Papastamatis v Police - [2003] SASC 102

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…

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: Papastamatis v Police [2003] SASC 102
Case: [2003] SASC 102
Decision Date: 3 April 2003

CaseChat Overview and Summary

The appellant in this case appealed against the sentence imposed by the Magistrates Court for an offence of assault occasioning actual bodily harm. The victim, who had been living with the appellant for approximately three years, alleged that the appellant assaulted her after finding a reference to a man named "Mark" in her mobile phone. The appellant admitted to the assault, resulting in the victim suffering extensive injuries. The Magistrate sentenced the appellant to imprisonment for 13 months with a non-parole period of three months. The appellant appealed on the grounds that the sentence was manifestly excessive, the term of imprisonment should have been suspended, and the magistrate failed to identify the discount allowed for the appellant's plea of guilty. A further ground complained that the sentencing process miscarried because the appellant's solicitor did not put certain information before the Magistrate and did not contest certain aspects of the prosecution's version of the facts.

The court considered the appellant's complaint regarding the handling of his case by his solicitor, who admitted to failing to put certain instructions to the court. The court emphasised that claims of error by counsel must be approached with caution, and that the accused is generally bound by the decisions of counsel. However, in this case, the court found that the solicitor had simply overlooked certain matters, leading to a potential miscarriage of justice. The court acknowledged that the appellant's version of the events and his instructions as to the background of his relationship with the victim were correct, but concluded that the sentence imposed was appropriate and not manifestly excessive. The court also noted that the magistrate's failure to state the amount of discount for the plea of guilty was not an error of law, but rather a failure to follow recommended practice. Lastly, the court found that it was appropriate to impose an immediate custodial sentence given the seriousness of the offence and the need for deterrence.

The appeal was dismissed, and the original sentence was upheld.

Orders