Police v Topia

Case [2017] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v TOPIA

[2017] SASC 119

Judgment of The Honourable Justice Peek

15 August 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING STATISTICS, SCHEDULES, TARIFFS, COMPARISONS, ETC

Appeal against sentence for aggravated assault and aggravated assault causing harm.

The appellant committed the offences of aggravated assault and aggravated assault causing harm against two prison officers acting in the course of their duty, contrary to s 20(1) and s 20(4) of the Criminal Law Consolidation Act 1935 respectively. One of the prison officers sustained significant injuries which required multiple surgeries and resulted in permanent loss of movement in her left lower eyelid.

At the time of this offending, the appellant was in custody in relation to other violent offending (for which he was ultimately sentenced in the District Court).

A Magistrate sentenced the appellant to a single sentence of two years and six months imprisonment after discount for guilty plea, served cumulatively upon his District Court sentence. His non-parole period was extended by one year and eight months.

The appellant appealed on the sole ground that the sentence was manifestly excessive.

Held (granting an extension of time, dismissing the appeal):

(1)     Having regard to the seriousness of the offending, the minimal mitigatory circumstances, the maximum penalty prescribed for the offences, and the standards of sentence customarily observed for similar offending, the sentence imposed was within the range open to the Magistrate.

(2) Comparisons with sentences passed for offending contrary to the now repealed s 40 (assault occasioning harm), such as Higgins v Fricker (1992) 63 A Crim R 473, are to be treated with caution in light of the substantial legislative changes which accompanied that repeal.

Criminal Law Consolidation Act 1935 ss 20, 23, 24, 40; Criminal Law (Sentencing) Act 1988 s 18A; Supreme Court Civil Rules 2006 s 281; Statutes Amendment and Repeal (Aggravated Offices) Act 2005 s 10, referred to.
The Queen v Morse (1979) 23 SASR 98, applied.
Police v Warren [2000] SASC 285; Hilli v The Queen (2010) 242 CLR 520; Higgins v Fricker (1992) 63 A Crim R 473; Coulter v The Queen (1988) 164 CLR 350; Markarian v The Queen (2005) 228 CLR 357; O'Neil v South Australian Police (Unreported, Supreme Court of South Australia, 16 May 1996); R v Davis (Unreported, Supreme Court of South Australia, 16 May 1996), discussed.
Crotty v Police [2008] SASC 308; Pick v Police [2013] SASC 184; Cole v Police [2015] SASC 83; R v Rowe [2015] SASCFC 124; Turner v Police [2016] SASC 91; House v The King (1936) 55 CLR 499, considered.

POLICE v TOPIA
[2017] SASC 119

Magistrates Appeal

  1. PEEK J.    Appeal against sentence – aggravated assault and aggravated assault causing harm.

    Introduction

  2. On 10 January 2014, the appellant committed the offences of aggravated…

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Police v Topia [2017] SASC 119
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[2017] SASC 119
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CaseChat Overview and Summary

The case of Police v Topia involved the appellant, who was challenging the sentence imposed on him for assaulting a prison officer. The appellant argued that the sentence was excessive and that it should be reduced in light of certain mitigating factors. The court was tasked with determining whether the sentence was appropriate, considering the circumstances of the offence and the relevant legal principles. The primary legal issue was whether the sentence imposed was manifestly excessive and whether the court had appropriately considered the principles of sentencing, including general deterrence and the need to protect prison officers.

The court examined the principles of sentencing in cases involving assaults on prison officers, referencing previous cases that emphasised the importance of protecting prison officers and the need for general deterrence. It noted that the maximum penalties for such offences had changed over time, reflecting a shift in the legal framework and the seriousness attributed to these offences. The court also highlighted the importance of considering the specific circumstances of each case, including the nature of the offending, the harm caused, and the personal circumstances of the offender. In this case, the court found that the appellant's actions were particularly egregious, given the nature of the assault and the vulnerability of the victim, a prison officer. The court concluded that the sentence imposed was appropriate, taking into account the principles of sentencing and the need to protect prison officers.

In conclusion, the court upheld the sentence imposed on the appellant, finding that it was neither manifestly excessive nor inappropriate. The court emphasised the importance of protecting prison officers and the need for general deterrence in cases of assault on prison officers. The appellant's challenge to the sentence was dismissed, and the original sentence was confirmed as appropriate under the circumstances.

