R v Savcic - [2014] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Permission to Appeal)
R v SAVCIC
[2014] SASC 38
Judgment of The Honourable Justice Sulan
19 March 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES
Application for permission to appeal against sentence. The applicant, Aaron Savcic, was found guilty by jury verdict of the offence of causing serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to five years and six months' imprisonment with a non-parole period of three years and six months' imprisonment.
Held:
(1) It was open to the sentencing Judge to sentence the applicant on the basis that he was the aggressor and that his conduct was not self-defence, excessive or otherwise.
(2) It is not reasonably arguable that error has been demonstrated or that the sentence is manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 23(1), referred to.

R v SAVCIC
[2014] SASC 38
Criminal: Application for Permission to Appeal

SULAN J: This is an application for permission to appeal against sentence. The applicant, Aaron Savcic, was found guilty by jury verdict of the offence of causing serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to five years and six months’ imprisonment with a non-parole period of three years and six months’ imprisonment.
Background
On the evening of 8 May 2011, the applicant attended a hotel in North Adelaide. The victim was the guitarist of a band that was playing that night. Whilst on the dance floor in front of the stage where the victim was playing, the applicant touched the backside of a female patron. She was the victim’s girlfriend. The victim kicked out, striking the bicep of the applicant.
During a break in the performance, the victim went over to his girlfriend who was seated on a stool at the bar. CCTV footage from above the bar captured the events that followed. While the victim was consoling his girlfriend, the applicant approached. He put his arm around the shoulder of the victim and exchanged some words. The victim then pushed the applicant away. The applicant then struck the face of the victim using a glass filled with beer that he was holding in his hand.
The sentencing Judge described the incident in the following terms:
You say that you were there to apologise and that you apologised to the victim and his girlfriend. I do not accept your evidence in that regard and I reject your evidence as to your state of mind during the events immediately thereafter. I am satisfied beyond reasonable doubt that the evidence given by the victim and his girlfriend accurately describe the events when you first spoke to them. You did not apologise. You asked what the problem was and you made those sort of comments a couple of times. You were told that ‘you just can’t go grabbing girls on the backside’. You put your arm on the victim’s shoulder. Your demeanour was aggressive. As you touched the victim with your arm he turned around and, not surprisingly, he pushed you away. The force of that push was not great. You did not spill beer from your nearly full glass of beer. You then struck the victim in the face with a full glass of beer in your hand. The force of the blow was so great that the glass smashed into the victim’s face.
She noted the injury sustained by the victim:
The victim did suffer serious harm. He suffered a significant injury to his face and has permanent disfigurement, scarring as a result of that injury. I note the victim’s description and the medical evidence of the effect upon his face, facial nerves and saliva glands after the incident. I have observed the victim’s scarring. I have seen the photographs and I note the victim impact statements from the victim and from his girlfriend describing the ongoing psychological effects and trauma suffered by each of them as a result of your offending.
The victim works in the entertainment industry. He has permanent facial scarring. He will be reminded of this incident every time he looks in the mirror. The offending has also affected the employment of the victim.
Sentencing remarks
The Judge noted the personal circumstances of the applicant. She said:
You were born on 16 November 1979. You are 34 years old and you were 32 years at the time of the offence. You grew up in the Riverland the eldest of three children. Unfortunately your early life was marred by witnessing domestic violence perpetrated by your father upon your mother. Your father was also violent towards you. Your father was particularly aggressive when he had been drinking.
In March 2003 your mother stabbed your father to death and she was subsequently convicted of his manslaughter. This whole incident was deeply traumatic for you; not only because you witnessed some of the events in the aftermath but also because you lost a father. Even though your relationship with your father was problematic, as was his relationship with other members of the family, you keenly felt the loss of that relationship with your father. You also felt that you lost your mother because of her conduct. I note that in recent years you have been able to rebuild your relationship with your mother and that she remains supportive of you.
Despite all of those difficulties you were able to succeed during your high school education, although you left school when you were 15 years old. You went to work on the family farm with your father. You worked hard. To your credit you have been successful with that and your own businesses.
When you were 18 you left home and moved to Adelaide with the desire to distance yourself from your family and its problems. You purchased a franchise in Adelaide and you also managed a vineyard in Renmark. After your father’s death you returned to Renmark to manage the family farm which you did for about a year until it was sold. As I said you have also been successful in business; until recently you had a retail fruit company, a bakery and a café that employed 15 staff.
You married shortly after your father’s death and were married for eight years. Your marriage ended after this offending occurred, that is the offending before me. You had marital difficulties prior to this incident although I accept that this matter put further stress on the relationship. I note that you formed another relationship since that time.
The applicant’s case at trial was that he acted in self-defence. Two psychological reports were tendered, one by Mr Broomhall and the other by Ms Harris. The Judge noted that she did not accept those parts of the reports that referred to or expressed opinions as to the applicant’s state of mind at the time of the offending. She said:
The opinions of the authors of the reports, including Mr Broomhall (who also gave oral evidence) are based on your account of events to them. Your sworn evidence was rejected by the jury and I do not accept it. Unlike the authors of the reports, I have had the advantage of hearing and seeing all of the evidence. I also note that your position about the verdict and the issue of self-defence has changed between the report of Mr Harris and the pre-sentence report and the later report of Mr Broomhall. I do not accept Mr Broomhall’s hypothesis as to your state of mind immediately prior to and as you struck the victim to the face. Mr Broomhall’s opinion or hypothesis is based on your account of events and your evidence of your state of mind. As I have said, I do not accept your account.
