R v Rogers and Sayner No. Sccrm-98-245, Sccrm-98-246 Judgment No. S145

R v ROGERS AND SAYNER
[1999] SASC 145

Court of Criminal Appeal: Millhouse, Prior and Duggan JJ

PRIOR J: The appellants were sentenced in the District Court to six months' imprisonment upon their pleas of guilty to a charge of assault occasioning actual bodily harm. In this appeal they both claim that the sentence imposed was manifestly excessive in that the sentencing judge erred in failing to suspend the period of imprisonment imposed upon each of them.
The victim of the assault was one Ronald James Harpin. The admitted offence was committed on 12 December 1997 at Port Pirie. The appellant Rogers was said to have been caught in the cross fire of a long standing matrimonial dispute he knew nothing about. The appellant Sayner believed the victim to have been having an affair with his defacto. Rogers admitted becoming involved after wanting to go and sort out the situation between the two other men after he had been told by Sayner that threats had been made towards him and his family by Harpin who was just up the road from where Rogers saw Sayner 'stressed out'.
Rogers suggested that he and Sayner go and sort it out. Rogers walked down the street where Harpin was sitting on a porch in a chair. Rogers' version of events was that when Rogers asked Harpin what was going on, Harpin replied by threatening to kill Sayner, his family, his children and Rogers as well. Rogers said Harpin grabbed a chair, trying to hit him over the head with it. Rogers slipped over and was hit by the chair. Harpin grabbed a second chair, trying to hit Rogers again. By this time Sayner was on the scene. A brawl resulted between the three. A number of other persons arrived, Sayner telling them to stay out of it as it was a personal family problem. Rogers and Sayner left the scene in Rogers' car.
Harpin's injuries were serious. He claimed that Rogers punched him several times in the head and then kicked him in the left upper leg, causing him to fall to the ground with Sayner then jumping on him, grabbing him by the hair and punching him in the head whilst Sayner kicked him in the legs and shins and then in the head again. Harpin says that Rogers hit him with steel chairs and a table before picking up a lounge chair and hitting him with that. The chair broke. Harpin was hit on the shins and legs with this whilst Sayner had hold of his throat and was punching him in the head. Harpin sustained a two inch laceration in the forehead. This required stitches. He also sustained swelling to the left side of the temple area, lacerations and abrasions to both cheeks and nose, a fractured cheek and jawbone, loosened teeth, lacerations to both forearms, abrasions to both elbows, swelling, lacerations and abrasions to both legs and a three inch laceration of the right foot which required five stitches. Stitches were also required for the lacerations to the forearms and his cheeks besides that already mentioned to the forehead.
The submission put to the sentencing judge by Rogers' counsel was that Rogers knew nothing about Harpin and was not expecting a fight when he simply went to confront him and sort out what was going on. The exchange was the result of a lot of provocative language with things escalating into a quite vicious attack as a result of Sayner's intervention.
The appellant Rogers was described by the sentencing judge as a hard-working, responsible man supporting a defacto wife and two children. The defacto wife was pregnant with the child due to be born within three months of the sentencing submissions. Rogers' behaviour on the occasion the subject of the charge was described as being out of character. He had but four previous appearances before courts. They were in 1989, 1990, 1991 and 1994. On each of those occasions he was fined for offences of damaging property, disorderly behaviour, driving under the influence and possessing cannabis. Neither Rogers nor Sayner had any past history of violent offending. The sentencing judge took the view that neither had any relevant previous convictions.
As for Sayner, his counsel told the sentencing judge of the background to the offence, particularly the history of the relationship between Sayner and Harpin who had begun a relationship with Sayner's former defacto after that relationship broke down. It was put that that breakdown had a lot to do with Mr Harpin who was introduced to Sayner and his former defacto some two years before. Sayner invited Harpin to rent a small unit over the premises where he and his defacto lived. Towards the end of 1996 and in the beginning of 1997, Sayner was concerned about Harpin's behaviour towards Sayner's defacto. Sayner moved out urging Harpin to do the same. Sayner went to Sydney. Harpin moved out. When he returned to Port Pirie Sayner sought some reconciliation with his defacto. He was troubled by rumours that Harpin and Sayner's former defacto were now themselves involved in a relationship. Verbal exchanges occurred with Harpin, sometimes in public places. Sayner went off to do work at Andamooka whilst still pursuing reconciliation with his former defacto. When returning to Port Pirie at weekends, he maintained suspicions about his defacto's relationship with Harpin because of a number of telephone calls. He urged his defacto to stop these contacts with Harpin. His defacto and her children came to Andamooka on occasions to see Sayner. When he came back to Port Pirie for a particular job, Sayner's car required repairs. Rogers suggested where it would be repaired by a friend of his. Whilst waiting to collect the vehicle Sayner went for a walk and noticed Harpin sitting on the verandah of the premises Sayner previously occupied with his defacto. He challenged Harpin about this and challenged him about having a continuing relationship with his defacto and being the cause of continuing difficulties in that relationship. Harpin told Sayner to leave. He did leave. When he got back to where he was to collect his car, he appeared agitated and upset. This Rogers noticed. Sayner told Rogers of threats to him, his wife and family. This prompted Rogers to proceed in the way already described.
