SOKOLOVIC v POLICE - [2010] SASC 346

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SOKOLOVIC v POLICE
[2010] SASC 346
Judgment of The Honourable Justice Peek
20 December 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
Appeal against sentence – appellant assaulted victim while at Adelaide Casino at 5am on 21 March 2010 – appellant pleaded guilty to one count of assault causing harm contrary to s 20(4), Criminal Law Consolidation Act 1935 (SA) – Magistrate imposed a custodial sentence of 6 months – sentenced not suspended – whether sentence imposed was manifestly excessive – whether Magistrate erred in failing to suspend the sentence – whether Magistrate erred in her use of appellant’s offender history.
Held: appeal dismissed – sentence imposed was not manifestly excessive – sentence was moderate in all of the circumstances – assault was particularly vicious – Magistrate did not err in her discretion to fail to suspend sentence – Magistrate did not misuse appellant’s offender history - substantial weight had to be given to personal deterrence in this case.
Criminal Law Consolidation Act 1935 (SA) s 20(4), referred to.
Dinsdale v The Queen (2000) 202 CLR 321, considered.

SOKOLOVIC v POLICE
[2010] SASC 346
Magistrates Appeal

PEEK J. This is an appeal against sentence following the appellant’s plea of guilty to a charge on Information that he on 21 March 2010 at Adelaide assaulted the victim and thereby caused harm to him contrary to s 20(4), Criminal Law Consolidation Act 1935 (SA).
The facts leading up to the assault
The facts as they were eventually accepted by the prosecution, and upon which the appellant was sentenced, were as follows.
The appellant was at Adelaide Casino from about 9pm on the evening prior to the assault and by the relevant time of about 5am the following morning, 21 March 2010, he had consumed between fifteen and twenty serves of scotch and coke and four or five strong drinks known as “shooters”. Just before the subject incident, the victim who was unknown to the appellant, attempted to walk through a group of five people including the appellant. At that time, the victim and appellant made eye contact and the victim commenced a dialogue with the appellant beginning with words to the effect “what are you looking at?” The appellant replied “I am security, have you got ID?”. The appellant was, of course, not associated with any security organisation. Further words were exchanged. The victim then said to the appellant words to the effect that he had mates around the corner and that he would go and get them and come back and to “see how smart you are when they beat the shit out of you and put you in hospital”.
At that time, a friend in the company of the appellant intervened and said to the victim words to the effect “relax and f… off”. The victim then turned to that friend and further heated words were exchanged. The victim then walked away and what follows is captured on video footage.
The video evidence
Video footage taken by Adelaide Casino cameras of the events immediately prior to and during the assault itself, was tendered before the Magistrate and viewed by her Honour on a number of occasions. It was played twice during the course of the appeal hearing and I have also carefully considered it in chambers. Its quality was quite good although there was no accompanying sound track. The appellant at no time suggested that there was anything connected with the taking and recording of the footage which derogated from its reliability or its ability to inform the Court accurately as to the events that it depicted. I myself was not able to perceive any such defect.
The relevant footage shows the victim walking at a brisk pace in a straight direction. He is slightly ahead of another male, larger than the victim, who was then to the victim’s right hand side and slightly to his rear. The victim stops, turns around and appears to briefly exchange some words with him when he draws level to the victim on his right hand side. On the submissions of the appellant, this was the friend of the appellant who had told the victim to “relax and f… off”.
The victim makes no move which appears to be threatening and the other male makes no move indicative of any apprehension on his part. This apparent conversation was extremely brief, being in the order of only a very few seconds.
