Police v Kennedy

Case [2005] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v KENNEDY

Judgment of The Honourable Justice Gray

12 May 2005

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW

Crown appeal against sentence - respondent charged with assault occasioning actual bodily harm - assault arose out of circumstances of road rage - appeal on grounds that magistrate erred in failing to record a conviction and that sentence manifestly inadequate.

Discussion of section 16 of the Criminal Law (Sentencing) Act 1988 (SA) - consideration of magistrate's exercise of discretion - discussion of ability of appellate court to interfere with exercise of discretion - consideration of sentencing principles.

Held - appeal allowed - sentence imposed by magistrate set aside - respondent convicted of assault occasioning actual bodily harm - respondent to enter into three-year good behaviour bond.

Criminal Law Consolidation Act 1935 (SA) s 40; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; Reeves v Police (1997) 70 SASR 451; Lock v Police [1999] SASC 50; Balnaves v Police [2001] SASC 159; Toohey v Police [2001] SASC 44; Nichols v Police [2005] SASC 106, considered.

POLICE v KENNEDY
[2005] SASC 173

Magistrates Appeal

GRAY J:

Introduction

  1. This is a Crown appeal against sentence.

  2. The respondent, Nicholas John Kennedy, was charged on information that on 12 February 2004 at West Lakes, he assaulted a person above the age of 12 years thereby occasioning him actual bodily harm contrary to section 40 of the Criminal Law Consolidation Act 1935 (SA). The respondent pleaded guilty at trial.

  3. The offence exposed the respondent to a maximum term of imprisonment of five years.  As the matter proceeded in the Magistrates Court, the maximum penalty that could be imposed by that court was imprisonment for two years. 

    The Facts

  4. The offending arose out of circumstances of road rage.  The respondent was driving his truck in the vicinity of a loading dock at the West Lakes shopping mall.  The victim was driving a motor vehicle in the same area.  At the time the victim was trying to move his vehicle to make way for the respondent’s truck.  To do so, he moved his vehicle forward and backward several times.  On one of the forward movements, the front of his vehicle made slight contact with the wheel and tyre of the respondent’s truck.

  5. The respondent then alighted from the truck and approached the victim.  He did so in an aggressive manner.  The driver’s window was down.  The respondent remonstrated with the victim, and when doing so was almost “nose to nose” with him.  The victim reacted by raising his arm to make space between his face and the respondent’s face.  The victim accepted that in raising his hand he might have made…

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Police v Kennedy [2005] SASC 173
Case
[2005] SASC 173
Decision Date

CaseChat Overview and Summary

In the case of Police v Kennedy, the respondent was charged with an assault occasioning actual bodily harm arising from an incident of road rage. The incident involved the respondent punching the victim, who was driving his vehicle, through the open driver's window, causing injury to the victim's eye. The case proceeded to appeal by the Crown, challenging the sentence imposed by the magistrate. The Crown argued that the magistrate had erred by not recording a conviction and that the sentence imposed was manifestly inadequate.

The primary legal issues the court needed to address were whether the magistrate had erred in not recording a conviction and whether the sentence imposed was manifestly inadequate. These issues required consideration of the relevant statutory provisions, particularly section 16 of the Criminal Law (Sentencing) Act 1988 (SA), which governs the imposition of sentences by the court. The court also had to evaluate the magistrate's exercise of discretion and the principles of sentencing that should be applied in road rage cases.

The court held that the appeal should be allowed. The reasoning included that the magistrate had erred by not recording a conviction, as the respondent's criminal antecedents indicated a problem with behaviour control, suggesting that the respondent required some form of assistance to modify and control his behaviour. Additionally, the penalty imposed by the magistrate was manifestly inadequate, given the gravity of the offence and the need for general deterrence in road rage cases. The court re-sentenced the respondent to a three-year good behaviour bond, considering the principles of sentencing and the need to maintain adequate sentencing standards.

The final orders of the court were that the sentence imposed by the magistrate was set aside, and the respondent was convicted of assault occasioning actual bodily harm. The respondent was to enter into a three-year good behaviour bond.

