Parsons v State of SOUTH AUSTRALIA

[2010] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

PARSONS v STATE OF SOUTH AUSTRALIA

[2010] SASC 48

Judgment of The Honourable Justice Nyland

5 March 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - GENERALLY

Appeal against sentence – appellant pleaded guilty to aggravated assault – victim of offence was former de facto spouse of appellant – whether Magistrate failed to take into account conduct of victim towards appellant – whether Magistrate should have fashioned sentence to provide for rehabilitation of appellant – sentence encompassed penalty for a number of offences including prior assault on same victim and breach of restraining order – no error by Magistrate - appeal dismissed.

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS

Appeal against costs – victims of crime levy a statutory charge – no power to reduce levy or exonerate defendant from liability.

Appeal against costs - whether Magistrate erred in awarding costs against appellant - appeal allowed - order for payment of balance of costs discharged.

Criminal Law Consolidation Act 1935 s 20(3); Summary Procedure Act 1921 s 991(1); Criminal Law (Sentencing) Act 1988 ss 18A, 19A; Victims of Crimes Act 2001 s 32(7)(b), referred to.

PARSONS v STATE OF SOUTH AUSTRALIA
[2010] SASC 48

1. NYLAND J:          This is an appeal against a sentence imposed in the Mount Gambier Magistrates Court on 18 September 2009. The appellant was charged on an information dated 3 February 2009 with the crime of aggravated assault on Melanie Copping at Millicent on 21 January 2009. The circumstances of aggravation alleged in the information are that the appellant committed the offence knowing that the victim was his former spouse. This is an offence contrary to s 20(3) Criminal Law Consolidation Act 1935 (“CLCA”). The maximum penalty for that offence is imprisonment for three years. The appellant was further charged on the same information that on the same date and at the same place he contravened a restraining order which had been imposed in the Magistrates Court sitting at Mount Gambier on 18 November 2008, contrary to the provisions of s 99I(1) Summary Procedure Act 1921 (“SPA”).  The maximum penalty for that offence is two years imprisonment.  The appellant pleaded guilty to both offences. 

2. The learned Magistrate applied the provisions of s 18A Criminal Law (Sentencing) Act 1988 (“Sentencing Act”) and imposed one sentence with respect to both matters. He indicated that the starting point for his sentence was a term of imprisonment of 15 months, but as the appellant had pleaded guilty after resolution of some disputed facts he allowed a reduction of three months from that sentence and fixed a period of imprisonment of 12 months. At the time of sentence the appellant was serving a sentence of 10 months and 15 days which had commenced on 8 February 2009. The Magistrate made the sentence for the present offences cumulative on that sentence. That resulted in a total term of imprisonment of 22 months and 15 days. The Magistrate then fixed a non-parole period of 15 months to commence from 8 February 2009.

3. At the time of this offending the appellant was subject to a restraining order imposed on 18 November 2008, pursuant to s 19A Sentencing Act. The Magistrate revoked that order, but made a further restraining order with respect to Ms Copping, subject to such contact as was necessary for various arrangements relating to the children.  The Magistrate also ordered the appellant to pay costs. 

4. The appellant now appeals against the whole of the order on the following grounds:

   1.     That the learned magistrate failed to give any or sufficient weight to:

   (a)    the continuing provocative conduct of the victim towards the appellant;

   (b)    the fact that the victim sustained relatively minor injuries only as a result of the appellant’s offending;

   (c)    the effect on the appellant’s young son of the appellant’s imprisonment; and

   (d)    the fact that after the incident, when the appellant stated to the victim, “You don’t know how close I am” she continued her provocative conduct towards the appellant.   

   2.That the learned Magistrate gave excessive weight to the need for general and personal deterrence respectively.

   3.That the learned Magistrate erroneously characterised the appellant as “someone who did not accept responsibility for his own conduct” in circumstances where the appellant had pleaded guilty at an early date and admitted assaulting the victim.

   4.That the learned Magistrate gave excessive weight to the appellant’s prior conviction of assaulting the same victim and failed to give any or sufficient weight to the appellant’s relative lack of antecedent offending involving like offending.

   5.That the learned Magistrate failed to give any or sufficient consideration to the fact that the appellant was already serving a lengthy sentence of imprisonment.

   6.That the learned Magistrate had failed to give any or any sufficient weight to the rehabilitative prospects of giving the appellant a wholly suspended sentence with conditions dealing with any alcohol abuse problems of the appellant.

5. On the hearing of the appeal, by consent, a ground 7 was added, namely that the learned Magistrate erred in awarding costs against the appellant. 

6. In order to understand the argument presented on appeal it is necessary to have some regard to the chronology of events.  On 16 September 2008 the appellant committed the offence of aggravated assault against Ms Copping, who is his former de facto partner.  They have apparently had an ‘on-again-off again’ relationship for a period of about 16 years and they have two children together. 

