Parry v Police - [2020] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PARRY v POLICE
[2020] SASC 133
Judgment of The Honourable Justice Bampton
16 July 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appeal against sentence imposed by Magistrate – where appellant pleaded guilty to assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 – where the appellant was sentenced to 16 months imprisonment reduced by 30 per cent to 11 months and 10 days – where six months of the term of imprisonment was to be served in custody and the remainder suspended upon the appellant entering into a bond to be of good behaviour for two years – whether the sentence was manifestly excessive – whether the Magistrate erred in failing to suspend the whole of the sentence – whether the appellant was sentenced on an incorrect factual basis.
Held: Appeal dismissed – the sentencing process did not miscarry – the sentence was not manifestly excessive – the decision to partially suspend the sentence was within the Magistrate’s discretion.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23, s 18; Magistrates Court Rules 1992 (SA) r 18; Correctional Services Act 1984 (SA) s 37A, referred to.
The Queen v Perre (1986) 41 SASR 105; Kentwell v The Queen (2014) 252 CLR 601, applied.

PARRY v POLICE
[2020] SASC 133
Magistrates Appeal: Criminal

BAMPTON J: Owen Parry pleaded guilty on 15 August 2019 to assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).[1] He was sentenced, on 10 March 2020, to 16 months imprisonment reduced by 30 per cent on account of his guilty plea to 11 months and 10 days. The sentencing Magistrate ordered that Mr Parry serve six months of the imprisonment in custody and suspended the remainder of the sentence upon him entering into a bond to be of good behaviour for two years from the date of his release. A condition of the bond is that Mr Parry will be under the supervision of a community corrections officer for one year.
[1] The maximum penalty for an offence contrary to s 20(4)(a) of the CLCA is imprisonment for three years.
Mr Parry now appeals the sentence on ground 1, that the sentence is manifestly excessive; ground 2, that the Magistrate erred in failing to suspend the whole of the sentence; and ground 3, that he was sentenced on the incorrect factual basis.
The sentencing Magistrate also confirmed a police issued intervention order immediately following imposition of the sentence pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the…

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.

Continue reading Parry v Police

Details

AGLC: Parry v Police [2020] SASC 133
Case: [2020] SASC 133
Decision Date: 16 July 2020

CaseChat Overview and Summary

Parry v Police involved an appeal against a sentence imposed by a Magistrate in South Australia. The appellant, Mr. Parry, pleaded guilty to an offence of assault causing harm under section 20(4) of the Criminal Law Consolidation Act 1935. The Magistrate sentenced Mr. Parry to 16 months imprisonment, reduced by 30% to 11 months and 10 days, with six months to be served in custody and the remainder suspended contingent upon Mr. Parry entering into a bond to be of good behaviour for two years. The appellant contested the sentence, arguing it was manifestly excessive and that the Magistrate erred in failing to suspend the entire sentence. Additionally, Mr. Parry claimed the sentence was based on an incorrect factual basis.

The court considered whether the sentencing process miscarried, whether the sentence was manifestly excessive, and if the Magistrate’s decision to partially suspend the sentence was within their discretion. The court found that the sentencing process did not miscarry and that the sentence was not manifestly excessive. The decision to partially suspend the sentence was deemed to be within the Magistrate's discretion. The court held that the evidence presented, including an affidavit from the victim and photographs of injuries, supported the Magistrate’s findings. The appeal was dismissed, and the sentence upheld.