Orders

Orders of the court

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Background

Background to the litigation

The offence exposed the respondent to a maximum term of imprisonment of five years. As the matter proceeded in the Magistrates Court, the maximum penalty that could be imposed by that court was imprisonment for two years. The Facts The offending arose out of circumstances of road rage. The respondent was driving his truck in the vicinity of a loading dock at the West Lakes shopping mall. The victim was driving a motor vehicle in the same area. At the time the victim was trying to move his vehicle to make way for the respondent’s truck. To do so, he moved his vehicle forward and backward several times. On one of the forward movements, the front of his vehicle made slight contact with the wheel and tyre of the respondent’s truck. The respondent then alighted from the truck and approached the victim. He did so in an aggressive manner. The driver’s window was down. The respondent remonstrated with the victim, and when doing so was almost “nose to nose” with him. The victim reacted by raising his arm to make space between his face and the respondent’s face. The victim accepted that in raising his hand he might have made contact with the respondent’s face, leaving a minor scratch. The respondent then forcefully punched the victim, who had remained seated in the vehicle, two or three times through the open driver’s window. He struck the victim in the left eye, causing immediate injury. The victim sought medical treatment at the Queen Elizabeth Hospital. The treating doctor first thought there had been a fracture in the region of his eye. However, it was later determined that no definite fracture could be detected; although there was fluid in the left maxillary antrum. The victim required stitches to a cut near his eye. Photographs taken several weeks after the incident disclosed severe bruising in the area of the left eye. The victim was absent from work for two weeks. He was required to attend the hospital on several occasions for further treatment and assessment.The Proceedings before the Magistrate The prosecutor outlined the allegations of fact and the respondent’s criminal antecedents including, an offence of driving with excess blood alcohol in March 1993, an offence of failing to comply with a direction to submit to an alcotest in March 1996 and offences of loitering and resisting police in March 1998. Counsel for the respondent submitted to the magistrate that the incident the subject of this offending did not arise from a typical road rage episode. It had arisen, it was said, from a perception that the victim was being deliberately obstructive in his manner of driving. Counsel claimed that the respondent had punched the victim only when he thought that the victim had deliberately clawed at him. Counsel further submitted that the respondent was a person of good character, notwithstanding his prior court appearances. References from his employer and others attested to his good character. Counsel said that the respondent was unlikely to offend again, and that in the circumstances the court should proceed without recording a conviction.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Toohey,[9] Olsson J endorsed these remarks when dealing with an appeal involving a common assault: Whilst I agree that the mere fact that the assault under consideration arose in the context of a “road rage” incident cannot properly be resorted to as a justification for elevating an offence of common assault above its inherent gravity, the fact remains that road rage incidents are becoming a matter for serious social concern. The Chief Justice stressed, in Reeves, that the need for general deterrence in such cases does necessitate a stern response. As he put it “A clear message needs to be given to the community that frustration on the road is not to be translated into violence.”[9] [2001] SASC 44 at [22].Section 16 Considerations In the course of the magistrate’s ex tempore sentencing remarks, no reference was made to the authorities concerning road rage incidents or to the important role that deterrence should play in the sentencing process. The absence of any reference to this important consideration suggests that inadequate weight was given to the issue of deterrence in this case. It is to be accepted that the respondent’s criminal antecedents did not of themselves disclose a propensity for violence. His criminal antecedents did however, suggest that he has a problem with behaviour control. The drink-driving offences suggest an inability on the part of the respondent to moderate his behaviour appropriately when driving motor vehicles. The offences of loitering and resisting police suggest an inability to behave appropriately particularly when confronted by police. The present offending is a further example of the inability on the part of the respondent to control his behaviour. The respondent’s antecedents do suggest a problem with behaviour control; and in the circumstances it was inappropriate for the magistrate to conclude that the respondent was unlikely to commit such an offence again. Rather, the indications were that the respondent did require some form of assistance to modify and control his behaviour. As the sentencing remarks referred to earlier demonstrate, the magistrate placed particular weight on the respondent’s age. She reasoned that, because the respondent had reached the age of 32 years without any prior conviction of this nature, this was a factor relevant to the application of section 16. The respondent’s personal antecedents were a relevant factor including his criminal antecedents. It might be suggested that, as a 32-year-old mature adult, he should have been able to cope with the situation without the confrontation that in fact occurred. In the circumstances, the magistrate erred in invoking the jurisdiction conferred by section 16 of the Sentencing Act and in proceeding without recording a conviction. In any event, the penalty imposed was manifestly inadequate. Incidents of road rage have in other cases led to orders for imprisonment and suspended terms of imprisonment. To proceed without recording a conviction and only imposing a modest fine was manifestly inadequate. There is a need for this Court to allow this appeal for the purpose of maintaining adequate sentencing standards. However, this is a Crown appeal, it is appropriate when re-sentencing to impose a sentence at the lower end of the appropriate range. Re-sentencing