Also, I do not accept Mr Broomhall’s opinions about your contrition. You pleaded not guilty. The victim and his girlfriend and others gave evidence at this trial. This matter has been protracted. Your apology to the victim, by the apology given to me, literally came at the last moment. You have made little effort at restitution.
The Judge made the following findings in respect of the evidence:
Having regard to all of the evidence at trial, the CCTV, my observations of the witnesses and of you, I find beyond reasonable doubt that you approached the victim in an aggressive mood. You did not apologise. I note your evidence in that regard, and the evidence of the prosecution witnesses. I reject your evidence.
The Judge then noted the applicant’s prior offending:
You have three convictions involving driving and alcohol. You were also convicted of an assault in Queensland in 2009. The penalty for that offence was a fine and I have not been be given any details of this offence or the other offence for which you were convicted at the same time.
Most significantly, you have a prior conviction in December of 2004 for an offence committed in December 2003 of assault occasioning actual bodily harm. This was also an offence of a glassing to the face of another that occurred in a Riverland hotel. I note the apprehension reports tendered to me by the prosecution in respect of that incident. You have been punished for that offending and I am not to punish you again for that, but, having regard to that offence, your present offending cannot be mitigated in the same way. Unfortunately, the offending before me was not an aberration.
The prior offending is also relevant to your prospects of rehabilitation. You say that you are a good candidate for rehabilitation and you rely on the reports that have been tendered in that regard. I think that your prospects of rehabilitation are more questionable. You place reliance on your counselling with Mr Harris. I am dubious about your efforts with respect to counselling so far. The offence before me occurred in May 2011. You had five consultations with Mr Harris in the months of June and July 2011 and two other sessions later that year. You did not pursue other opportunities for counselling until four more recent occasions and most of those were to assist you with the anxiety of the media attention and the trial in respect of the matter. I do not think that you have shown real commitment to dealing with the issues of underlying aggression and personality issues which led to your behaviour. I accept that the type of psychotherapy suggested by Mr Broomhall may be helpful but thus far you have shown patchy endeavour to do something in that regard. Until very recently you continued to justify your behaviour to some extent in terms of self-defence or some sort of spontaneous reaction. I do not accept that you have true insight into your behaviour.
The Judge concluded:
Assaults using a glass in licensed premises, in pubs, are commonly known as glassings. It says something about the prevalence of this type of offence that in Australia we have a common term for it. Such offending is rightly denigrated and is seen as a cowardly, low act. The victim in this case had no weapon. He was relatively slight of build and he was not shaping up to you or in any way behaving in a threatening fashion. Nothing that he did or said could justify an assault upon him, let alone an assault with intent to cause serious harm in the manner perpetrated by you.
It is important that others are deterred from this sort of behaviour and in this case there is also a need for specific deterrence because of your prior history. The community condemns such behaviour and punishment should also feature in sentencing you. Of course, having said all those things, matters of rehabilitation also have importance and I have carefully considered that in this case, particularly having regard to your early very difficult circumstances.
I note that the maximum penalty in this case is 20 years imprisonment. I sentence you to five years, six months imprisonment and I fix a non-parole period of three years, six months. The sentence is to commence on the date when I remanded you in custody, being 18 July 2013.
Leave to appeal
The applicant advances a number of grounds of appeal. The primary ground is that the Judge failed to give sufficient weight to the conduct of the victim and the events leading up to the offending. It is contended that the jury verdict was consistent with the applicant having acted in self-defence, but that his actions were excessive. The complaint is that the Judge erred in not sentencing the applicant on that basis. The remaining grounds of appeal are dependent on the success of the first ground. They are that the Judge erred in failing to have regard to the opinion of Mr Broomhall and Ms Harris, erred in finding that the victim “was not shaping up to [the applicant] or in any way behaving in a threatening fashion” and that “[n]othing that [the victim] did or said could justify an assault upon him.” Accordingly, it is submitted that the sentence was manifestly excessive.
I was invited by counsel to view the CCTV footage. I have done so on a number of occasions, prior and subsequent to hearing submissions. I have also considered the evidence of the witnesses in this case, including that of the applicant, the victim and the victim’s girlfriend. In my view, it was open to the Judge to sentence the applicant on the basis that he was the aggressor and that his conduct was not self-defence, excessive or otherwise. The conduct of the victim appears consistent with being irritated and displeased with the applicant. I do not consider it reasonably arguable that the Judge failed to consider or give sufficient weight to the conduct of the victim in remonstrating, gesturing or pushing the applicant. I do not consider it reasonably arguable that the Judge erred in failing to sentence the applicant on the basis that he acted excessively in self-defence.
As to the remaining grounds, it is sufficient to note that the state of mind of a person is to be determined, in most cases, by a combination of objective factors, including what the person said and did at the time of the offending. In this respect, the opinion of a psychologist that the applicant “reflexively responded to a perceived physical attack” carries limited weight. In my view, it was open to the Judge to reject the opinions of the psychologists as to the applicant’s state of mind at the time of the offending. In my view, it is not reasonably arguable that the Judge erred in not giving sufficient weight to the applicant’s apology or in her noting that little effort had been made at restitution.
I am of the view that it is not reasonably arguable that error has been demonstrated or that the sentence is manifestly excessive. Permission to appeal is refused.