Police v Chadwick No. Scgrg-98-26 Judgment No. S6548

[1998] SASC 6548

POLICE V CHADWICK

Magistrates Appeal

Lander J

These are appeals from a sentence imposed by a Magistrate on 8 December 1997 upon Steven William Chadwick who was convicted by the learned Magistrate on 1 June 1997 of assaulting Pazi Cotter, a person of the age of ten years, occasioning actual bodily harm.

The learned Magistrate sentenced Mr Chadwick (whom I shall call the respondent) to two years imprisonment with a non parole period of eighteen months.  His Honour then suspended that sentence upon the respondent entering into a bond to be of good behaviour for a period of three years upon the condition that he perform 300 hours of community service within one year.

The complainant, the South Australian Police, appeals against the sentence claiming that the learned Magistrate erred in suspending the sentence of imprisonment.

The respondent also appeals against the same sentence upon the basis that the sentence imposed was manifestly excessive.

Both the South Australian Police and the respondent cannot be right.  The question is whether either is right.

The respondent is the father of David Chadwick, who suffers from attention deficit disorder.  Although at the time this incident occurred he was in grade five at school, he has the mental age of a child in grade two or three.

David Chadwick has various difficulties at school apparently being the subject of assaults at the hands of other children.  The respondent has complained to the principal at the school on a number of occasions and to the police but, notwithstanding those complaints, the assaults and the teasing which accompany the assaults have continued.

On 1 June 1997 the respondent’s wife, who was then living with the respondent, accompanied by David, burst into the workshop in which the respondent was working.  David had a fairly bad split lip with blood all over his face. He had other lacerations to his mouth.  His nose was also bleeding. 

The respondent treated the cuts and inquired of his son how it was that he had suffered the injuries.   He was told of the involvement of two children in particular, a young boy called Scott and another lad called Pazi.

The respondent got in his car accompanied by his wife, his daughter and his son and drove to Luck Street.

There is no contest about the facts to this point except perhaps the involvement of Scott and Pazi in the injuries suffered by the respondent’s son.

The prosecution case was that upon arrival at Luck Street the respondent was angry and his anger was directed at both Scott and Pazi.  The prosecution case was that the respondent quickly got out of his car, rushed across Luck Street and confronted Pazi.  In the meantime, Pazi, who was in the company of a number of other young children, on seeing the respondent whom they recognised as being David Chadwick’s father tried to flee.  He tried to get away.  The prosecution case was that Pazi fell over on his back.

The respondent then confronted Pazi, picked him up and hit him three times in the face breaking his nose thereby causing him actual bodily harm.

The respondent offered to plead guilty to a charge of assault, but only upon the basis that he acknowledged a technical assault had been committed on the child upon the factual basis he did not hit or punch Pazi Cotter in the face but that Pazi Cotter had, in seeking to flee, fallen over and broken his nose.

The Magistrate heard evidence from the prosecution and the respondent and his witnesses and treated the respondent’s plea as one of not guilty.

He concluded beyond reasonable doubt that the prosecution had made out it’s case and that the respondent had punched the young boy with his fist, three times to the face breaking the young boy’s nose. 

In reaching that conclusion the learned Magistrate accepted the evidence of the victim and a number of children who were with the victim at the time and who were called in support of the victim’s account; the evidence of Ms Farrimond, who resided at 6 Luck Street, Macclesfield in so far as it corroborated the account given by the victim and the other young witnesses; and the evidence of Doctor Brookes, a medical practitioner who offered the opinion that it was unlikely that the child could have suffered a fractured nose by falling without there being some impact marks on the skin. 

In reaching his conclusion the learned Magistrate found that the victim in seeking to flee from the respondent fell on his back and at no stage did the victim’s nose come into contact with the roadway, the grass or anything else.  He concluded that the victim was struck on three occasions by the respondent using his right fist and that each of the blows fell upon the victim’s face, one of which caused the fracture to the victim’s nose.

He expressly accepted the account given by Pazi Cotter and the other witnesses called by the Prosecutor and expressly rejected the respondent’s account that the victim broke his nose in trying to flee and that the respondent had done no more than remonstrate with him and had not struck him on the face.

The learned Magistrate also rejected the evidence called by the respondent on his own behalf and in particular the evidence of his wife and daughter.

In his findings as to the events the learned Magistrate described the attack as a cowardly attack by an adult on a child which, whatever the information given to the respondent in relation to his son’s injuries, was inexcusable and had to be regarded as a serious example of its type.

The learned Magistrate therefore convicted the respondent of the charge of assault occasioning actual bodily harm.

As I have mentioned the appeals before this Court relate only to the sentence imposed by the learned Magistrate. 

The victim suffered a broken nose including crushed cartilage to the right side.  The fracture of the nose has broadened the nose giving the victim difficulty with his breathing.  It is thought that the victim will have to undergo surgery to improve his breathing when he matures.

Shortly after the incident the victim developed shingles presumably, although the evidence is not clear, as a result of a nervous reaction to the events.

The assault upon the victim was a serious one.  Such an assault demonstrates the high water mark of bullying by a mature man on a young defenceless child.  The assault was not only serious in its form but also serious in its result in that it has given rise to the injuries to which I have referred.

The assault was committed in circumstances where the respondent believed that this ten year old child was responsible in part or in whole for the injuries which his own son had suffered earlier that day.  That is an explanation for the assault but, of course, it is no excuse for that behaviour.

