SMITH v Police - [2009] SASC 249

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SMITH v POLICE
[2009] SASC 249
Judgment of The Honourable Justice Kelly
20 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Appeal against sentence - appellant pleaded guilty in the Adelaide Magistrates Court to one count of assault occasioning actual bodily harm contrary to s 40 of the Criminal Law Consolidation Act 1935 and one count of property damage contrary to s 85(3) of the Criminal Law Consolidation Act - magistrate recorded a conviction and imposed a penalty of seven months with an order that the appellant serve two months in prison and that he be released on a bond to be of good behaviour with certain conditions for the balance of five months - whether sentence imposed of seven months was manifestly excessive - whether magistrate erred in failing to completely suspend the term of imprisonment imposed.
Held: Appeal allowed - seven months imprisonment was justified - magistrate erred in requiring the appellant to serve a period of two months of the seven month sentence under the provisions of s 38 of the Criminal Law (Sentencing) Act 1988 - sentence set aside - magistrate's sentence interfered with only to extent of fully suspending the sentence of imprisonment and extending the bond to be of good behaviour by nineteen months.
Criminal Law Consolidation Act 1935 (SA) s 40, s 85(3); Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.

SMITH v POLICE
[2009] SASC 249
Magistrates Appeal
KELLY J:
Introduction

The appellant was convicted on his plea of guilty in the Adelaide Magistrates Court to one count of assault occasioning actual bodily harm contrary to Section 40 of the Criminal Law Consolidation Act 1935 and one count of property damage contrary to Section 85(3) of the Criminal Law Consolidation Act. The maximum penalty for the offence of assault occasioning harm is five years imprisonment and for the offence of property damage two years imprisonment.
On 5 June 2009 the magistrate recorded a conviction and imposed a penalty of seven months with an order that the appellant serve two months in prison and that he be released on a bond to be of good behaviour with certain conditions for the balance of five months. The appellant was also ordered to pay compensation in respect of the property damage charge of $145. The appellant appeals against the sentence on two grounds. The first, that the sentence of seven months was manifestly excessive, the second, that the magistrate erred by failing to completely suspend the term of imprisonment imposed.
On the hearing of the appeal although not expressly abandoning the first ground, counsel for the appellant, mainly directed his submissions to the second ground that the exercise of the magistrate’s discretion to suspend had miscarried. Specifically it was contended that the magistrate gave insufficient regard to the fact that an immediate sentence of imprisonment was likely to disrupt if not end, the appellant’s employment and that the magistrate failed to have sufficient regard to the fact that the appellant had already spent seventeen days in custody in respect of this matter. Counsel for the appellant pointed to the magistrate’s comments in the course of his sentencing remarks that he would have ordered that the appellant serve a longer period on a bond had he the power to do so.
Background
At the time when these offences were committed the appellant was twenty three years old.
On Saturday 17 December 2005 the appellant was a passenger in a vehicle being driven by another man. Another road user, the victim Mr Gary Pawson, observed the driving manner of the vehicle in which the appellant was travelling and took objection. In fact as he passed the vehicle in which the appellant was travelling, he shouted out words to the effect of “You bloody idiot”. At the next traffic lights the appellant and his driver alighted from their vehicle and approached the driver’s side of the victim’s vehicle. The driver’s window was open and the victim was seated, strapped in his vehicle with the engine running waiting for the red lights to change before he could proceed on with his journey. The appellant reached through the open window and punched the victim to his head with a clenched fist. He also tried to pull the victim out of his car and during that the victim’s head hit the door. These two acts comprise the assault charge.
During the incident the appellant, who was carrying a beer bottle, dropped it on the floor of the victim’s car and the contents spilt out. That act formed the basis of the charge of damaging property.
As a result of the incident the victim sustained a cut and bleeding to his head as well as some bruising.
The matter took some time to get to court. This was not the appellant’s fault as the police did not lay an Information in the Magistrates Court until two years after the event. However, there were substantial delays in finalising the matter after the court proceedings commenced. Some of this was attributable to the appellant’s failure to progress the matter, some of it appears to have been due to the lengthy delays which occurred in the court listing the matter.
The appellant was not penalised for the delays in any way, however he was not entitled to, and did not receive, the full discount which he would otherwise have been entitled to had he entered a timely plea.
The appellant spent seventeen days in custody apparently after appearing in court and refusing to enter a plea on a previously agreed basis in February 2009.
In any event the end result of that was that the appellant spent seventeen days in custody until a Supreme Court Judge released him on bail pending the outcome of submissions in the Magistrates Court.
In sentencing the appellant the magistrate described the incident as “an act of utter thuggery and nothing less than that”. The magistrate took into account the fact that it was a spontaneous offence, the fact that it was out of character and that the appellant was remorseful for what he had done. Nevertheless the magistrate considered that in the light of the prevalence of what might be described as road rage incidents, both general and personal deterrence took precedence over the mitigating factors personal to the appellant.
Discussion and Conclusion
There appears to be a disturbing increase in our community of violent incidents between road users of the type which occurred here. Often they result in serious injury or even death. The magistrate was therefore correct in taking such a serious view of the appellant’s offending. The sentence of seven months imprisonment was entirely justified in all of the circumstances.
However, I have reached the conclusion that the magistrate did err in requiring the appellant to serve two months of the seven month sentence in custody. The magistrate plainly reached the conclusion that the appellant needed a short, sharp sentence of immediate imprisonment followed by a lengthy bond. That conclusion was also justified, however, the difficulty with the sentence as a whole flows from the fact that by utilising the provisions of Section 38 of the Criminal Law (Sentencing) Act 1988 (SA) the magistrate was not empowered in the circumstances to impose a bond with the requisite conditions for longer than a period of five months.
In my view it was within his power to impose a sentence which would require the appellant to complete a much lengthier bond in light of the fact that by virtue of the magistrate’s previous order, the appellant had already spent seventeen days in custody on account of this offending.
The magistrate’s reasoning in remanding the appellant in custody prior to finalising a sentence can only have been to impress upon the appellant the seriousness of the situation that he was in. It appears from submissions that were made before the magistrate, the period of incarceration of seventeen days did have the desired effect on the appellant.
In these circumstances I consider that the magistrate’s decision to utilise the provisions of s 38 of the Criminal Law (Sentencing) Act inappropriately limited the scope of the bond which he correctly perceived was required in the particular circumstances of this appellant.
At the date of sentencing in June 2009 there was every reason to suppose that the appellant’s rehabilitation was well under way. His prior criminal history disclosed that he had not previously been convicted of any offence involving violence to the person, nor had he ever been previously sentenced to any term of immediate imprisonment. Nearly three years had elapsed since the date of the offending, the appellant had a good work record and from the material available to the magistrate, every chance of continuing with his current employment. Given the age of the appellant, the change in his family circumstances in the intervening period between the date of the offending and the date of his sentencing, there was every reason to be cautiously optimistic that the appellant would not offend again.
In my respectful view the magistrate did not, in these circumstances, give sufficient weight to the period of time already spent in custody by the appellant prior to sentencing or to the fact that at the date of sentencing he had obtained what appeared to be an ongoing position with his current employer.
For these reasons I consider it appropriate to interfere with the magistrate’s sentence only to the extent of setting aside the partial order for suspension and wholly suspending the seven month term of imprisonment. I would interfere with the terms of the bond only to the extent of extending the bond by a period of nineteen months so that effectively the appellant will now be required to complete a bond to be of good behaviour for two years from today’s date.
In all other respects the orders made by the magistrate including the order for compensation will stand.