be tendered in respect of the other matters.
The appellant instructed his solicitor that he wished to have the matter dealt with on the day he pleaded guilty. The solicitor stated in his affidavit that he then made lengthy submissions on behalf of his client. During the submissions the magistrate intimated that he was seriously considering an immediate term of imprisonment and he invited the solicitor to make further submissions, which he did.
The solicitor acknowledged in his affidavit that he failed to put to the court instructions he had received from his client which were of relevance to the prosecution version of the facts. He also stated that he did not indicate to the court that some of the allegations put by the prosecutor were disputed by his client.
Claims that a court order or finding should be set aside because of error by counsel in the conduct of a case must be approached with considerable caution: R v Armstrong (1983) 35 SASR 356. Cox J referred to the principles relevant to the consideration of such a ground of appeal in R v Clarkand Others (1996) 91 A Crim R 46 at 66 when he said:
“The court will allow an appeal against conviction if it is satisfied that the appellant’s defence was so mismanaged as to result in a miscarriage of justice. The principles upon which the court acts were discussed in the recent cases of Oliverio (1993) 61 SASR 354; 70 A Crim R 5 and Scott (1996) 131 FLR 137. In each case the court adopted the following passage from the judgment of Gleeson CJ in Birks (1990) 19 NSWLR 677 at 685; 48 A Crim R 385 at 392:
‘(1) A Court of Criminal Appeal has a power and duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
(2) As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve error of judgment or even negligence.
(3) However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellant intervention.’
In Scott the position was summarised by Doyle CJ as follows (at 151);
‘It appears now to be settled that, when it is sought to set aside a conviction on the ground that counsel at trial acted incompetently or contrary to instructions, the crucial question to be argued is not the incompetence of counsel whether a miscarriage of justice resulted at trial. The issue of miscarriage of justice has to be considered in the light of the role of counsel, the fact that ordinarily the client is bound by the decisions of counsel and in the light of the wide discretion which counsel has as to the conduct of the trial.’ ”
These principles were applied to appeals against sentence in McLean (2001) 21 A Crim R 484; R v McKenna (supra) and Abbott (1984) 17 A Crim R 355.
If a court sentences upon an incorrect sentencing basis which is of such a nature as to indicate that the sentencing process has miscarried, the court will set aside the sentence and exercise the sentencing discretion afresh. If the error results from the conduct of defence counsel, the sentence may be set aside if the court considers that there has been a miscarriage of justice occasioned by the passing of an inappropriate sentence. On the other hand, the defendant will be bound by the conduct of the defence case in those situations where counsel has made deliberate decisions which might fairly be said to come within the exercise of the discretion as to the manner in which the case is to be conducted.
Not without some hesitation, I proceed on the basis that the solicitor overlooked raising certain disputed factual matters with the magistrate. It appears that the solicitor was influenced to a degree in his handling of the case by reason of the fact that the appellant wished the case to be finalised on the day of the hearing. If this was a major consideration and the submissions were not made as a consequence, then the defendant would be bound by the consequences. However, as there is also a concession by the solicitor in the present case that he simply overlooked certain matters, I propose to consider the ground of appeal in more detail.
The first task in doing so is to compare the instructions given by the appellant to the solicitor with the version of the facts supplied to the court by the prosecutor, it being acknowledged that the prosecution version of the facts was not challenged by the defence.
In her submissions to the magistrate, the prosecutor stated that the appellant pulled the victim up by the hair at the beginning of the incident. She said the appellant threatened to kill the victim, spat in her face and started to choke her. It is not clear from the prosecutor’s affidavit whether she claimed that the appellant denied the victim the use of her asthma spray, but the prosecutor did say that the victim reached for the spray at one stage and that the attack continued. The prosecutor told the court that the appellant drove the victim to hospital, although she asserted that the victim begged the appellant for 45 minutes to do so. The prosecutor said that the appellant threw the victim’s mobile telephone across the room when she was trying to ring the police.
In his affidavit tendered at the hearing of the appeal the appellant stated that he told his counsel:
“15.1That I did not pull Christina up by the hair in the beginning of the incident, and that I had only pulled her by the hair after she had bitten me in the course of the argument;
15.2that I did not threaten to kill her;
15.3that I did not spit on her;
15.4that I did not choke her;
15.5that I did not threaten to kill her and cut her up;
15.6that I did not deny her her asthma spray;
15.7that I did not say ‘look what you have made me do’; rather I said ‘look what I have done to you’;
15.8that I did not deny her use of her phone; and
15.9that I voluntarily took her to hospital.”