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

PEEK J
In the present case, counsel for the appellant drew the Court’s attention to a number of sentences imposed in relation to assaults on prison officers, both at first instance and on appeal; I have had regard to them. However, there are a number of self-evident factors distinguishing them from the present case, including but not limited to: the offences charged, the number of counts, the number of victims, the seriousness of the offending vis-a-vis the harm caused, whether the harm occurred in the course of a struggle, whether there was any provocative behaviour by the victim, the relative criminal histories of the offenders, and the mitigating personal circumstances of the defendant in those cases such as histories of physical or sexual abuse, mental illness, ill health or a death in the family.The 1992 Full Court decision of Higgins v Fricker The appellant placed great emphasis on the 1992 Full Court decision of Higgins v Fricker.[14] The appellant there was serving a life sentence and pleaded guilty to the offence of assault occasioning actual bodily harm for which the maximum penalty was then five years imprisonment. The facts were as follows:[15]On Sunday, 14th April 1991 the appellant assaulted a correctional services officer at G Division of the Prison. The officer and another officer were escorting the appellant to an exercise yard when he punched the officer in the left side of the face causing injuries. The appellant was then restrained by the two officers. In consequence of the assault the officer suffered a badly bruised left eye, laceration of the left eyebrow and a fracture of the upper left cheek bone requiring treatment in hospital. The lids of the eye remained closed for a time and the injuries caused considerable pain.[14] (1992) 63 A Crim R 473.[15] Ibid, 474 (Mullighan J). The circumstances surrounding the offending were as follows:The learned Special Magistrate accepted that the appellant perceived that the correctional services officer had it in for him and wished to fight him although he was not prepared to accept that such was, in fact, the case. The officer made some comment to the appellant some days before the assault which is said to have caused the appellant to have that impression. The appellant complained to the Ombudsman but that complaint was not resolved before the assault. The learned Special Magistrate found that the appellant decided to resolve the matter by assaulting the officer. The evidence in support of that conclusion is that the appellant was detained in G Division of the Prison and the officer worked in that division for some months prior to the assault. There were many altercations between the appellant and the officer. A few days before the assault the appellant said to the officer words to the effect that he did not think that he was worth $20,000. The suggestion is that this remark meant that the appellant was not going to assault the officer because he did not think he was worth it. Although the officer did not accept that he took it that way, he responded by saying to the appellant, “Don’t put your aspirations before your capability”. It is difficult to see how this evidence justifies the conclusion that the appellant perceived that the officer wanted to fight him. However, it was not suggested on this appeal that there should be a different basis for sentencing.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

I consider that the lesser maximum penalties for s 20(4) offences as opposed to that previously provided by the repealed s 40 are reflective of the fact that s 23 and s 24 now deal with offences displaying a higher degree of moral culpability, leaving s 20(4) with less work to do than the repealed s 40. Put simply, the older cases such as Fricker are to be viewed very much in light of the fact that the previous maximum five year sentence provided for by the repealed s 40 was reserved for the most serious form of assaults occasioning harm: those in which serious harm was caused intentionally. The maximum penalty “yardstick” now applicable under s 20(4) applies to offending with a very much narrower spectrum of both subjective and objective seriousness than that previously applying to offences contrary to the repealed s 40; consequently, the older authorities decided in the context of a different pattern of legislation are of quite limited assistance and certainly do not establish the outer limits of the appropriate range of sentencing on the facts presently before the Court. Consideration It is well established that offences against members of the police force and correctional services officers are a serious class of offending requiring particular emphasis to be placed on general deterrence. In Higgins v Fricker, Mullighan J stated:[22]The courts have long recognised the need to do what they can to protect persons who, by reason of their duties, are at risk of assault … Obviously there is a need to afford protection to correctional services officers. In my view there is no reason to regard the victim of this assault differently … The learned judge was justified in having regard to the need to deter other prisoners who are minded to behave in a similar manner.[22] (1992) 63 A Crim R 473. And in O’Neil v South Australian Police, Prior J stated:[23]He, and others, must be alerted to the hope and expectation that peace should prevail in prisons, and that any attacks upon prison officers by prisoners will be treated seriously, with concern, and with the principles of general deterrence paramount to the exercise of sentencing discretions. The courts must do what they can to protect prison officers.[23] (Unreported, Supreme Court of South Australia, 16 May 1996), 2-3. And in R v Davis, Wood J stated:[24]The maintenance of discipline within corrective institutions is a matter of very great importance. The potential for substantial damage to public property and for serious physical harm both to prison officers and other inmates, as a result of breaches of gaol discipline, is considerable, particularly in circumstances of unrest or dissatisfaction over matters of policy. It is a consequence of that fact that sentences for offenders involving attacks on prison officers in the execution of their duty must involve, as a significant component, both personal and general deterrence.[24] (Unreported, New South Wales Court of Criminal Appeal, 4 February 1994), 3-4 (Gleeson CJ and Meagher JA agreed).The seriousness of the offence(s) committed when compared to other offences of its kind