Police v MORRIS - [2012] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MORRIS
[2012] SASC 82
Judgment of The Honourable Justice White
29 May 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
Respondent convicted by Magistrate of assasult - fined $200 and ordered to pay levies and costs totalling $2,300 - no conviction recorded.
Crown appeal against sentence - whether sentence manifestly inadequate - whether Magistrate erred in not recording a conviction - whether assault more serious because of previous antipathy between respondent and victim - whether Magistrate failed to take account of absence of contrition on part of respondent - whether sentence failed appropriately to reflect elements of personal and general deterrence - whether Magistrate erred in concluding that respondent unlikely to reoffend.
Held: appeal dismissed - sentence not manifestly inadequate - Magistrate did not err in not recording a conviction - assault not more serious because of previous antipathy between respondent and victim - Magistrate did not fail to take account of absence of contrition on part of respondent - overall sentence reflected the elements of personal and general deterrence sufficiently - Magistrate did not err in concluding that respondent unlikely to reoffend.
Criminal Law Consolidation Act 1935 (SA) s 20; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Birch v Fitzgerald (1975) 11 SASR 114; Grzybek v Police [2008] SASC 161, considered.

POLICE v MORRIS
[2012] SASC 82
Magistrates Appeal

WHITE J: Following a six day trial, a Magistrate found the respondent guilty of assault.[1] However, the Magistrate found good reason not to record a conviction. He imposed a fine of $200 and ordered the respondent to pay levies and costs totalling $2,300.
[1] Criminal Law Consolidation Act 1935 (SA) s 20(3).
The Police now appeal against that sentence, contending that it is manifestly inadequate, and that a conviction should have been recorded.
The circumstances of the offence
On 16 August 2009, the Under 14 teams of the St Augustine’s Soccer Club and the Ingle Farm Soccer Club played each other. The respondent was the coach of the St Augustine team and his son, CM, was a player on the team.
During the game, CM was struck by an unknown Ingle Farm opponent. The referee called the respondent to attend to his son. Unfortunately, the respondent did not confine himself to attending to CM, and engaged in an unpleasant exchange with the referee. This led to him being ordered off the pitch and dismissed from the game. This meant that the respondent had to vacate the coach’s box.
The respondent then called on the St Augustine team to stage a walk out, but this was resisted by team members and their parents. He then started to walk to his car. In doing so, he had to walk past a group of Ingle Farm parents who included the victim of his assault, Mr Klappers.…

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

Case: [2012] SASC 82
Decision Date: 29 May 2012

CaseChat Overview and Summary

The matter of Police v Morris involved the respondent, Morris, who was convicted of assault by a Magistrate. The Crown, represented by the Police, appealed the sentence imposed on Morris. The appeal focused on whether the sentence was manifestly inadequate, whether the Magistrate erred in not recording a conviction, and if the sentence failed to adequately reflect elements of personal and general deterrence. Additionally, the appeal questioned whether the Magistrate correctly assessed the likelihood of Morris reoffending.

The appeal raised several legal issues, including whether the Magistrate erred in not recording a conviction, whether the assault was more serious due to previous antipathy between Morris and the victim, whether the Magistrate failed to consider Morris's lack of contrition, whether the sentence appropriately reflected the principles of personal and general deterrence, and whether the Magistrate correctly assessed the likelihood of Morris reoffending. The Crown argued that the Magistrate had overlooked the significance of the previous antipathy between Morris and the victim, failed to consider Morris's lack of remorse, and that the sentence was too lenient.

The Court examined the reasoning behind the Magistrate's decision. It found that the sentence was not manifestly inadequate and that the Magistrate did not err in not recording a conviction, as Morris was unlikely to reoffend and his personal circumstances justified this decision. The Court held that the previous antipathy between Morris and the victim did not make the assault more serious, as there was no suggestion of premeditation. The Magistrate's decision not to record a conviction was upheld as Morris's conduct, though inappropriate, was not indicative of a significant risk of reoffending. The Court also found that the Magistrate adequately considered the principles of personal and general deterrence in imposing the sentence.

