R v Weetra

[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…