The victim then turns to face the direction in which he had previously been walking and had only just started to again walk in that direction when the appellant, who was substantially larger than the victim, is seen to run up behind the victim and deliver a very powerful blow with his right clenched fist to the rear of the victim’s head, just to the right of the centre line. It appeared to be a precise, well executed and very heavy blow. It immediately resulted in the victim dropping to the ground in what appeared to be an unconscious state. The appellant then went up to the prone victim and delivered a carefully executed, heavy kick to the head of the victim. The appellant briefly paused and then delivered a further punch with his right hand to the head of the victim which was a very deliberate blow, although apparently not as heavy as the first punch. From the time of the very first blow and throughout the time of the kick and second punch the victim was motionless and showing not the slightest ability to protect himself, let alone presenting any risk of being aggressive to the appellant. A striking feature of the video footage was the high degree of apparent care and deliberation with which the appellant delivered each of the two punches and the kick.
The appellant was then pulled away from the position of the victim by one of his friends. The Magistrate describes the appellant as “trying to kick” the victim again while he walked away with his friend and I can well understand why her Honour thought that to be the case. However, it has been agreed on appeal between the appellant and the respondent that it can not be established beyond reasonable doubt that this last manoeuvre was a deliberate attempt to kick by the appellant and I will approach the resolution of this appeal strictly on that basis.
It is also to be noted that in the Magistrates Court, it was agreed between the prosecution and the appellant that the appellant, in his intoxicated state, may well have thought, at the time of the first blow, that he needed to defend his friend, with whom the victim was speaking immediately prior to the assault, but there was no reasonable basis for the appellant to have held such a belief and nor was the appellant’s response proportionate to any perceived threat.
The victim’s injuries
The victim was taken to the Royal Adelaide Hospital. He was unconscious for several minutes following the first punch and required treatment for a cut above his left eye. He appears not to have sustained any permanent injury. In my view, he was fortunate; the force of the attack, particularly the first blow, could easily have led to greater injury than in fact eventuated.
The appellant’s antecedents prior to the assault
Counsel then appearing for the appellant before the Magistrate informed her Honour that the appellant was born on 7 December 1988 and was 21 years old at the time of the offence. He had always been in steady employment since leaving school after Year 12 and at the time of the offence was working at a flooring business. He tendered a reference from his employer which established that he was a good and dependable worker there. He also tendered a number of other references testifying to the appellant’s good character and to his community works particularly in volunteer work at a soccer club.
The appellant had previously been sentenced on 15 October 2009 following a plea of guilty to two counts of assault causing harm committed on 18 January 2009, one being an assault on a female. On that occasion the Magistrate had imposed a global penalty of a fine of $1,500 without recording a conviction. He had at the time given the appellant an emphatic warning that further such offending would “almost inevitably” result in imprisonment, thereby meaning, and being taken to mean, custodial imprisonment.
The appellant’s antecedents between the assault and sentencing by the Magistrate
Counsel then appearing for the appellant before the Magistrate informed her Honour that the appellant had since the subject assault seen a psychiatrist on a number of occasions in relation to anger management and had attended at the Drug Alcohol Service in relation to his excessive drinking. He tendered reports from Blue Sky Psychology and from the Drug and Alcohol Service which confirmed these submissions and attested to his good progress.
Sentencing by the Magistrate
The Magistrate sentenced the appellant to imprisonment for six months and declined to suspend the sentence.
The grounds of appeal
The amended grounds of appeal are as follows:
Ground 1
That the sentence imposed was manifestly excessive.
Ground 2
That the Learned Sentencing Magistrate erred in failing to exercise her discretion to suspend the sentence of imprisonment imposed.
Ground 3
That the Learned Sentencing Magistrate erred in her use of the appellant’s offender history in the sentencing process in that any or all of the following occurred:
3.1     Undue weight was afforded to the offender history
3.2     The offender history was regarded as a matter of aggravation
3.3     The appellant was effectively re-sentenced on the previous offending
Submissions on appeal
Counsel commenced his submissions by drawing my attention to the fact that the appellant had been charged with a further assault, being an alleged blow to the face of a female on 13 December 2009, which charge is in addition to the present case and the previous matter to which I have referred above. He indicated that the appellant is contesting that charge and accordingly should be afforded the presumption of innocence in relation to it. I accepted that proposition and accordingly I ignore that allegation entirely.