The Court concluded that the appeal should be dismissed, affirming the Magistrate's sentencing decision. The Magistrate's assessment of Morris's likelihood to reoffend was deemed correct, and the overall sentence was found to sufficiently reflect the principles of personal and general deterrence. The Magistrate's decision not to record a conviction was upheld, considering Morris's personal circumstances and the nature of the offence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considered as a whole, the incident does not reflect well on the respondent and the particular Ingle Farm parents and supporters in relation to what was, after all, a game of Sunday morning underage soccer. The sentencing decision The maximum penalty for the offence is imprisonment for two years.[2][2] Criminal Law Consolidation Act 1935 (SA) s 20(3)(a). The Magistrate referred to the respondent’s position of responsibility and influence in relation to an underage soccer team. He considered that the respondent had modelled poor conduct to those in his charge, saying that this made the offence more serious. The respondent is 38 years old, in regular employment and is the sole income provider for his wife and five children. He has no previous convictions at all, and otherwise is of good character. The Magistrate considered that his ten years as coach to underage teams and the positions he has held as an officer in the St Augustine’s Soccer Club were to his credit. The Magistrate invoked s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“CLSA”) which provides: 16—Imposition of penalty without convictionWhere a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—(a) that the defendant is unlikely to commit such an offence again; and(b) that, having regard to—(i)the character, antecedents, age or physical or mental condition of the defendant; or(ii) the fact that the offence was trifling; or(iii) any other extenuating circumstances,good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction. As can be seen, s 16 empowers a court in defined circumstances to impose a penalty without recording a conviction. The court must be considering the imposition of a fine or a sentence of community service (or both), be satisfied that the defendant is unlikely to commit the offence again, and be satisfied that there is good reason, having regard to the personal circumstances of the defendant, the trifling nature of the offence, and any extenuating circumstances, to refrain from recording a conviction. The Magistrate considered it unlikely that the appellant would commit an offence of assault again, and that his personal circumstances justified him not recording a conviction. Consideration of Appeal The Police contend that the Magistrate’s approach to the fixation of the fine and the decision not to record a conviction was affected a number of errors, which I will discuss in turn.Previous Antipathy between the Respondent and the Victim The appellant accepted that the respondent’s assault, considered by itself, could be regarded as a relatively isolated act, attributable to the respondent’s emotional response to the injustice which he perceived had been done to his son and to the subsequent conduct of the Ingle Farm supporters. It contended, however, that the conduct had a more serious character because of a history of antipathy between the respondent and his victim. Mr Klapper had previously replaced the respondent as Chairman of the St Augustine’s Soccer Club and, in other respects, it seems that their relationship was marked by dislike.

Ratio Decidendi

Legal Principle Established

The Magistrate considered it unlikely that the appellant would commit an offence of assault again, and that his personal circumstances justified him not recording a conviction. Consideration of Appeal The Police contend that the Magistrate’s approach to the fixation of the fine and the decision not to record a conviction was affected a number of errors, which I will discuss in turn.Previous Antipathy between the Respondent and the Victim The appellant accepted that the respondent’s assault, considered by itself, could be regarded as a relatively isolated act, attributable to the respondent’s emotional response to the injustice which he perceived had been done to his son and to the subsequent conduct of the Ingle Farm supporters. It contended, however, that the conduct had a more serious character because of a history of antipathy between the respondent and his victim. Mr Klapper had previously replaced the respondent as Chairman of the St Augustine’s Soccer Club and, in other respects, it seems that their relationship was marked by dislike. The appellant submitted that the previous antipathy meant that the respondent’s assault was “significantly more targetted” than may otherwise appear. Instead of the respondent’s conduct being an unfocussed loss of control, he had deliberately chosen to vent his anger on this particular victim. The Magistrate had overlooked this feature of the assault and had, so it was submitted, thereby erred in the sentencing decision. I do not accept this submission. The pre‑existing antipathy between the respondent and the victim helps explain, without excusing, the respondent’s conduct. It assists in understanding why the respondent selected the victim amongst the group of Ingle Farm supporters as the target of his assault. However, there is no suggestion that the assault was premeditated, or that the respondent took advantage of the circumstances to effect some form of revenge or retribution on the victim. Further, and in any event, assaults which are random and unpredictable are often more serious. That is because they can be more frightening for an innocent and unsuspecting victim.Absence of Expression of Contrition The appellant contended that the Magistrate had failed to take into account the absence of any expression of remorse or contrition by the respondent, pointing out that the Magistrate had not referred to this feature of the case at all and submitting that the leniency of the sentence imposed was in itself evidence of such a failure by the Magistrate. The submission was that even if a fine of $200 without a conviction may have been appropriate following a plea of guilty with expressions of contrition, it was inappropriate in the respondent’s case. It is true that the Magistrate did not refer expressly to the absence of any expression of remorse or contrition. However, I do not consider that the Magistrate overlooked this aspect of the case. The Magistrate referred to, and rejected, the attempt by the respondent during his evidence in the trial to portray himself as the maligned party subject to insult and taunts, and reacting to an injustice to his son which had not been addressed on the pitch.