Scott v Police - [2015] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCOTT v POLICE
[2015] SASC 103
Judgment of The Honourable Justice Nicholson
17 July 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
Appeal against sentence. The appellant was charged with the offence of basic assault causing harm. On 31 August 2013, the appellant punched the victim, a former girlfriend, with a closed fist. Following a number of adjourned hearing dates, resulting from the appellant either not attending or needing to obtain legal advice, the trial was listed for 5 February 2015. The appellant was not prepared for the trial and sought assistance from duty solicitors on the day, following which the appellant pleaded guilty to the offence. The conviction for the assault offence caused the appellant to breach a good behaviour bond supporting a one month suspended sentence. The suspension was revoked. The appellant was sentenced to 5 months imprisonment, to be served cumulatively on the one month sentence giving rise to a total immediate term of imprisonment for six months.
On appeal, the appellant contends, inter alia, that the sentence was manifestly excessive, that the appellant had been wrongly convicted for an offence of aggravated assault and that there was a miscarriage of justice in the circumstances where the Magistrate proceeded immediately to sentence rather than adjourning the matter to enable the appellant to obtain legal assistance.
Held:
1. The time under the rules within which to appeal is extended to 20 March 2015.
2. Appeal allowed.
3. The Magistrate’s sentence and ancillary orders are set aside.
4. The matter is remitted to the Magistrates Court for re-sentencing before a different Magistrate.
5. The Magistrates Court is directed to correct its file endorsements and Certificate of Record so as to accurately record the relevant offence as one count of basic assault causing harm.
Criminal Law Consolidation Act 1935 (SA) s20; Criminal Law (Sentencing) Act 1998 s 38, referred to.
Cooling v Steel (1971) 2 SASR 249; Ivanoff v Linnane (1979) 20 SASR 279; Franks v Police [1998] SASC 6897, applied.
Mellor v Police [2001] SASC 357; Vreeker v Police [2004] SASC 90; Faulds v Police [2002] SASC 251; Pezos v Police [2005] SASC 500; Datson v Police [1999] SASC 59; Pearce v Police [1996] SASC 5440, considered.

SCOTT v POLICE
[2015] SASC 103
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal, filed out of time, against a sentence imposed by a Magistrate. The appellant pleaded guilty to the offence of basic assault causing harm, contrary to section 20(4) of the Criminal Law Consolidation Act 1935. This offending caused the appellant to breach a bond to be of good behaviour…

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 Scott v Police

Details

AGLC: Scott v Police [2015] SASC 103
Case: [2015] SASC 103
Decision Date: 17 July 2015

CaseChat Overview and Summary

Scott v Police involved an appeal against a sentence imposed by a Magistrate in South Australia. The appellant was convicted of assault and sentenced to imprisonment. The appeal was based on several grounds, including the Magistrate's failure to allow the appellant to seek legal representation before imposing the sentence. The Supreme Court of South Australia heard the appeal and found that the appellant had not been given a fair opportunity to address the court on sentencing matters, leading to a miscarriage of justice.

The legal issues before the court included whether the Magistrate erred in not allowing the appellant to seek legal representation before sentencing and whether there was a miscarriage of justice due to the Magistrate's failure to consider all relevant factors. The court also considered whether the Magistrates Court file accurately reflected the nature of the charge and the correct form of the offence.

The court found that the appellant should have been allowed to seek legal representation before sentencing, which was not provided. This failure led to a miscarriage of justice as the appellant was not able to adequately address the court on sentencing matters. The court also noted inaccuracies in the Magistrates Court file regarding the nature of the charge and ordered that these be corrected. Consequently, the appeal was allowed, the sentence was set aside, and the matter was remitted to the Magistrates Court for re-sentencing before a different Magistrate. The court further directed that the Magistrates Court correct its file endorsements and Certificate of Record to accurately reflect the charge as basic assault causing harm.