7. On 18 November 2008 the appellant appeared in the Magistrates Court at Mount Gambier with respect to that offence, as a result of which he was sentenced to a term of imprisonment of five months, which was suspended.  On the same day, the appellant entered into a restraining order which permitted him to have some contact with Ms Copping, but prohibited him from threatening or harassing her. 

8. On 3 December 2008 the appellant committed the offence of illegal interference with a motor vehicle. 

9. On 21 January 2009 the appellant committed the further offence of aggravated assault against Ms Copping, which is the subject of the sentence currently under appeal.  Following this offence the appellant was arrested but was granted bail.  On 8 February 2009, however, the appellant breached his bail agreement by attending at Ms Copping’s home.  He was then arrested and was remanded in custody until 11 February 2009. 

10. The offences of aggravated assault and failing to comply with the restraining order alleged to have occurred on 21 January 2009 were originally listed for hearing in the Magistrates Court on 11 March 2009.  They were subsequently brought forward to 11 February 2009 and the appellant pleaded guilty to both offences.  The appellant was then remanded in custody until 30 March 2009. 

11. On 30 March 2009 the aggravated assault and failing to comply with restraining order matters were remanded for trial as there was a factual dispute between the parties.  The Magistrate sentenced the appellant for the offences of breach of bail committed on 8 February 2009, interfere with a motor vehicle without consent on 3 December 2008, breach of bail on 12 October 2008 and two counts of breach community service orders.  In addition, he revoked the order for suspension of the earlier sentence and brought the sentence of five months imprisonment into effect.  That resulted in the sentence of imprisonment of 10 months and 15 days, which was backdated to commence on 8 February 2009. 

12. The dispute as to the facts as to what occurred on 21 January 2009 was finally resolved between the parties.  They are set out in the affidavit of Police Prosecutor, Paul Scicluna, sworn on 2 December 2009.  According to Mr Scicluna, on 28 July 2009 he told the learned Magistrate that the agreed facts were as follows:

    a.The victim and the appellant had been in an “on-again-off again” de facto relationship for the last 16 years and had two children together.

    b.     The victim had a restraining order against the appellant that did not forbid contact.

    c.On 21 January 2009 the appellant visited the victim’s house to socialise with the victim and mutual friends and to retrieve a set of car number plates.

    d.At the time of the incident the victim was moderately affected by alcohol.

    e.At some stage in the afternoon, or early evening, the victim overheard the appellant talking to a female friend on his mobile phone.

    f.The victim became angry and there was an argument.  The victim said words to the effect of “why don’t you go fuck your slut”.

    g.It was conceded that the victim was “in the face” of the appellant during this argument.

    h.At around this time the appellant was removing the number plates from the victim’s car.  The victim had borrowed the plates in order to avoid a driving unregistered charge.

    i.Whilst this was happening, the appellant had a screwdriver in his hand and held it up whilst saying to the victim words similar to “you don’t know how close I am”.

    j.It was accepted that the appellant did not intend to use the screwdriver to intimidate the victim, he just had it in his hand at the time.

    k.Despite this, the victim was intimidated and scared by the appellant’s behaviour.

    l.Shortly after this, the argument flared up again outside.

    m.The appellant and the victim were standing close to one another.  The victim had her back to a small bike and some bushes.

    n.It was conceded that the victim was “in the face” of the appellant.

    o.The appellant pushed the victim, causing her to fall into the bushes, the fall was made worse by the fact the bike was right behind her. 

    p.When she got up, the appellant and the victim began to wrestle with each other, they both had hold of one another.

    q.The appellant’s forearms were hitting the sides of the victim’s head during the wrestle, causing some pain to the victim’s jaw and her ear.  This pain continued after the incident.

    r.The victim went to ring the police and the appellant pleaded with her not to call the police.

    s.There was a short struggle for the phone and the phone ended up coming apart.

    t.The victim struck the appellant in the testicles.

    u.The victim called the police.

    v.It was conceded that during the argument the victim may have struck the appellant in the face and thrown a bottle at him.

13. After the learned Magistrate was provided with the agreed facts, the matter was further adjourned to 4 August 2009 as the Magistrate required a current offender history report in relation to the appellant.  On 4 August 2009 the matter came on for further hearing before the Magistrate.  The agreed facts as to what occurred on 21 January 2009 were again given to the Magistrate, together with a copy of the Offender History Report of the appellant and a copy of the Victim Impact Statement. 

14. The Magistrate then asked the prosecutor to ascertain whether the victim had a pattern of ringing the police without good cause and the matter was further adjourned to 18 September 2009 for the police to carry out that inquiry.  On 18 September 2009 the prosecutor informed the learned Magistrate that the victim felt that she had had good cause to call the police on previous occasions, but it was conceded by both parties that what the appellant and the victim perceived as “good cause” to phone the police differed.  The Magistrate then recorded a conviction against the appellant and imposed the sentence to which I have earlier referred, namely a sentence of 12 months to be served cumulatively upon the period of imprisonment of 10 months and 15 days currently being served by the appellant, which resulted in the total sentence of imprisonment of 22 months and 15 days, back-dated to 8 February 2009. 