The sentencing judge was told that Sayner was not expecting what occurred to occur. He simply followed Rogers back to the premises where Harpin was. The assault was not premeditated. The attack on Harpin was accepted to be vicious. Sayner accepted that he should have walked away and that the actions he took in coming to Rogers' aid were excessive. As a result of the assault, the relationship with Sayner's defacto has not improved. He assumes financial responsibility for her and her children. As with Rogers it was put on Sayner's behalf that he is not a man of any propensity for violence. He was not likely to reoffend in this way again. The trial judge was urged to consider suspending any sentence of imprisonment.
There was some debate before the sentencing judge about differences in the statements before the court. The prosecutor had acknowledged differences between the victim and the offenders with respect to the events leading up to the assault. The prosecutor said that whilst he could not concede the incident started as counsel for the appellants had put it, the sentencing judge should view the attack upon Harpin as serious given that it was he who was in his own home and that the two appellants were the instigators of this particular incident whatever the background to it was. It was put that there was no need for either or both of them to go to Harpin's place at all. The prosecutor said he did not ask for a disputed facts hearing. His words were that it would be 'really rather academic'. The fact was that the appellants were intruders and that they 'sought out the incident'. The prosecutor said he took a 'strictly neutral attitude', neither supporting nor opposing the application for suspended sentences.
In this court, reference has been made to a decision in this court, R v Perre.[1] It seems that the statements made by members of the court in that case may well have been overlooked by the parties and the judge in this case.
[1] (1986) 41 SASR 105 at 105 and 106
The sentencing judge adjourned briefly before imposing the sentence against the submissions put to him. In his sentencing remarks, the sentencing judge assumed that Harpin struck Rogers first notwithstanding the different version of events contained in Harpin's statement. In referring to the injuries sustained by the victim, the sentencing judge noticed that the victim claimed to require facial plastic surgery for the two and a half inch scar on his face. He also referred to a muscle being dead where he had been kicked and depression continuing for some four months. The sentencing judge described the events as cowardly and unprovoked in any real sense and serious. I reject the submissions put in the course of argument before us that his Honour was wrong in so describing the offence.
His Honour agreed with the description of one of the appellant's counsel that the offence was vicious and callous. He said that he proceeded to sentence the appellants on the basis that they were near Harpin's premises that day quite coincidentally having attended at premises nearby for the purpose of picking up Rogers' car. His Honour acknowledged that there was a long history of animosity between Harpin and Sayner about which Rogers was unaware. Imposing sentences of imprisonment for six months the sentencing judge said he allowed a third discount because of the pleas of guilty. His Honour then said:
“Upon this difficult question of whether the service of those sentences should be suspended, in all of the circumstances, and having given the submissions made on your behalf earnest consideration, I do not consider that your service of those sentences should be suspended. In my view your offence was much too serious for that to be done. You must therefore now serve those sentences.”
If those brief remarks had stood alone it could be said that the sentencing judge erred in that he approached the matter “with a preconceived view that (this) particular offence ... (could) only properly be met by an immediate custodial term of imprisonment.”[2] Equally, it might be said that it was appropriate to give these offenders “a last chance to avoid imprisonment by leading a law abiding life.”[3] Whilst there was some basis upon which good reason to suspend the sentences imposed could be found given the view of the facts taken by the sentencing judge as to the initial behaviour of the victim and when one also takes into account the appellant's personal circumstances, the fact that the assault was not one of premeditated thuggery, the pleas of guilty, their remorse and employment, it remains to be said that this court cannot say that the sentencing judge has erred in his failure to find good reason to suspend the sentences.[4] I would therefore dismiss these appeals.
[2]      R v Wacyk (1996) 66 SASR 530 at 535, per Perry J
[3]      R v Buckman (1988) 47 SASR 303 at 304 per King CJ
[4]      Birch v Fitzgerald (1975) 11 SASR 114 at 115 and 117, per Bray CJ
MILLHOUSE J: I agree.
DUGGAN J: I agree that the appeal should be dismissed for the reasons given by Prior J.
MILLHOUSE J: The order of the court, therefore, is appeal is dismissed. Bench warrants to issue but lie for 48 hours to enable the appellants to resume their sentences.

[1999] SASC 145

15 February 1999