R v Stubberfield

Case [2010] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v STUBBERFIELD

[2010] SASC 9

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

4 February 2010

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE

Appeal against sentence - following plea of guilty, defendant and appellant convicted of charge of assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA) - sentence of four months and two weeks’ imprisonment imposed, suspended on entry into good behaviour bond of two years - whether sentencing Judge erred in recording a conviction - whether Judge erred in deciding there was no evidence that defendant's employment would be adversely affected if a conviction was recorded - whether Judge erred in requiring defendant to produce evidence that his employment would be adversely affected if conviction was recorded when prosecution accepted that it was open to Judge to proceed without recording conviction and did not oppose this course.

Held: appeal allowed - procedural unfairness occasioned by failure of Judge to indicate that submissions put in mitigation by the defendant and not disputed by the prosecution, might not be accepted - sentencing Judge failed to give sufficient weight to the defendant’s offer of reparation as a matter of mitigation - sentence considered afresh - good reason to proceed without recording a conviction pursuant to section 39 of the Criminal Law (Sentencing) Act 1988 (SA) - impact on defendant's employment, defendant's lack of antecedents and the unusual circumstances of the assault warrant merciful approach in circumstances - conviction and sentence imposed by sentencing Judge set aside - defendant released without conviction on entry into good behaviour bond.

Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 16 and s 39; Public Sector Management Act 1995 (SA) s 57 and s 60, referred to.
R v Perre (1986) 41 SASR 105; R v Lobban (2001) 80 SASR 550; R v Haydon (2001) 80 SASR 560; Markarian v R (2005) 228 CLR 357; Dinsdale v R (2000) 202 CLR 321; House v R (1936) 55 CLR 499; The Queen v Robertson (1984) 115 LSJS 51; Matulich v Police [2007] SASC 440; Radjevic v Police (1997) 67 SASR 478; Kovacevic v Mills (2000) 76 SASR 404; SA Police v John (1995) 181 LSJS 20; O’Keefe (1992) 60 A Crim R 201; R v Allen [2005] QCA 73; Hodgins v Police [2008] SASC 176; R v Briese (1997) 92 A Crim R 75; Attorney-General v Smith [2002] TASSC 10; Zefi v Police [2003] SASC 218; Szep v Police [2003] SASC 144; O'Hanlon v SA Police (1994) 62 SASR 553

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AGLC
R v Stubberfield [2010] SASC 9
Case
[2010] SASC 9
Decision Date

CaseChat Overview and Summary

The case of R v Stubberfield involved the defendant, Gavin John Stubberfield, who was charged with assault causing harm under section 20(4) of the Criminal Law Consolidation Act 1935 (SA). Stubberfield pleaded guilty to the charge, resulting in a conviction. Initially, the court imposed a sentence of four months and two weeks imprisonment, suspended on the condition of a two-year good behaviour bond. However, Stubberfield appealed the sentence, and the case was heard by a higher court. The appeal focused on the sentencing procedure and the considerations that should have been taken into account.

The primary legal issues in the appeal were whether the initial sentencing process was procedurally fair and if the sentencing judge appropriately considered the mitigating factors presented by the defendant. Specifically, the court had to decide if the sentencing judge correctly applied the statutory provisions concerning the relevance of restitution and contrition in the sentencing process. The defendant argued that the judge failed to properly weigh the offer of reparation to the victim and the mitigating factors, which included the defendant's remorse and willingness to make amends.

The court found that the original sentencing process was flawed because the judge did not adequately address the submissions in mitigation, leading to procedural unfairness. The judge's failure to consider the offer of reparation and the mitigating factors as required by sections 10(1)(e) and 10(1)(f) of the Sentencing Act constituted a significant error. As a result, the sentence needed to be reconsidered. The court concluded that the more appropriate sentencing provision was section 39 of the Sentencing Act, which allows for the imposition of a good behaviour bond and the preservation of the defendant's liability for the offence in case of a breach. Consequently, the court set aside the original conviction and sentence and imposed a new sentence of a three-year good behaviour bond in the amount of $100.00, releasing the defendant without conviction.