15. Mr Stokes, who appeared for the appellant on the hearing of the appeal, submitted that in considering the appropriate sentence, the learned Magistrate failed to have any or sufficient regard to the factual circumstances of the current offending, the nature of the relationship between the parties and the contribution of the victim to the offence.  He further submitted that the learned Magistrate failed to have sufficient regard to the rehabilitation of the appellant, who was a person likely to benefit from a period of supervision and a program of counselling.  In making this particular submission, Mr Stokes relied on the report of Dr Nambiar, a psychiatrist who examined the appellant on 23 March 2009, pursuant to a request by the learned Magistrate.

16. In his report dated 25 March 2009, Dr Nambiar referred to the appellant’s history of alcohol and amphetamine abuse, which could have contributed to some of his erratic and criminal behaviour.  Dr Nambiar was unable to find any evidence to support a diagnosis of schizophrenia and suggested that at times the appellant may have experienced some psychotic symptoms in isolation that would have been in the context of long term amphetamine abuse.  Dr Nambiar thought the appellant would benefit from counselling to assist him in dealing with stress and anxiety. 

17. Whilst acknowledging the matters set out in the appellant’s antecedent report, Mr Stokes submitted they did not disclose a history of violent behaviour by the appellant.  The only allegations of violent behaviour were related to Ms Copping and given the contribution of Ms Copping to the present offences, the questions of personal and general deterrence were of lesser weight than might otherwise have been the case.  In those circumstances, Mr Stokes submitted that the more appropriate way to have dealt with this matter was to involve the appellant in an anger management program which would make him better able to deal with any future provocative behaviour from Ms Copping and also provide him with appropriate supports to become a better member of the community.  In the circumstances, he submitted that the Magistrate’s discretion had miscarried as a result of which the penalty imposed was manifestly excessive.

18. Whilst there is some force in the submission that the appellant would benefit from a sentence which included provisions as to counselling and anger management thereby fostering his rehabilitation, that in itself does not enable this court to intervene on appeal.  Mr Quartuccio appeared as counsel for the respondent on the hearing of the appeal.  He pointed out in his submissions that this offending was particularly serious in that it was committed only a few months after the appellant had been convicted of an earlier offence of assault against the same victim.  It was also in breach of a restraining order which had been imposed in relation to the previous assault.  Further, on the earlier occasion the appellant had been afforded leniency by reason of suspension of the term of imprisonment then imposed and the present offence had been committed during the period in which the appellant was subject to the suspended sentence bond.

19. The learned Magistrate appears to have had proper regard to all of the appellant’s personal circumstances, which included the report provided by Dr Nambiar.  The learned Magistrate rejected the submission on behalf of the appellant that the conduct of the victim amounted to provocation, but he accepted that the violence was not unprovoked or random. 

20. At the time of the sentence, the appellant was already serving a sentence for other unrelated offences.  The Magistrate was therefore obliged to make the further sentence cumulative upon the earlier sentence.  It was however open to the Magistrate to reduce the overall sentence in accordance with the totality principle in order that the ultimate sentence not be crushing.  The total sentence imposed in this matter, however, encompassed penalties for the following offences:

    (a)    Aggravated assault committed on 16 September 2008;

    (b)   Breach of bail committed on 8 February 2009;

    (c)    Illegal interference with a Motor Vehicle on 3 December 2008;

    (d)   Breach of bail on 12 October 2008;

    (e)    Two counts of breaching a Community Service Order;

    (f)    Aggravated assault committed on 21 January 2009;

    (g)    Failure to comply with a Restraining Order committed on 21 January 2009. 

21. In the circumstances, the learned Magistrate understandably took a poor view of the appellant.  In sentencing, the Magistrate had to take into account a number of offences, including the present offence, which had been committed when a restraining order was in existence and against the background of a prior assault upon the same person.

22. While the sentence finally imposed by the learned Magistrate with respect to the subject offences would appear to be severe when taking into account the agreed facts as to what occurred on 21 January 2009, I do not think that in all the circumstances it can be considered to be manifestly excessive.  The appellant has failed to establish any error on the part of the Magistrate which would entitle this court to interfere.  The appeal against sentence is therefore dismissed.

23. There remains the question of costs.  The amount for which the defendant is liable following his conviction for these sentences is the total sum of $537.25.  That includes the $340 victims of crime levy, which is a statutory charge imposed pursuant to the provisions of the Victims of Crimes Act 2001.  Section 32(7)(b) of that Act provides that a court may not at the time of convicting or sentencing a defendant reduce the levy or exonerate the defendant from liability to pay it.  The appellant was, however, sentenced to serve a lengthy term of imprisonment by the Magistrate, and had cooperated in the resolution of some of these matters in the course of the disputed facts hearing.  I therefore propose to allow the appeal against costs to the extent that the Magistrate’s order for payment of the balance of the costs be discharged.