Rodgers v Police

Case [2022] SASC 119

Supreme Court of South Australia

(Magistrates Appeal: Criminal)

RODGERS v POLICE

[2022] SASC 119

Judgment of the Honourable Justice McDonald 

26 October 2022

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

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

The appellant appeals against a sentence imposed by a Magistrate. On 2 March 2022, the appellant entered a plea of guilty to one count of assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA). The appellant was sentenced in the Magistrates Court on 18 May 2022. The appellant pleaded guilty when the matter was listed for a pre-trial conference. Accordingly, the appellant was entitled to a discount of up to 30 per cent for his plea. From a starting point of six months imprisonment, the Magistrate applied the discount of 30 per cent and imposed a sentence of imprisonment of four months and six days. The Magistrate refused to suspend the sentence either wholly or partially and found that there were not proper grounds to order that the sentence be served on home detention. The Notice of Appeal contained six grounds of appeal. The combined effect of the grounds was a complaint that the Magistrate erred in not availing himself of a sentencing option that did not require the immediate imprisonment of the appellant. The appellant is seeking that the sentence of four months and six days be set aside, and that the Court resentence him.

Held, dismissing the appeal: 

1.      In light of the seriousness of the offending and having regard to all of the appellant’s personal circumstances, it cannot be said that the imposition of a term of immediate imprisonment for four months and six days fell outside of the permissible range of sentences available to the Magistrate.

Criminal Law Consolidation Act 1935 (SA) s 20(4); Magistrates Court Act 1991 (SA) ss 42(1), 42(2)(b); Sentencing Act 2017 (SA) ss 69, 71, 79, 80, 81, 96(1), 96 (4); Supreme Court Criminal Rules 2014 (SA) r 104V(1), referred to.

House v The King (1936) 55 CLR 499; R v Dell & Dell (2016) 126 SASR 571; Wittwer v Police [2004] SASC 226, applied.
R v Aubrey [2021] SASCA 71, discussed.

Craill v Police [2016] SASC 168; Dinsdale v The Queen (2000) 202 CLR 321; KMC v Director of Public Prosecutions (2020) 267 CLR 480; Lowndes v The Queen (1999) 195 CLR 665; Playford v Police [2017] SASC 26; R v Lutze (2014) 121 SASR 144; R v Mark [2019] SASCFC 48; R v Stevens [2008] SASC 170; R v Spyrou [2008] SASC 209; R v Wilton (1981) 28 SASR 362; Teasdale v Police [2022] SASC 64, considered.

RODGERS v POLICE
[2022] SASC…

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Rodgers v Police [2022] SASC 119
Case
[2022] SASC 119
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CaseChat Overview and Summary

The appellant, Rodgers, appealed a Magistrates Court decision imposing a six-month custodial sentence for an assault occasioning harm. The sentence was reduced to four months and six days, as a result of the appellant’s guilty plea. The appeal centred on the Magistrate’s decision to impose an immediate custodial sentence rather than a non-custodial sentence, such as home detention or a suspended sentence. The appellant argued that the Magistrate had not applied the correct legal test when determining the appropriate sentence and that the decision was unreasonable in light of the appellant’s personal circumstances.

The court was required to determine whether the Magistrate had correctly applied the relevant legal principles when imposing the custodial sentence, and whether the sentence was within the permissible range of sentences available to the court. The court also needed to consider whether the Magistrate had failed to give sufficient weight to the appellant’s personal circumstances, and whether the decision was unreasonable in light of those circumstances.

The court found that while the Magistrate may not have applied the correct legal test, the outcome of the sentencing decision was still open to the court. The court considered that the seriousness of the offending, and the appellant’s personal circumstances, meant that a term of immediate imprisonment was an appropriate sentence. The court concluded that the appeal should be dismissed and that the original sentence was within the permissible range of sentences available to the Magistrate.

The appeal is dismissed. The original sentence of four months and six days imprisonment is upheld.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against a sentence imposed in the Magistrates Court in relation to one count of Assault Causing Harm in contravention of s 20(4) of the Criminal Law Consolidation Act 1935 (SA). For this offence the appellant was sentenced to six months imprisonment, which was reduced by 30 per cent to four months and six days on account of the appellant’s plea of guilty. Underpinning the various grounds of appeal is a complaint that the Magistrate erred in ordering that the appellant serve that term of imprisonment.The facts The victim of the offending was an associate of the appellant. They had known each other for several years. A civil dispute had arisen between the two men over a motorcycle. The appellant thought that the victim owed him money in relation to that motorcycle. At about 10.30pm on 10 December 2020 the victim was at his home at Smithfield Plains. He heard a vehicle pull up at the front of his house. He walked outside to investigate and found the appellant there. The appellant yelled loudly at the victim about the money he thought that the victim owed him. The victim remained on the footpath and then approached the appellant. The victim was also yelling at the appellant. The appellant struck the victim to the face. The victim did not recall what happened next other than being struck repeatedly by the appellant and ending up on the ground near his letterbox. The victim’s next memory was of being on the opposite side of the road. There is no dispute that the victim was repeatedly struck by the appellant. At this point the victim got to his feet and walked to the rear of the appellant’s vehicle. He punched the left tail light, causing it to break. The appellant then continued to assault the victim, punching him to the head and face multiple times until a neighbour intervened. It was only after the neighbour’s intervention that the appellant desisted. The victim was conveyed to a hospital. As a result of the assault he suffered a broken nose. At some stage during the assault the appellant took a photograph of the victim on his knees, obviously bleeding and injured, with his eyes closed. A short time after the assault the appellant sent the victim’s partner a text message, asking her whether the victim had any sexually transmitted diseases because his hands were covered in the victim’s blood. The appellant subsequently told police during an interview that he took the photograph “for [his] own gratification” and to show the victim that “he was a little bitch”. He also told police that he had previous boxing experience and that was why the appellant was quicker than the victim and knocked him out first.[1][1] Sentencing Remarks at 2.Proceedings in the Magistrates Court This matter took some time to come to a resolution. While these offences occurred on 10 December 2020, it was not until 2 March 2022 that the appellant entered a plea of guilty to one count of Assault Causing Harm.[2] After entering that plea, the solicitor for the appellant sought an adjournment in order to have the appellant psychologically assessed and a report prepared. The application for the adjournment was granted by the Magistrate and the matter was listed for submissions on 18 May 2022.[2] Criminal Law Consolidation Act 1935 (SA) s 20(4).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if I am wrong in that the Magistrate did not apply the correct test, I would not allow the appeal on this ground. A proper application of the test to the appellant’s circumstances leads me to the conclusion that the outcome was correct. At the very least, it was open to the Magistrate to come to the view that this was not an appropriate case in which to order that the sentence be served on home detention. Conclusion In light of the seriousness of the offending and having regard to all of the appellant’s personal circumstances, it cannot be said that the imposition of a term of immediate imprisonment for four months and six days fell outside of the permissible range of sentences available to the Magistrate.Order The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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