R v Wilson - [2016] SASCFC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON
[2016] SASCFC 139
Judgment of The Honourable Chief Justice Kourakis
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
20 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PROCEDURE - JURISDICTION - GENERALLY
CRIMINAL LAW - PROCEDURE - JURISDICTION - SUPREME COURTS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE - GENERAL PRINCIPLES
Appeal against sentence.
On 11 February 2016 the appellant was involved in a fight outside a hotel. The appellant refused five or more requests by the police to provide his personal details. The police arrested the appellant for the offence of refusing to provide his personal details. During the course of the arrest the appellant dropped to the ground, wrapping his legs around railing and then an officer’s leg; this conduct gave rise to a charge of resisting arrest. Later, while the appellant was detained, he spat on the lower trouser legs of two police officers. This conduct was the subject of two charges of assaulting police (herein the street offending).
At the time of the street offending, the appellant was on a good behaviour bond which he entered into in October 2014. The October 2014 bond was for a period of two years and suspended a sentence of six months of imprisonment. Prior to the street offending taking place, an application to enforce the October 2014 bond was made in the District Court.
The appellant appeared once in the Magistrates Court in relation to the street offending yet no plea was entered. The Magistrates Court file was administratively transferred to be heard with the application to enforce the bond in the District Court.
In the District Court, the Chief Judge imposed an overall sentence of 12 months imprisonment for the street offending. The suspension of the October 2014 sentence was revoked and the appellant ordered to serve six months cumulatively on the 12 months. The Chief Judge set a non-parole period of 10 months. The appellant appeals against that sentence as manifestly excessive.
The appellant subsequently appeared in the Magistrates Court for a new offence of assault causing harm. The appellant plead guilty to that offence, breaching a bond entered into in May 2015 (which suspended a sentence of 5 months imprisonment). For the new offence, the Magistrate imposed a sentence of 10 months imprisonment. The previously suspended sentence was revoked and the Magistrate ordered that the five months imprisonment be served cumulatively on the 10 months imprisonment. The combined sentence of 15 months was ordered to be served cumulatively on the 18 months imprisonment imposed by the Chief Judge. The Magistrate imposed a head sentence of 2 years and 9 months with a non-parole period of 18 months.
The issues to be determined on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wilson

Details

AGLC: R v Wilson [2016] SASCFC 139
Case: [2016] SASCFC 139
Decision Date: 20 December 2016

CaseChat Overview and Summary

This matter concerned an appeal by the appellant, Mr Wilson, against sentences imposed by the Chief Judge. The dispute centred on the severity of the sentences for various offences, including street offences committed in February 2016, an assault causing harm offence in 2016, and the revocation of previously suspended sentences. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Nicholson and Hinton JJ.

The primary legal issue before the court was whether the sentence imposed for the February 2016 street offences was manifestly excessive, and consequently, what the appropriate sentence should be. A related issue involved the court's power to substitute a different sentence and to determine the cumulative effect of various sentences, including the revocation of suspended sentences and the sentence for the assault causing harm offence. The court also considered the statutory basis for the Chief Judge's sentencing power in relation to the street offences.

The Full Court reasoned that while spitting at police officers is a serious matter, the specific circumstances of the appellant's offending in February 2016 did not warrant the original sentence imposed. Citing previous authorities, the court acknowledged the indignity and potential health risks associated with such acts, but distinguished the appellant's conduct as being of a lesser seriousness than in those cases. The court determined that the sentence of seven weeks imprisonment for the February 2016 street offences was manifestly excessive and that the Chief Judge had exercised powers akin to those of a Magistrate. Consequently, the appeal against this sentence was governed by the relevant provisions of the Magistrates Court Act 1991 (SA).

The court ordered that the sentence imposed for the summary offences by the Chief Judge be set aside and substituted with a single sentence of seven weeks imprisonment. The head sentences were to be served cumulatively, comprising the revocation of a six-month suspended sentence from October 2014, seven weeks imprisonment for the February 2016 street offences, revocation of a five-month suspended sentence from May 2015, and a 10-month sentence for the 2016 assault causing harm offence. The total cumulative sentence amounted to 21 months and seven weeks, with an overall non-parole period of 14 months to commence from 19 April 2016.

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

Be all that as it may, having regard to the nature of the offences of which the appellant has been convicted, his history of breaching bonds and the hotel cause harm offence, it would not be appropriate to exercise any of those discretions favourably to the appellant.Conclusion I would set aside the sentence imposed on the summary offences by the Chief Judge. I would impose instead a single sentence of seven weeks pursuant to s 18A of the CLSA. The head sentences which the appellant is therefore liable to serve cumulatively are:·revocation of October 2014 suspended sentence of six months;·sentences of imprisonment for the February 2016 street offences of seven weeks;·revocation of the May 2015 suspended sentence of five months; and ·sentence of imprisonment of 10 months for the 2016 assault causing harm offence.The total of those sentences is 21 months and seven weeks. I would fix an overall non-parole period of 14 months to have commenced on 19 April 2016. NICHOLSON J: I agree with the reasons of and orders proposed by the Chief Justice.HINTON J: I agree with the Chief Justice that the sentence imposed for the February 2016 street offences was manifestly excessive. I agree that spitting is disgusting and engenders anxiety. It is also an act that is often intended to be intensely offensive to authority, humiliating, demeaning and degrading. In R v King de Jersey CJ said:[13]One begins with the proposition that those who treat a police officer in this way [spitting in the face] should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties which are usually onerous and often dangerous. It is abhorrent that a police officer responsibly going about his or her business be subject to the indignity and risk of being spat upon. The risk in contemporary society relates obviously to communicable disease. Related to the indignity is the display of contempt for civil authority which will often be involved in these incidents. An appropriate level of deterrence will in such cases usually be secured only through actual imprisonment of the offender.[13] (2008) 179 A Crim R 600 at [6]. And in Burgoyne v Dixon Thomas J said:[14]The act of spitting in an officer’s face is humiliating and degrading. It can have far more devastating consequences and be more difficult to fend off than the more common form of assault which involves kicks or punches to the body. There is a potential risk of contracting communicable diseases.[14] (2004) 150 A Crim R 1 at [25]. I appreciate that here the appellant did not spit in the face of the police officers and that his offending is of a level of seriousness less than that in either of King or Burgoyne v Dixon. Nonetheless, the sentiments expressed by de Jersey CJ and Thomas J largely remain apposite. I agree that a sentence of seven weeks imprisonment for the February 2016 street offences should be substituted for the reasons given by the Chief Justice. I also agree that the power exercised by the Chief Judge in sentencing Mr Wilson for the 2016 street offences was that vested in him as a judge of the District Court by s 22 of the Magistrates Act 1983 (SA) and s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA). The result is that the Chief Judge in sentencing the appellant for the February 2016 street offences was exercising the powers of a Magistrate in a “criminal action” within the meaning of s 3 of the Magistrates Court Act 1991 (SA).[15] Accordingly this appeal against the sentence imposed for the February 2016 street offences is governed by s 42 of the Magistrates Court Act 1991 (SA).[15] Tarasenko v Boylan (1992) 58 SASR 587 at 591 (King CJ).

Ratio Decidendi

Legal Principle Established

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