The final orders of the court were that the appeal was dismissed, and the sentence imposed by the Magistrate was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I dismiss the appeal.Background Mr Parry was charged with the basic offence of assault causing harm to Ms V following Ms V’s complaint to police on 8 March 2018. Ms V reported that she had known Mr Parry for about 16 months, that they had had an intimate relationship until 29 November 2017, and that they did not live together nor did they have children together. Ms V said that on 7 March 2018 she attended Mr Parry’s home. They drank wine and engaged in discussion about Mr Parry’s workplace difficulties. She alleged that Mr Parry became agitated and during a physical altercation assaulted her. Mr Parry was arrested, refused police bail, and was served with an interim intervention order for the protection of Ms V issued by police on 8 March 2018. Mr Parry spent one night in custody and was released on a supervised bail agreement on 9 March 2018.The application for the intervention order Pursuant to s 18(5) of the Act, upon the interim intervention order issued by police being served on him, the order was taken to have been an application to the Court for an intervention order and Mr Parry was taken to have been issued a summons to appear before the Court for the purposes of the hearing and determination of the application under s 23 of the Act (“the application for the intervention order”). The application for the intervention order was allocated court file number AMC-18-2904. By reference to the Court records, the application for the intervention order file and the assault cause harm charged on file number AMC‑18-2927 (“the matters”) were listed for hearing at the same time from the first return date of 15 March 2018 to 10 March 2020 when the sentence was imposed and the intervention order confirmed. Significantly, r 18.01(d) of the Magistrates Court Rules 1992 (SA) (“the MCR”) provides that, where a police officer issues an interim intervention order, he or she must:d.arrange for relevant witnesses to be available for oral examination by the court to provide evidence to establish the factual matters that were the grounds for issuing the order or provide affidavit evidence of those factual matters. Rule 18.03 of the MCR provides:18.03At the first return of an interim intervention order issued by a police officer:(a) the Court will hear evidence about the factual matters that were the grounds for granting the order and must record the evidence and where possible keep an audio visual record so that it can be available to the Court in later hearings;(b) subject to any order of the Court to the contrary, if the defendant contests any factual matter, or the issuing of a final order, any evidence given at the first return will be treated as evidence in chief, and further evidence in chief of the witness(es), cross examination and other evidence on behalf of the applicant or the defendant will be adjourned to a later date to be fixed by the Court. In accordance with r 18.01(d) of the MCR, Police obtained an affidavit from Ms V affirmed 8 March 2018 (“the affidavit”) wherein Ms V details what she alleges occurred at Mr Parry’s home on 7 March 2018. Seven photographs of Ms V’s alleged injuries were also taken by police on 8 March 2018 (“the photographs”).The hearings of the matters

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ground 2 is not made out.Conclusion None of the grounds of appeal are made out. I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The respondent also pointed out that the obvious and multiple injuries to Ms V’s face and body depicted in the photographs support the submission that the punch occurred in the context of an ongoing physical altercation. The photographs depict, as the Magistrate described, severe swelling and bruising to Ms V’s face as well as bruising and swelling to other parts of her body. Finally, it was submitted that the email correspondence does not include any agreement that the photographs would not form part of the sentencing process. Consideration of ground 3 There is no express statement or suggestion in the email correspondence between Mr Bretag and Ms Lindblom that the Magistrate should not have regard to the affidavit or that the 10 dot point factual basis was the sole factual basis for sentencing. Having regard to the similarity of the matters deposed to in the affidavit and the 10 dot point factual basis and absent any evidence of an intention to withdraw the affidavit in substitution for the 10 dot point factual basis, it is not established that the 10 dot point factual basis was intended to replace the affidavit. This is supported by the fact that the intervention order application also fell to be considered by the Magistrate. The operation of r 18.01(d) of the MCR obliged the police officer who issued the interim intervention order on 9 March 2018 to either arrange for Ms V to be available for oral examination by the Court to provide evidence to establish the factual matters that were the grounds for issuing the order or provide affidavit evidence of those factual matters. The later course was adopted and the affidavit was provided to the Court. If Mr Parry took issue with the content deposed to in the affidavit he was entitled to cross‑examine Ms V pursuant to r 18.03 of the MCR. Even if the matters were not heard concurrently, Mr Parry still had the right to cross‑examine Ms V as to the content of the affidavit pertaining to the assault cause harm charge. He did not do so. In the end result, there was nothing about the course of the sentencing process which, on my assessment, resulted in a miscarriage of justice. As King CJ observed in The Queen v Perre (“Perre”):[2]The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant’s role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge. [2] (1986) 41 SASR 105 at 105.