Shaw v Police No. Scgrg-99-1096 Judgment No. S438

[1999] SASC 438

SHAW v POLICE

[1999] SASC S438

MAGISTRATES APPEAL

1 MILLHOUSE J.        There seems to me to be a dispute of facts here.  The accused pleaded guilty to an act likely to cause harm.  What happened was that the appellant smashed the windscreen of a car, in a carpark at night, as the driver, a young woman, was attempting to drive away.  The woman says that the accused followed her to the car before the attack.  The appellant says, he thought he recognised the car as belonging to someone who owed him money, that he did not follow the woman to the car.  The learned special magistrate has adopted the victim's account, saying the appellant followed a person to a car. 
2 She ended her sentencing remarks by saying:
"I have no doubt at all that a sentence of imprisonment is clearly called for and that suspension is simply not an option given the seriousness of the circumstances of the offending."
3 She gave him four months. 
4 Mr McGee for the appellant, argues that the learned magistrate should have cleared up the discrepancy instead of accepting the prosecution version which shews rather more serious offending.  This may have tipped the scales against suspension. 
5 The solicitor for the appellant at the Magistrates Court hearing, in an affidavit says:
"Her Honour raised some questions in relation to the appellant's version of events.  I submitted that if she was not prepared to sentence him on the basis of his version of the events then the matter would need to be set down for a disputed facts hearing.  She proceeded with the matter."
6 With respect, I do not think the learned magistrate should have proceeded.  The appeal will be allowed.  The conviction and sentence set aside and the matter remitted to the Mount Gambier Magistrates Court for hearing afresh by another magistrate.