Orders

Orders of the court

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Background

Background to the litigation

Pursuant to an amended Information,[1] the defendant and appellant, Gavin John Stubberfield, was charged with assault causing harm, contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA).[2] On 29 September 2009, following a plea of guilty, the defendant was convicted of this charge. A sentence of four months and two weeks imprisonment was imposed, suspended on entry into a good behaviour bond of two years in the amount of $500.00.[1] The Information previously alleged the charge of unlawfully causing harm with intent to cause harm contrary to section 24(1) of the Criminal Law Consolidation Act 1935 (SA).[2] 20—Assault(1)A person commits an assault if the person, without the consent of another person (the victim)—(a) intentionally applies force (directly or indirectly) to the victim; or(b)intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or(c)threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—(i)the person who makes the threat is in a position to carry out the threat and intends to do so; or(ii) there is a real possibility that the person will carry out the threat; or(d)does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or(e)accosts or impedes another in a threatening manner.…(4)A person who commits an assault that causes harm to another is guilty of an offence.Maximum penalty: (a)for a basic offence—imprisonment for 3 years;(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 4 years;(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years.Background The offence occurred at Port Lincoln in the early hours of the morning on 22 December 2007. At the time of sentencing, the Judge summarised the circumstances of the offence. It is convenient to set out his remarks:On the day in question you finished work and went to a local hotel with some friends. You consumed one or two beers, you were invited to attend a party. At the party the victim was carrying a package of hot chips. He was drunk and acting in an obnoxious manner. At one stage he spilt chips on the floor and refused to pick them up after several people, including yourself, asked him to do so. He was eventually told the [sic] leave. You followed him through the front door to ensure that he did. As that was happening he became agitated and pushed you in the chest. It is not clear from the declarations who pushed whom first. You noticed that his fists were clenched and you thought he was going to punch you, so you decided to get in first. You struck a blow which must have been most significant. You punched him in the mouth and as a consequence he suffered very significant injuries to his front teeth and gums. … It is instructive to note that the prosecution accepted that excessive self-defence via a pre-emptive single punch was the proper factual basis for sentencing.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances of the present proceeding, we consider it appropriate to exercise our powers under section 39 of the Sentencing Act rather than section 16. Section 39 allows for the imposition of a good behaviour bond. That section further allows for the defendant to be sentenced for the present offending in the event of a breach of that bond. Having regard to the seriousness of the offence, it is appropriate that the defendant remain liable for his offending in the event of breaching the bond imposed. Section 39 is the more appropriate source of power to be utilised. We consider it appropriate to impose a three year good behaviour bond in the amount of $100.00.Conclusion We allow the appeal. We set aside the conviction and sentence imposed by the sentencing Judge. We exercise the Court’s power under section 39 of the Sentencing Act and release the defendant without conviction on entry into a three year good behaviour bond.

Ratio Decidendi

Legal Principle Established

In the circumstances of the present proceeding, where the submissions put by the defendant were not disputed by the prosecution, there was a need for the Judge to indicate that the submissions in mitigation might not be accepted. Not to do so gave rise to a procedural unfairness. As a consequence of this error in the sentencing process, it is necessary to consider the sentence afresh.[8][8] Markarian v R (2005) 228 CLR 357; Dinsdale v R (2000) 202 CLR 321; House v R (1936) 55 CLR 499.Reparation As earlier observed, the defendant offered to make reparation to the victim. This offer was made in open court, both before the sentencing Judge and repeated on appeal. This Court was informed that at the time of sentencing a criminal injuries claim had been issued. As earlier discussed, the Judge appeared to give no weight to the offer of reparation when sentencing. In our view, the offer of reparation demonstrated a desire on the part of the defendant to make amends for his conduct and was also evidence of contrition and remorse. Section 10(1)(e) of the Sentencing Act provides:A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:…(e) any injury, loss or damage resulting from the offence;and section 10(1)(f)(i), which provides:A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:…(f) the degree to which the defendant has shown contrition for the offence— (i) by taking action to make reparation for any injury, loss or damage resulting from the offenceIt is relevant to observe that sections 10(1)(e) and 10(1)(f) put into statutory form the common law as outlined in Robertson.[9] [9] The Queen v Robertson (1984) 115 LSJS 51 at 53. In Matulich v Police[10] relevant authorities were reviewed and the following conclusions drawn. These conclusions are relevant to the present proceeding:-Statutory recognition has been given to the relevance of restitution in the sentencing process through sections 10(1)(e) and 10(1)(f) of the Sentencing Act.-These statutory provisions provide a recognition of the common law principles. [11] -A sentencing court must treat restitution as mitigatory. This is because the making of restitution impacts directly on the extent of any loss suffered, and must be brought to account by reason of section 10(1)(e).[12] -The circumstances under which restitution is made may demonstrate contrition and remorse. These are matters of mitigation. This is because contrition and remorse suggest that there are good prospects for rehabilitation.[13][10] Matulich v Police [2007] SASC 440 reviewing The Queen v Robertson (1984) 115 LSJS 51; Radjevic v Police (1997) 67 SASR 478; Kovacevic v Mills (2000) 76 SASR 404; SA Police v John (1995) 181 LSJS 20; O’Keefe (1992) 60 A Crim R 201; R v Allen [2005] QCA 73.[11] See The Queen v Robertson (1984) 115 LSJS 51 at 53.[12] See Kovacevic v Mills (2000) 76 SASR 404.[13] See The Queen v Robertson (1984) 115 LSJS 51.