The final orders of the court were to extend the time for appeal to 20 March 2015, allow the appeal, set aside the Magistrate’s sentence and ancillary orders, remit the matter to the Magistrates Court for re-sentencing, and direct the Magistrates Court to correct its records. The court also indicated that it would hear the parties on any consequential orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J

There remains the issue concerning the inaccuracies contained in the Magistrates Court file as to the nature of the charge of which the appellant has been convicted. This issue is reflected in appeal ground (ii) above and briefly described in footnote 2 of these Reasons. It is clear from a reading of the Magistrates Court file and the Magistrate’s Remarks on Penalty that the appellant was charged with, pleaded guilty to and was sentenced for, the offence of assault in its basic form. It will be necessary to make an order directing that the relevant court records be amended to reflect the correct position and to eliminate references to the aggravated form of the offence. Conclusion The appellant should have been allowed an opportunity to seek legal representation before the Magistrate concluded the sentencing hearing and sentenced the appellant. There has been a miscarriage of justice in this respect. I make the following orders:(1)The time under the rules, within which to appeal against sentence, is extended to 20 March 2015.(2)The appeal is allowed.(3)The Magistrate’s sentence and ancilliary orders are set aside.(4)The matter is remitted to the Magistrates Court for re-sentencing before a different Magistrate.(5)The Magistrates Court is directed to correct its file endorsements and Certificate of Record so as to accurately record the relevant offence as one count of basic assault causing harm.I will hear the parties on any consequential orders.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

After one of the morning adjournments, the appellant went back into court having decided to plead guilty to the assault charge. The appellant was asked to enter the dock by the Magistrate. The prosecutor commenced her submissions on sentence. She informed the Magistrate of the factual basis of the offending by reading from the Apprehension Report. She tendered photographs of the victim’s injuries and the relevant medical notes for those injuries, and read from the appellant’s Offender History Report. The prosecutor then, without notice, applied for the enforcement of the appellant’s breach of his suspended sentence bond. The appellant admitted the breach. The Magistrate and the appellant then proceeded to have a long discussion about the allegations in relation to the assault charge, the victim’s injuries, the appellant’s personal circumstances and possible penalties. The Magistrate then sentenced the appellant. Notwithstanding anything the appellant might have had to say, the Magistrate was clearly of the view that a term of imprisonment should be imposed. His Honour observed as follows.[4]The offending is very serious, there is no doubt whatsoever that a term of imprisonment is appropriate, it is a question of what length of imprisonment and also whether there are any proper grounds for me to consider suspending the term of imprisonment that I impose.[4] Police v Scott MCPAR-14-888, Remarks on Penalty, 5 February 2015, at [13].Consideration The appellant pleaded guilty on the day of trial not having expected to do so and not having planned for this eventuality prior to arriving at court on the day of trial. He was then confronted, without notice, with an application for breach of the suspended sentence bond which breach was based on his late plea of guilty. On the assumption that the bond was in proper form and had been properly entered into, there would be no question that the offence of assault, to which the appellant had just then pleaded guilty, caused him to breach the bond. However, once the pleas were in there were a number of potential sentencing outcomes. The matters to have been considered, and with respect to which the appellant would have been entitled to adduce material evidence or to make submissions, included at least the following:(i)factual matters of mitigation, including evidence of a medical condition from which the appellant allegedly suffered;(ii)the extent to which the factual basis for the offending, asserted by the prosecutor, was conceded or challenged;(iii)whether or not a pre-sentence report should be ordered, and whether or not an opportunity to obtain character references and the like should be provided;(iv)whether or not proper grounds existed to refrain from revoking the suspension of the one month prison sentence;(v)whether or not suspension or partial suspension (pursuant to section 38(2a) of the Criminal Law (Sentencing) Act 1988, in the form as then applied) of any prison term imposed was available in the circumstances, as a matter of law; and(vi)if available at law, whether or not any prison term imposed should, in the circumstances, be suspended or partially suspended.A number of these issues would not easily be fully appreciated by most non-lawyers. It would have been beyond this appellant to have given them proper consideration on the spot, even if they had been drawn to his attention. Issues (i) and (iii), if pressed, could not have been resolved on the day in any event.