Little credit could be given to the respondent for any contrition or remorse on his part.  Whilst he was prepared to accept that he had been guilty of a technical assault he was not prepared to admit and to accept the responsibility for the very serious injury suffered by the victim.  He refused to acknowledge the seriousness of the assault upon this young victim and required the young victim and his friends to relive, in the Courtroom, the events of that day.

The assault was so serious, in my opinion, that it required the imposition of a sentence of imprisonment.  Whilst I am inclined to think that notwithstanding the gravity of the offence, a sentence of imprisonment for two years is at the higher end of the scale, I am not able to say that such a sentence of imprisonment was manifestly excessive.

I think also that the non parole period imposed by the learned Magistrate was a little high but again I am not able to say it was so high as to indicate error on the part of the learned Magistrate in the exercise of his sentencing discretion. 

For those reasons, in my opinion, the respondent’s appeal should be dismissed.

The appeal by the South Australian Police requires different consideration.

There is no doubt now, if there ever was, that an appeal by the complainant in relation to a sentence imposed upon a respondent in the Magistrates Court is subject to the principles as enunciated by the High Court in Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150.

The principles that must be applied are those stated by the majority in Everett (Brennan, Deane, Dawson and Gaudron JJ) at 299-300 [footnotes omitted]:

“Such a jurisdiction has become commonplace throughout this country and the common law world.  Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognise that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.  That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”.  In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick C.J. in Griffiths v. The Queen (1977) 137 CLR 293:

“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”.

The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting “error in point of principle”.

I think in the application of those principles to this case the appellant has the difficulty of persuading this Court that there is some point of principle involved in a reconsideration of this sentence.  This Court can interfere on an appeal in circumstances where it is necessary to correct idiosyncratic views of individual magistrates and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: R v Osenkowski (1982) SASR 212 at 212-213.

In Police v Cadd (supra) Doyle CJ said (159):

“The function of the Court of Criminal Appeal of a State is to supervise the exercise of sentencing powers by magistrates, by the District Court or its equivalent and by judges of the Supreme Court.  A Court of Criminal Appeal of a State is not concerned only with errors of principle, but also with maintaining an appropriate degree of uniformity of sentencing and maintaining adequate sentences.  The interests of the administration of justice include an interest in consistency of approach, and an interest in consideration of the public interest in the courts imposing adequate punishment for offences.”

This Court would be entitled to interfere with the sentence imposed by the Magistrate in order to establish a matter of principle or to ensure a uniformity of sentencing standards or to correct a manifest inadequacy.

The complaint by the appellant in this case is that the learned Magistrate ought not to have exercised his discretion to suspend the period of imprisonment because of the seriousness of the offence.  It was argued that the circumstances of this offence were so serious that the sentence could not have been suspended.  There is no doubt that this offence was serious.  It merited, as I have already said, a substantial period of imprisonment.  However it cannot be said that the offence was so grave that the period of imprisonment could not be suspended.  If the respondent’s personal circumstances were such that they gave rise to good reason for suspension then the term of imprisonment could be suspended.

The learned Magistrate was entitled to suspend the sentence of imprisonment if he thought that good reason existed for him doing so (Section 38, Criminal Law (Sentencing) Act).  In this case the learned Magistrate has not indicated precisely what it was that he relied upon for the exercise of that discretion.  Indeed he gave no reasons for the suspension of the period of imprisonment.

The appellant is thirty-two years of age.  He was born in Adelaide but has lived in Port Lincoln and other places in Australia.

At the age of sixteen the appellant joined the Royal Australian Navy after completing Year 10 at Christies Beach High School.  The appellant was stationed at HMAS Leeuwin at Fremantle and he completed Years 11 and 12 in just one year.  After five years with the Navy the appellant was honourably discharged due to the de-commissioning of HMAS Melbourne.  By that time the appellant had obtained qualifications as a marine fitter.

Thereafter the appellant has remained in almost constant employment: as an engineer and spray painter with Port Lincoln Ship Construction for two years; as a spray painter and later commercial agent for Radio Rentals for five years; as a sub contractor for a firm called Corrocoat for two years.

The appellant is now studying and has completed the first year of a bachelor of Building degree at the University of South Australia.

The appellant is married with three children.  The middle child, David, suffers from attention deficit disorder.  The appellant has tried to give his son special assistance because of his difficulties at school and generally spend more time with him than he otherwise would.  The appellant and his wife separated two years ago, although they have continued to live at the same address in separate accommodation during that period.

The appellant and his family have moved from the Macclesfield area to the southern suburbs of Adelaide and the appellant intends not to visit the Macclesfield area again.

The respondent has a previous conviction for fraud about seven years before this offence.  In relation to that earlier conviction he was placed upon a bond to be of good behaviour for a period of eighteen months and to perform 200 hours of community service.  He duly observed the conditions of that bond.

The offence was committed in circumstances where the respondent believed that the child had been the author of an assault upon his son.  Whilst that is no excuse for his behaviour it explains why he reacted so irrationally and badly and allows it to be said that his behaviour was out of character.

The learned Magistrate no doubt considered that there were good prospects for the respondent’s rehabilitation.

I believe, in the circumstances, there were sufficient reasons why the Magistrate might have reached the conclusion that it was appropriate to suspend the sentence of imprisonment notwithstanding the seriousness of the circumstances of the offence.

I am therefore not able to say that the suspension of the sentence of imprisonment is outside the proper exercise of the learned Magistrate’s sentencing discretion.

For those reasons I would dismiss both appeals.