SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MARK
[2019] SASCFC 48
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Doyle)
9 May 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against a sentence imposed by a judge of the District Court.
The appellant appeals against a sentence of 17 months imprisonment with a non-parole period of eight months for the offence of aggravated assault, and breach of a suspended sentence bond.
The aggravated assault offence involved the appellant punching his domestic partner with a closed fist to the face. At the time, there was an intervention order in place which allowed the appellant and his domestic partner to have contact with each other but with the condition that the appellant not assault, threaten or intimidate her. The appellant entered a guilty plea to that charge and the matter was transferred to the District Court for sentencing with the breached bond and other matters.
The appellant was 22 years of age at the time of the offending and 23 years of age at the time of sentence. The appellant has a history of criminal offending and not complying with court orders however has no prior convictions for assault, aggravated assault or offences of violence.
The judge imposed a sentence of 11 months for the aggravated assault and revoked the suspended sentence and ordered that the six-month sentence that was the subject of the good behaviour bond be served cumulatively on the sentence for the aggravated assault. In fixing sentence for the aggravated assault the judge started with a notional sentence of eighteen months reduced by 30 per cent for the appellant’s plea of guilty and a further one month and 15 days for time served.
There are two grounds of appeal. The first is that the sentence imposed for the aggravated assault is manifestly excessive. The second is that the judge erred in sentencing the appellant on the basis that the offence was committed against a background of previous domestic violence.
Held, per Stanley J (Peek and Doyle JJ agreeing), allowing the appeal, setting aside the sentence imposed and resentencing the appellant:
1. A starting point of 18 months was outside the permissible range of sentences for this offending and this offender.
2. The judge erred in sentencing the appellant on the basis that that offence of aggravated assault was committed against a background of previous domestic violence.
3. The appellant is resentenced to a term of imprisonment of seven months for the offence of aggravated assault. The sentence is to be served cumulatively on the sentence of six months imprisonment for the previous suspended sentence resulting in a total sentence of 13 months. A non-parole period of eight months is fixed. The head sentence and non-parole period are backdated to 19 May 2018.
Criminal Law Consolidation Act 1935 (SA) s…
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CaseChat Overview and Summary
The primary legal issue before the court was whether the sentencing judge erred in imposing a sentence that was outside the permissible range for the offence of aggravated assault, considering both the offending conduct and the offender's history. This involved determining the appropriate starting point for sentencing, the weight to be given to factors such as the impulsivity of the assault, the absence of weapons or serious injury, and the significance of general and specific deterrence, especially in the context of domestic violence and the breach of an intervention order.
The court reasoned that while certain mitigating factors were present, such as the single strike nature of the assault and the lack of severe injury, the offence remained serious due to its potential for fatal consequences. The court emphasised the critical importance of deterrence in domestic violence cases, citing previous authorities that highlight the need for condign punishment to discourage similar conduct and uphold the community's expectation of protection for vulnerable individuals. The fact that the assault occurred in breach of an intervention order was considered an aggravating factor, underscoring the gravity of violating legal protections designed to ensure a victim's safety. The court found that the sentencing judge was correct in imposing an immediate term of imprisonment, given the appellant's criminal history and poor compliance with previous court orders.
Allowing the appeal, the court set aside the original sentence. The appellant was resentenced to seven months imprisonment for the aggravated assault, to be served cumulatively on a previous six-month suspended sentence, resulting in a total term of 13 months imprisonment. A non-parole period of eight months was fixed, backdated to 19 May 2018.
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
Ratio Decidendi
Legal Principle Established
The maximum penalty for the offence of aggravated assault pursuant to s 20 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) is three years imprisonment. Consideration Ms Sibree, counsel for the appellant, submits that this offence was at the lower end of the scale of seriousness. It was impulsive and constituted of a single strike, rather than an ongoing course of conduct. There were no weapons used or children present. The victim did not require medical treatment. There was no evidence of ongoing injury. Those factors can be accepted but I reject the submission that the offence was at the lower end of the scale of seriousness. What occurred here was a single punch to the face. That is a serious assault. The courts are very conscious that such an assault could have fatal consequences. In my view the sentencing judge was correct in considering that this offence required an immediate term of imprisonment. The appellant’s previous criminal history and his poor compliance with bonds and court orders made that inevitable. At issue is whether a starting point of 18 months for a first offence of violence resulted in a sentence that was outside the permissible range for this offending and this offender. This Court has recognised on numerous occasions the particular importance of both specific and general deterrence in sentencing for offences of domestic violence.[11] In R v Nedza[12] Nicholson J said:[13][W]here offending of this nature occurs in the context of domestic violence, both personal and general deterrence must play a significant role in the sentencing process. Domestic violence is all too frequent in our society and so often occurs in secret or goes unreported. Where the authorities do become aware of domestic violence it must be met with condign punishment. It also is important that the opportunity be taken to bring home to others who might be like minded that the courts will not tolerate domestic violence, particularly where, as is typical, it is meted out to physically weaker or defenceless children and women.[11] See R v Lennon [2003] SASC 337 at [12] (2003) 86 SASR 295 at 297; R v Wilkinson [2008] SASC 172 at [28], (2008) 101 SASR 21 at 27; R v Postolovski [2016] SASCFC 69 at [50]; R v Nelson [2017] SASCFC 40 at [44], (2017) 266 A Crim R 121 at 130-131. [12] [2013] SASCFC 142.[13] [2013] SASCFC 142 at [87]. In this case the offending is rendered more serious because it was committed in the face of an intervention order intended to provide the victim with protection from the very assault that occurred. I repeat what I said in R v Saunders.[14] The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection. If that protection is to be effective and orders of the court or conditions in bail agreements not to be mere scraps of paper, the court must impose punishments for the breach of those orders or agreements which will deter those who contravene the orders or agreements and others who might be minded to do so from offending in that way.[Citation omitted].[14] [2017] SASCFC 86 at [27].