Rowe v POLICE - [2011] SASC 57

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ROWE v POLICE
[2011] SASC 57
Judgment of The Honourable Chief Justice Doyle (ex tempore)
8 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to a charge of assault contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) – the Magistrate sentenced the appellant to nine months imprisonment and, exercising the power conferred by s 38(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA), ordered that the appellant serve three months imprisonment and that the remaining six months be suspended upon the appellant entering into a bond to be of good behaviour for a period of six months – whether the sentence imposed by the Magistrate was manifestly excessive.
Held: appeal allowed – sentence imposed was manifestly excessive – appellant re-sentenced to serve six months imprisonment – that sentence was suspended upon the appellant entering into a good behaviour bond for twelve months with a number of conditions.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 38(2)(a), referred to.

ROWE v POLICE
[2011] SASC 57
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Mr Rowe was charged with an offence of assault contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is three years’ imprisonment. Mr Rowe pleaded guilty.
The Magistrate sentenced him to imprisonment for nine months. Exercising the power conferred by s 38(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA), the Magistrate ordered that Mr Rowe serve three months imprisonment and that the remaining six months imprisonment be suspended upon Mr Rowe entering into a bond to be of good behaviour for six months.
Mr Rowe complains that the sentence is manifestly excessive.
Facts
The offence occurred at 2.30 am near licensed premises in an entertainment area in Adelaide.
Mr Rowe had been the boyfriend of Ms S. They had “broken up”. There was some hostility between them as a result of this. Earlier on the night in question, at licensed premises, Mr Rowe was apparently assaulted by some friends of Ms S. This seems to have resulted from the tension between them. Mr Rowe had been drinking and was already significantly intoxicated. There was then some contact between Mr Rowe and Ms S using SMS messages. Mr Rowe went to another hotel where Ms S was. He arrived there. At about this time, Ms S had dropped her mobile phone, which had broken. The victim (“V”), was helping Ms S pick up the pieces. Mr Rowe says that he thought that V was one of the persons who had assaulted him earlier that night. Without warning he struck him a heavy blow, knocking V unconscious.
He was seriously affected by alcohol when he struck V. That probably explains what appears to have been an error of identity. It was a severe assault. V suffered a fractured jaw and a cut to the head requiring 11 stitches.
The Magistrate’s decision
Mr Rowe was 22 years old. He had no prior offences. The day after the incident he telephoned V’s mother and apologised. He was contrite. He had a good employment record.
The Magistrate had a pre-sentence report to assist him. The report referred to a pattern of binge drinking by Mr Rowe in the past but, since this incident, he has stopped consuming alcohol. He accepted full responsibility for his conduct.
A number of references were tendered and considered by the Magistrate. They demonstrate that Mr Rowe was well-regarded by those who knew him.
The Magistrate noted all this. I agree that it was appropriate for the Magistrate to proceed on the basis that Mr Rowe was unlikely to offend again.
I also agree with the Magistrate’s observation that intoxication explained what Mr Rowe did, but in no way excused it.
The Magistrate noted that this was a serious assault. The injuries were serious. Greater harm could easily have been caused. The Magistrate made an allowance for the plea of guilty, although he did not say how much of an allowance. It is preferable that Magistrates indicate the extent of the allowance when imprisonment is involved.
The Magistrate was not satisfied that there were good reasons to suspend the whole sentence. That led him to make the orders set out above.
Submissions on Appeal
Mr Anders, counsel on appeal, submits that the offence was spontaneous, brief, consisted of a single punch and did not form part of a course of conduct. The victim was not someone who was vulnerable or infirm.
I agree with all that, but do not agree that those objective circumstances demonstrate that the sentence was greater than warranted by the facts alleged. For an assault of this kind, the sentence was within an appropriate range, although certainly at the upper end. The real issue is whether, in light of Mr Rowe’s plea of guilty and contrition, and his personal circumstances, the sentence can be said to be excessive.
Mr Anders submits that the Magistrate was wrong to say that the assault was unprovoked. Mr Anders argues that provocation can be found in the earlier attack on Mr Rowe and that in his belief V was one of those who attacked him. There is no reason to think that the Magistrate did not accept that Mr Rowe believed that V was one of those who attacked him earlier in the night. But some time had passed since then. Mr Rowe made no attempt to confirm his suspicion about V. The most that can be said, in my opinion, is that alcohol caused him to make a serious mistake on the night in question. To the extent that there are circumstances of mitigation, they are that Mr Rowe made a mistake under the influence of alcohol.
Mr Anders refers in some detail to Mr Rowe’s good employment record and the support that he has from his family. He refers also to the early plea of guilty, to the early expression of remorse the following day and to Mr Rowe’s contrition. I accept all of that. It indicates that Mr Rowe is unlikely to offend again and that the offence is out of character. The references tendered to the Magistrate confirmed that he has a good character.
Mr Anders makes the point that imprisonment is a last resort, especially for a first offender who is only 22 years of age. Again, I agree. In summary on that aspect of the matter, Mr Rowe’s personal circumstances are a significant consideration in support of lenience.
However, I repeat, this was a serious assault and it is an offence of a kind that is a significant problem at present. By that I mean an offence of violence, involving a young adult male, taking place in an entertainment area frequented by young people, the offender being affected by alcohol and acting in a violent manner. General deterrence is an important aspect of sentencing for offences of this kind and was a significant aspect of the present case. The courts have to make it plain that this kind of offending will be dealt with seriously.
Considering all the circumstances, and in particular Mr Rowe’s age, character and good circumstances, I am persuaded that a head sentence of nine months imprisonment was manifestly excessive. When one has regard to all of the relevant circumstances that I have summarised above, I consider that the sentence of nine months imprisonment went beyond what was a permissible range for an offence committed by a person such as Mr Rowe.
The remaining issue is whether the Magistrate erred in failing to wholly suspend the sentence. Here, the circumstance that this offending is out of character, and that Mr Rowe has not previously offended, let alone been in prison or had the benefit of a suspended sentence, is significant. The court will be slow to imprison a first offender, particularly once whose prospects of rehabilitation are as good as they are in this case.
This is a difficult case. I can understand the Magistrate thinking that some part of the sentence he imposed should be served as actual imprisonment.
But in the end I am persuaded that the Magistrate has erred in this respect also. I consider the circumstances supporting a wholly suspended sentence of imprisonment are quite powerful, and in the end they outweigh the circumstances that supported the order the Magistrate made. The Magistrate should have suspended the sentence.
Accordingly, I allow the appeal. I set aside the sentence imposed by the Magistrate. I substitute an order that Mr Rowe be sentenced to imprisonment for six months. That sentence is to be suspended upon Mr Rowe entering into a bond to be of good behaviour for a period of 12 months from today. Further conditions of the bond are that he be under the supervision of, and comply with, the lawful directions of the Community Corrections Officer, and that he attend for counselling and instruction in relation to safe drinking practices as directed by the Community Corrections Officer.