Police v Tee - [2005] SASC 402

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v TEE
Judgment of The Honourable Justice Duggan
26 October 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Respondent pleaded guilty to offence of unlawful wounding on the basis of excessive use of force in self-defence - appeal by the Crown against decision of a magistrate to convict the respondent and place him on a good behaviour bond in the amount of $2000 for a period of 18 months - whether sentence manifestly inadequate - consideration of the principles of proportionality in law of self-defence - sentence manifestly inadequate - conviction remains - sentence of magistrate set aside - sentence of 8 months imprisonment imposed - sentence suspended upon respondent entering into bond.
Criminal Law Consolidation Act 1935 s 15, referred to.
Morgan v Coleman (1981) 27 SASR 334, applied.

POLICE v TEE
[2005] SASC 402
Magistrates Appeal

DUGGAN J. The respondent pleaded guilty in the Adelaide Magistrates Court to the offence of unlawful wounding. It was alleged that the offence took place at Darlington on 9 October 2004.
The magistrate was told that, at about 5.00 pm on the day of the offence, the victim, Leith Walsh, went to the Flagstaff Hotel with a friend. At about 9.30 pm he became involved in a brawl with other patrons, including the respondent. According to the police prosecutor, the investigators were unable to ascertain who, if anyone, was the aggressor in the brawl. In any event, the respondent and his friends were ejected from the hotel and Mr Walsh and his friends also left.
The court was informed that Mr Walsh consumed about 10 glasses of beer. However, he drove his vehicle when he left the hotel and, as he drove along Seacombe Road, he saw the respondent and his companions enter the Foodland Shopping Centre. The prosecutor told the court that Mr Walsh said he wanted to “finish off the fight”. Mr Walsh said he went into the supermarket where he saw the respondent at the end of an aisle.
The supermarket supervisor said in his statement that Mr Walsh was screaming angrily “Where are you. You can’t hide. I’m going to smash you. Come here” as he looked up and down the aisles. The supervisor said that he saw Mr Walsh break a barrier gate by hitting it ten to fifteen times. It is not in dispute that, eventually, Mr Walsh punched the respondent hitting him first on the right shoulder and then on the chin. It was then that the respondent stabbed Mr Walsh with a paring knife which he had removed from one of the supermarket shelves. Two or three stab wounds were inflicted. The evidence as to the number of wounds is unclear.
In an affidavit tendered on the hearing of the appeal, defence counsel summarised the respondent’s account of the incident:
I submitted that Mr Tee really went to Foodland to buy some dog food. Both Carter and Silva remained near the front entrance. When Tee was in the store, he selected some dog food and a meat tray. He then heard Walsh yelling out words to the effect, “I’m going to kill you”. Mr Tee then looked for an exit at the back of the store, but couldn’t see anything. He went to another area of the shop near the rear of the store to try and find an exit, but was unable to do so. As he was walking down one of the aisles, he was unable to see Walsh or Jeffrey and started heading toward the front of the store. He grabbed a small pairing [sic] knife while walking down the aisle. He went to go through the exit at the door because he couldn’t see Walsh or Jeffrey. As he came toward the front of the aisle, Walsh came at him and punched him twice. When he first saw Walsh, he was having an altercation with Corey Carter, who is the brother of Tyrone Tee. I informed His Honour that Mr Tee clearly believed that he was defending both himself and his brother when he stabbed the pairing [sic] knife into Mr Walsh.
The respondent’s plea of guilty was entered by him and accepted by the prosecution on the basis that, by reference to the wording of s 15 of the Criminal Law Consolidation Act 1935 he genuinely believed that what he did was necessary in order to defend himself, but that his conduct was not reasonably proportionate to the threat that he genuinely believed to exist. In other words, he acted in self-defence, but used excessive force.
The magistrate recorded a conviction and placed the respondent on a bond to be of good behaviour in the sum of $2000 for a period of 18 months. It was a condition of the bond that, in the event of a breach, he would be brought back to the court to be sentenced for the present offence.
The appellant has argued that the sentence is manifestly inadequate.
In his sentencing remarks the magistrate said:
I have already indicated to counsel that I’ve had great difficulty accepting the defendant’s guilty plea but I am I’m told I must accept it on the basis that the defendant accepts that the grabbing of the knife to protected [sic] himself and the use thereafter, in the circumstances was excessive. Having accepted that I say that I accept and classify it to be on the basis that it is an extremely borderline case of excessive use of self-defence. The defendant was not the instigator of the offence by any stretch of the imagination. He clearly had a defence of self-defence open to him and to at least some extent, he was well within his right to defend himself by grabbing the knife from the shelves. It is important to note that he was not pre armed with a knife before this incident commenced, he grabbed it when he found himself in a situation from which he could not escape.
In my view, these remarks underestimate the seriousness of the respondent’s action in introducing a knife into the altercation. There is little doubt that the actions of the victim entitled the respondent to use a degree of force to defend himself. However, the use of the knife could hardly be described as reasonably proportionate to the threat which the respondent believed existed. The infliction of at least two wounds further illustrates the excessive nature of the response by the respondent to the situation which he faced.
The requirement of proportionality has always been part of the law of self-defence. The practical application of the law was the subject of comment by Wells J in Morgan v Coleman (1981) 27 SASR 334 at 336:
It is both good sense and good law that where a person is subjected to, or genuinely fears, an attack (which may take the form of unarmed violence or the use of a weapon) he may use force to defend himself.
It is both good sense and good law that, for the purposes of his defence, that person may do, but he may only do, what is reasonably necessary for the purpose, having regard to all the circumstances as he genuinely believed them to be at the time. If he does no more than is reasonably necessary in those circumstances, then such force as he employs is justifiable and lawful. If, in those circumstances, force by way of defence is not called for, or if, though some measure of defence is warranted, he plainly oversteps the mark and uses force that is not reasonably necessary, then what he does is unlawful. That is the general rule.
The plea of guilty which was quite properly entered in this case recognises that the respondent’s actions did not constitute a reasonable response to the threat which he believed he faced.
It must be acknowledged that the magistrate’s remarks on sentencing were made ex tempore. However, his comment that he had great difficulty in accepting the plea of guilty and his observation that the case was “an extremely borderline case” of the excessive use of self-defence underestimate the seriousness of the offence. If excessive self-defence measures were taken, as they plainly were in this case, the conduct cannot be excused.
This is not to say that the aggressive conduct by the victim is irrelevant to sentence. It is an important mitigating factor and was, no doubt, a consideration which influenced the prosecution decision not to oppose the suspension of a term of imprisonment before the magistrate and on the hearing of the appeal.
I have had regard to the principles upon which appellate courts will increase sentences and the strictures which those principles impose. However, it is my view that there was insufficient regard to the seriousness of the offence and the importance of deterrence. The respondent has a number of previous convictions including two offences of assault which were committed on the same occasion in 2001. I have reached the conclusion that the sentence imposed was manifestly inadequate.
The order that a conviction be imposed will remain. However, the sentence imposed by the magistrate will be set aside. I impose a sentence of imprisonment for eight months. The sentence will be suspended upon the respondent entering into a bond in the sum of $2000 to be of good behaviour for 18 months.