R v BLUNT No. SCCRM-98-26 Judgment No. S6736

[1998] SASC 6736

R  v  BLUNT

Court of Criminal Appeal
Coram:  Perry, Williams and Bleby JJ

Perry J   (ex tempore)

The appellant appeals against the sentence imposed upon her in the District Court following her conviction of assault occasioning actual bodily harm.

Initially she was charged in the District Court on an information which alleged in count 1 that, jointly with another person, Stephen Pritchard, on 14 January 1996, she assaulted another woman, whom I will call Ms M, occasioning her actual bodily harm.  Count 2 alleged robbery with violence which was said to have occurred on the same occasion, and which involved the theft of Ms M's pension benefit card and a small amount of money.

The appellant was tried separately from Pritchard.  The jury found her guilty of the assault count but acquitted her of robbery with violence.

By the time she was sentenced the appellant had spent some six months in custody.  It was agreed between counsel that of that time about three and a half months in custody was referable to the charge of assault, the remaining time having been served with respect to an unrelated matter.

After taking into account the time spent in custody the learned trial judge sentenced the appellant to imprisonment for two years and six months.  Against that he set a non-parole period of six months.  He then proceeded to suspend the sentence upon the entry by the appellant into an 18 month good behaviour bond, subject to conditions which included supervision by a probation officer and counselling.

There is one ground of appeal only, namely that in all the circumstances the head sentence of two and a half years is manifestly excessive.  There is no appeal against the non-parole period.

At the time she was sentenced the appellant was aged 32 years.  She had a history of relatively minor offences recorded over the previous 10 years or so.  These included some alcohol and substance related offences, and convictions for breaking, entering, and larceny.

The appellant and Ms M had known each other for about eight years.  At one stage they had a sexual relationship.   However, at the time of the offence in question Ms M was living with a man at the address at which the appellant had resided for about a month.

Relations between Ms M and the appellant deteriorated.  They had arguments which culminated in a decision by the appellant to move in with another man who lived in a nearby house.  That man was the co-accused Pritchard.  She was in the process of moving her belongings to Pritchard's house when, on the evening in question, she returned with Pritchard to Ms M's house, on which occasion the offence took place.

The assault was particularly violent.  Pritchard took hold of Ms M and dragged her into the bedroom, where he and the appellant began punching Ms M in the face.  Pritchard then held Ms M down, while the appellant kicked her in the body several times.  She was then pulled on to her feet by the hair, forced against a wardrobe, and punched once again in the face.  Following that she was pulled down again and they both began kicking and kneeing her in the face and body.  The appellant sprayed aerosol in her eyes and both the assailants abused and swore at her.

The appellant and Pritchard then dragged Ms M into the kitchen of the house.  Pritchard held her down on her stomach, while the appellant cut off the back of her hair.   This was about two feet long and was plaited into a tail.  Ms M was struck again before the others left the house.

The victim was taken to Queen Elizabeth Hospital, where she was treated for multiple abrasions and bruises in and around the face and head, together with bruises and abrasions over various other parts of her body.  X-rays disclosed two fractures of her nose.

That account of her injuries is confirmed by a victim impact statement, which was tender before the learned trial judge.  But he was not supplied with any information as to whether or not the injuries left any residual disability.

The learned trial judge also had before him for the purpose of sentencing a pre-sentence report, together with a report prepared by a psychologist Dr Fugler.  This material confirmed that the appellant had an unfortunate upbringing, having been placed in the care of her grandparents at an early age.  She suffered sexual abuse as a child and gravitated to drug and alcohol abuse, associated with petty crime.  It appears that on previous occasions when she had been released on a bond under supervision she had performed reasonably well.

Pritchard was tried separately.  The court has been informed that in the course of his trial, a finding was made that he was unfit to stand trial, having regard to his mental incompetence.  It appears that Mr Pritchard was dealt with a few days ago and, under the relevant provisions of the Criminal Law Consolidation Act, was made the subject of a limiting term of two years.  Clearly, no comparison can be made between a limiting term imposed in those circumstances and the sentence now under review.  Mr Stokes, for the appellant, conceded as much and did not attempt to make any comparison.

During the course of sentencing the learned trial judge observed:

“Your actions were very much out of control.  There may be many reasons why they were.  You may well have been affected by alcohol or drug taking.  However, they were very poor actions and, clearly, this woman was, to say the least, upset by your aggressive stance towards her, including the cutting off of her hair.”

He went on to observe that the appellant had an unfortunate background.  He continued:

“This was a very poor patch in your life at this stage.  It may well be because of your addiction problems and the friends you were mixing with at that time, but it certainly had its effect on you.  However, I am conscious that now you are endeavouring to get on with your life and lead a proper life as a responsible person and mother.”

He then proceeded to impose the sentence under review.

Mr Stokes has put everything which could be argued in support of the appeal.  He submitted that while taking into account in fixing the non-parole period the period of three and a half months in custody, it does not appear that the learned sentencing judge made a similar allowance in the fixation of the head sentence.  But the learned sentencing judge clearly had in mind the period already spent in custody, and must be taken to have made allowance for it with respect to the head sentence.

Mr Stokes argued that the head sentence was simply too high.  In developing that submission he made reference to several other decisions, in which he submitted lesser sentences had been imposed for sentences at least as serious as this.

In my opinion, no great reliance can be imposed upon sentences accorded to other offenders in cases of this kind.  There are invariably differences in the factual background and in the personal circumstances of the offenders.

The maximum sentence for this offence is five years.  The question whether the sentence under review is too high, and in particular the head sentence, is to be determined principally by reference to the maximum sentence set out in the statute.

It must certainly be conceded that the sentence is substantial.  But in my opinion, even allowing for all of the matters that have been put forward by Mr Stokes, it could not be said that the sentence was outside the range of penalties which could have been imposed for this offence.

As I have said, it was a serious assault with nothing to be said for the appellant that could amount to circumstances of mitigation.   There was no discount to be given for a plea, the appellant having taken the matter to trial.  In my opinion it simply cannot be said that the sentence imposed was manifestly excessive.

I would dismiss the appeal.

WILLIAMS J:  I agree that the appeal should be dismissed for the reasons given by Perry J.

BLEBY J:  I also agree.

PERRY J:  The order of the Court is that the appeal be dismissed.