R v Weetra

Case [2004] SASC 33


L v POLICE

[2004] SASC 33

Magistrates Appeal

GRAY J

Introduction

  1. This is an appeal against sentence.

  2. The appellant was charged with assault contrary to section 39(1) of the Criminal Law Consolidation Act 1935 (SA).

  3. On 12 November 2003 the appellant pleaded guilty in the Whyalla Magistrates Court sitting as the Youth Court.  The magistrate recorded a conviction and imposed a term of imprisonment of ten days suspended on the appellant agreeing to enter into an obligation.

  4. On the evening of 23 December 2001 a domestic argument broke out between the appellant and her de facto partner.  Both had been drinking.  In the course of the argument the appellant’s de facto partner grabbed her and threw her against a television set.  She sustained injury.  She was bleeding from her head.  The appellant reported the incident to the police.  Her de facto left the house.

  5. Some time later, the appellant walked alone to the Port Augusta Hospital to seek medical treatment for her injuries.  She was asked to wait in the waiting room of the Accident and Emergency ward.  She was affected by alcohol as a result of her earlier drinking.  She was extremely upset and disturbed about the violent treatment she had received from her de facto.  She was anxious to receive treatment.  She believed that people were making fun of her as she was waiting. It was against this background that the offence occurred.

  6. A nurse called her into another room for treatment.  However, the nurse left to attend to an urgent matter.  After some minutes the nurse returned to see the appellant leaving and walking towards the waiting room.  The appellant was yelling obscenities towards staff.  The nurse went to the waiting room to call the next patient.  The appellant then stepped in front of the nurse waving a safety pin in her hand and stated ‘I’m going to stab you with this you bitch’.  The nurse grabbed the appellant’s wrist and took the pin from her.  The appellant then backed away but continued to yell abuse.  The police were called and arrived shortly thereafter.  The nurse was uninjured.

    Issues on Appeal

  7. On appeal it was said that the magistrate had made errors of fact and law and that the penalty imposed was manifestly excessive.

    Errors of Fact

  8. When sentencing the magistrate briefly summarised the circumstances of the offence and remarked:

    You were an out-patient and under the influence of alcohol. A nurse was attending to her duties in priority order and you became frustrated and produced a safety pin. You thereupon tried to stab her but no injury occurred, as she was able to hold your arm so that nothing further could occur.

  9. This brief statement discloses a serious misapprehension of fact.  The appellant had produced a safety pin and made a threat, but there had been no attempt to stab the nurse.  It was the appellant’s case that she had no intention to stab or otherwise injure the nurse.

  10. It was further submitted that the magistrate…

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AGLC
R v Weetra [2004] SASC 33
Case
[2004] SASC 33
Decision Date

CaseChat Overview and Summary

This appeal concerns the sentencing of the appellant, who was convicted of a crime and subsequently sentenced by a magistrate. The case has reached the appellate court, where the legality and appropriateness of the original sentence are being reviewed. The appellant argues that the sentence imposed was excessive and not in line with the principles of justice and rehabilitation, particularly given the circumstances of the case and the appellant's background.

The court was required to determine whether the sentence imposed by the magistrate was lawful, appropriate, and in accordance with the relevant statutory provisions and legal principles. Specifically, the court needed to consider whether the sentence was proportionate to the offence, whether it adequately balanced the principles of deterrence, retribution, and rehabilitation, and whether the magistrate correctly applied the provisions of the Young Offenders Act 1993 (SA). The court also had to consider the specific circumstances of the appellant, including any mitigating factors, and whether the sentence adequately took these into account.

In reviewing the case, the court found that the sentence imposed by the magistrate did not appropriately balance the principles of sentencing and rehabilitation. The court held that the sentence was disproportionate and did not adequately consider the appellant's background and the mitigating circumstances of the case. The court also found that the magistrate had not correctly applied the provisions of the Young Offenders Act 1993 (SA). As a result, the court set aside the original sentence and re-sentenced the appellant, ordering that the appellant be released without conviction upon agreeing to enter into an obligation under the terms previously outlined.

The court's decision ensures that the sentencing process is fair and just, taking into account the specific circumstances of the case and the principles of justice and rehabilitation. The re-sentencing of the appellant reflects the court's commitment to ensuring that sentences are proportionate and appropriate, and that the rights and circumstances of the accused are properly considered.

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

This appeal is allowed. The orders of the magistrate are set aside. The appellant is re-sentenced. The appellant is released without conviction upon her agreeing to enter into an obligation in the terms earlier outlined.JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT1 R v Proom (2003) 85 SASR 120 at 126-1312 In the present case section 23(6) had no application.3 Young Offenders Act 1993 (SA) s23(2)4 Young Offenders Act 1993 (SA) s23(1) 5 R v Police (2002) 224 LSJS 210, RJB v Police [2000] SASC 209, AJK v Police (2002) 135 A Crim R 1. KBS v Police (2001) 212 LSJS 4296 Young Offenders Act 1993 (SA) s3(1)(3)(b)7Young Offenders Act 1993 (SA) s3(2a), AJK v Police [(2002) 135 A Crim R 1, Schulze v S (1995) 180 LSJS 371 and R v QTV [2003] SASC 424 at [48]8B H Hunter, Y Kinfu and J Taylor, ‘The future of Indigenous work: Forecasts of labour forces status to 2011’ No 251 of 2003 (ANU Centre for Aboriginal Economic Policy Research) at 39See B H Hunter, Y Kinfu and J Taylor, ‘The future of Indigenous work: Forecasts of labour forces status to 2011’ No 251 of 2003 (ANU Centre for Aboriginal Economic Policy Research), Newcombe v Police[2004] SASC 2610Neal v The Queen (1982149 CLR 305; R v Fernando [1999] NSWCCA 66, R v Smith (2003) 86 SASR 132 at 15311 R v Police (2002) 224 LSJS 210, KBS v Police (2001) 212 LSJS 429

Ratio Decidendi

Legal Principle Established

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