Counsel closely scrutinised her Honour’s reasons. He stressed that the appellant, due to the state of his intoxication, had held a wrong headed view that it was necessary to hit the victim in some form of preventive self-defence. However, it remains the fact that the extent to which such intoxication can be used as a mitigating factor in this way is very limited. There was objectively no need to punch the victim from behind, let alone in the way that he did. Further, it is clear that the appellant could not possibly have believed that the kick or second punch was in any way necessary for defence in circumstances where it was quite clear that the victim was by then totally unable to pose any threat to anyone.
Counsel further submitted that the kick which had been referred to as a kick by the Magistrate on most occasions, but as a stomp on one occasion, was a kick and not a stomp; and that the second punch was more correctly described as a rap rather than a punch. I considered that these criticisms were little more than semantics; they did not derogate from the force and deliberate nature of the blows which were very obvious on the video footage. Her Honour described the assault as a whole as “particularly vicious”. In my view, there can be no reasonable disagreement with that description.
Counsel further submitted that her Honour had over emphasised the fact of the prior assault and the leniency with which the appellant had been treated on that occasion. In my view, the correct interpretation of her Honour’s remarks was plainly that the appellant had previously received the benefit of a lenient disposition but that he had been strongly and clearly warned on that occasion that another assault was highly likely to attract a sentence of imprisonment and yet, despite that, he had again offended within quite a short time after that sentence. In those circumstances it could very properly be said that such measures had failed to deter the appellant and stronger measures had to be considered to achieve that end.
Counsel rightly referred to the authorities in relation to the hesitancy with which a first custodial prison sentence is imposed, particularly on a youthful offender. However, it is clear to me that her Honour took all such matters into account. She was entirely aware of his youth, of his antecedents and of the detrimental effect of custodial imprisonment on his employment. In my view, her Honour did not misstate any of such matters or leave any relevant matter out of account.
Her Honour indicated that but for the plea of guilty she would have imposed a sentence of 8 months which she reduced to six months on that account. This order or percentage of reduction could not be objected to and counsel did not do so.
Counsel rightly stressed that imprisonment (that is to say before any suspension decision) is a matter of last resort. I agree, but there is no reason to suppose that her Honour proceeded on any other basis. In short, her Honour considered that, having regard to the previous disposition which had not deterred the appellant from engaging in a particularly vicious and dangerous assault, substantial weight had to be given to personal deterrence in this particular case.
I agree with the Magistrate as to the imposition of a sentence of imprisonment here and in my view there is no basis upon which the length of the sentence can be said to be manifestly excessive. I have to say that I consider the sentence moderate in all the circumstances.
As for her Honour’s decision not to suspend the sentence, that decision was well open to her; applying the approach in Dinsdale v The Queen,[1] it can not here be established that her Honour erred in her approach to, or exercise of, the suspension decision. Although it is not relevant, I agree with her Honour’s decision not to suspend the sentence in all the circumstances.
[1] (2000) 202 CLR 321.
As stated above, her Honour proceeded on the basis that the appellant was “trying to kick” the victim again while he walked away with his friend. It was agreed that this was a mistake to the extent that it could not be proven beyond reasonable doubt in the circumstances that that was his subjective intention. Her Honour did not in any way suggest that contact had been made at that time. It is my view that this aspect was so insignificant when viewed against the background of the seriousness of the three blows where contact had been made, that it can have made no difference to her Honour’s sentencing. In my view, the appellant has not made out any ground of appeal that enlivens a need to re-sentence.
I should add that, in any event, if I proceeded to a re-sentencing (and put aside any suggestion of a final attempt to kick as I would) there is no doubt that I would come to a sentence somewhat higher than her Honour’s but I would then cap such sentence at the level of her Honour’s sentence of six months imprisonment since there is no Crown appeal. I would not suspend the sentence. Accordingly, such a process would be of no value to the appellant.
Conclusion
I dismiss the appeal.