When summarising the circumstances of the offence in his sentencing remarks the magistrate said:
“The defendant, and he now freely acknowledges it, lost control of himself completely. He subjected his companion to a violent persistent cruel, unrelenting and unforgiving assault. He pulled her by the hair. He threatened to kill her. He sat on top of her on a number of occasions. He punched her repeatedly with his fists. He spat in her face. He started to choke her, she was an asthmatic. When the attack finally subsided he remarked ‘Look what you have made me do’. She suffered injuries. Certainly they were not life threatening. Certainly the courts have heard of more severe injuries than this in some cases of assault occasioning actual bodily harm but these were significant injuries.”
There are some clear discrepancies between the victim’s version as outlined to the court by the prosecutor and the appellant’s instructions to his solicitor. The solicitor stated in his affidavit that he was anxious to avoid a disputed facts hearing. He said the appellant told him he wanted the matter dealt with on that day and that he, the solicitor, was due to travel overseas for six weeks three days after the hearing.
Whilst acknowledging that the circumstances identified by the appellant as being in dispute can be regarded as aggravating features, the extent to which this is so must also be considered.
This was a serious offence of its type. The victim was subjected to a violent and prolonged assault. Photographs which were tendered at the hearing before the magistrate reveal something of the extent of the injuries which were inflicted. It is clear that the victim was quite unable to defend herself. The gravamen of the offence lies in the physical assault itself, particularly that aspect of the assault which led to the injuries suffered by the victim.
The appellant stated in his instructions to his solicitor that the victim was considerably under the influence of alcohol at the time of the assault. He said he accused her of lying to him about a man he thought she might have been interested in. He said she threw some punches, he grabbed her arms and she bit him on the right arm. He then grabbed her hair, pulled it as hard as he could and commenced the assault on her.
I have already referred to the denials made by the appellant in his affidavit and the instructions which he alleged he gave to his solicitor about these matters. He also claims that there were aspects of the general relationship between him and the victim which were not brought to the attention of the magistrate.
Although the versions as to how the incident commenced are different, there is no doubt that it arose as a result of allegations made by the appellant and that the intensity of the assault resulted not from the victim’s physical reaction to the allegations, but as a result of the appellant’s rage following on from his conclusion that she had been seeing another man.
The discrepancies as to when her hair was pulled, whether she was spat upon and whether the appellant choked her are not of vital significance when considered against the extent of the admitted physical assault. The same applies to the alleged threat to kill her.
I am prepared to proceed on the basis that the appellant’s version of the events and his instructions as to the background of his relationship with the victim are correct. However, after considering the penalty in this case in the light of the facts which are admitted by the appellant and disregarding the issues which are contentious, I am confident in my view that the sentence imposed was appropriate.
The same considerations have led me to the conclusion that the sentence is not manifestly excessive. I have pointed out that this was a sustained assault which inflicted extensive injury. It would seem that the magistrate commenced from a starting point of about 16 and a half months imprisonment before discounting for the plea of guilty. The non-parole period of three months was low when compared with the head sentence of 13 months. The legislature has fixed a maximum penalty of imprisonment for five years for this offence. It is my view that the sentence was within the appropriate range for an offence of this type. I reiterate that these comments are made on the basis of an acceptance of the appellant’s version of the events.
There is a further complaint that the magistrate did not state the amount of discount. The Full Court has held on several occasions that it is important for sentencing courts to indicate the extent of any reduction for a plea of guilty or other co-operation with the authorities. Such an indication notifies the offender and others of the degree of leniency which has been extended and it also assists an appellate court in reviewing the sentence: R v Powell (2001) 81 SASR 9. However, the failure to follow this recommended practice is not an error of law. The question remains whether the sentence is shown to be manifestly excessive: Powell at [21].
The final ground of appeal complains that the sentence should have been suspended. The appellant has no previous convictions and he has been in employment. He pleaded guilty to the offence. These are all relevant matters which, in an appropriate case, might led to the suspension of a term of imprisonment. However, the circumstances of the offence must also be taken into account.
I have observed that this is a serious offence of its type. The victim was defenceless as is often the case when violence of a domestic nature takes place. The element of deterrence, both personal and general, is of particular importance in such cases.
In my view it was appropriate to impose an immediate custodial sentence.
The appeal will be dismissed.

[2003] SASC 102

3 April 2003