Stephen v Szabo
[2014] ACTSC 290
•22 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stephen v Szabo |
Citation: | [2014] ACTSC 290 |
Hearing Date: | 22 October 2014 |
DecisionDate: | 22 October 2014 |
Before: | Burns J |
Decision: | See [12] |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – assault occasioning actual bodily harm – re-sentence APPEAL – Appeals From and Control Over Magistrates – whether sentence is manifestly excessive – whether children present within sight or hearing of the offence – appeal upheld – re-sentenced |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 |
Parties: | Joshua Robert Stephen (Appellant) Allora Joan Szabo (Respondent) |
Representation: | Counsel Mr Davies (Appellant) Mr Thomas (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 51 of 2014 |
Decision under appeal: | Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 3 June 2014 Case Title: Allora Joan Szabo v Joshua Robert Stephen Court File Number: CC13/11801 |
Burns J:
On 3 June this year, the appellant was sentenced to nine months’ imprisonment for an offence of assault occasioning actual bodily harm (CC13/11801). That offence is contrary to s 24 of the Crimes Act 1900 (ACT) and carries a maximum penalty of five years’ imprisonment. The appellant now appeals against that sentence on the grounds that the sentence is manifestly excessive, and, secondly, that the Magistrate failed to consider a sentence other than full-time imprisonment.
A third ground of appeal was pleaded in the Notice of Appeal, but that has now been abandoned. Mr Davies, and I think quite correctly, ultimately accepted the proposition that the Magistrate had not failed to consider a sentence other than full-time imprisonment and his submission became one that the Magistrate had not given adequate consideration to the alternatives to a sentence of imprisonment to be served by way of full-time imprisonment, and as such, that ground of appeal effectively became a particular of the first ground of appeal, that the sentence is manifestly excessive.
The facts are that on 28 December last year the appellant attended the victim’s residence. The victim was apparently a friend of the appellant but the appellant had some form of grievance with him at that time. The victim asked the appellant to leave his property as the appellant was behaving aggressively, and the victim said that this was inappropriate as there were children present. I will return to that issue shortly. The appellant refused to leave and the victim pushed him to the chest. The appellant then punched the victim twice to the right-hand cheek with his left fist. The victim fell backwards, tripped over on a scooter and hit his head on a concrete driveway and the appellant then left the scene. The victim suffered a fractured jaw and what was described as a small brain bleed at the back of the head.
The sentence imposed by the Magistrate was a discretionary judgment. As such, this Court may only set aside that judgment where it is demonstrated that some error of fact or law has been made by the sentencing magistrate, or where I am satisfied that in this case the sentence is manifestly excessive. A finding that a sentence is manifestly excessive cannot be made simply because the sentence imposed was not one that I would have imposed. It must be so manifestly unjust that I can infer error on the part of the Magistrate from the sentence itself.
The appellant accepts that the offence of assault occasioning actual bodily harm is a serious offence, carrying, as it does, a maximum penalty of five years’ imprisonment. His complaint, as articulated before this Court today, is not that the sentence of nine months’ imprisonment was in itself manifestly excessive, but that the order that the sentence be served by way of full-time imprisonment was manifestly excessive. As such, the appellant’s contention is that the order by the Magistrate as to how the sentence was to be served is what was manifestly excessive.
I may say that I am satisfied on the material before me that a specific error was made by the Magistrate. Whilst a specific error does not need to be demonstrated by the appellant with respect to the ground of appeal that the sentence imposed was manifestly excessive, and the Notice of Appeal does not, as it presently stands, plead this particular error, I am satisfied that the finding by the Magistrate that there was an aggravating circumstance proved beyond reasonable doubt by the prosecution in the proceedings in the Magistrates Court, being that the offence occurred in the presence of children, was an error on the part of the Magistrate.
The Statement of Facts does not assert that there were children who were actually present within sight or hearing of the events that occurred on 28 December 2013. The Statement of Facts merely says that the victim asserted that the appellant’s conduct was inappropriate because there were children present. Precisely what was meant by the complainant when he said there were children present was not in any way explained in the Statement of Facts, nor was it explored in the proceedings before the Magistrate. The statement that there are children present is an ambiguous one and may mean that there were children who were actually in the vicinity who could see and hear what was occurring, or alternatively, it may mean that there were children, for example, inside the house or in the backyard, such that any violence would be inappropriate between the appellant and the complainant.
In the absence of clear material, either in the Statement of Facts or otherwise, that there were children who were actually present in the vicinity able to see and hear what occurred between the appellant and the complainant, the finding by the Magistrate that there was an aggravating circumstance constituted by the offence having occurred in the presence of children was, in my view, an error. To the extent that it may be necessary for the Notice of Appeal to be amended in order to reflect an allegation that the Magistrate made such an error, I would grant leave for the Notice of Appeal to be so amended.
I am also satisfied that the sentence imposed by the Magistrate is manifestly excessive, not in terms of the length of the sentence, but in the way in which the sentence was to be served. Effectively, her Honour has abandoned any concept of rehabilitation in the sentence which was imposed. There was clear material before her Honour that the appellant was expressing himself to be willing to undergo rehabilitation to respect to drug and alcohol abuse. It is not clear on the Statement of Facts that either drug or alcohol use was a feature with respect to the present offending, although the Magistrate does make reference to the fact that the appellant had been using methamphetamines, which were notorious for provoking violent behaviour.
There was also evidence before the Magistrate that the appellant had psychological issues which also may need to be addressed. The sentence imposed by the Magistrate completely ignores those issues, with respect, in terms of there being any prospect of rehabilitating the appellant before he was released from custody. The Magistrate was entitled to be somewhat cynical about the assertions by the appellant that he was willing to undertake a form of residential rehabilitation or indeed any other form of rehabilitation program which might be appropriate for his conduct or conditions.
If her Honour was so minded, the appropriate course, in my view, was not simply to dismiss the postulations of the appellant that he was willing to undergo residential rehabilitation, but effectively to give him an opportunity to demonstrate his willingness to undergo such a program. To simply impose a sentence of nine months’ imprisonment means that at the end of that time, the appellant would be released from prison without the community having the benefit of him undergoing appropriate treatment with respect to psychological issues and also drug and alcohol abuse issues. Once he is released, the prospect of him maintaining any commitment to undertaking such a program must, to a certain extent, be diminished.
In my opinion, it was a manifestly excessive sentence imposed by the Magistrate in the sense that it made no provision for early release upon the appellant complying with appropriate grounds relating to undertaking or accepting the supervision of corrective services and undertaking relevant rehabilitation programs. The penalty imposed by the Magistrate would be confirmed, that is the sentence of nine months’ imprisonment, but I will vary the sentence imposed by the Magistrate to this extent: that that sentence will be suspended forthwith upon the appellant signing an undertaking to be of good behaviour for a period of two years from this date with the following conditions:
(a)that the appellant is to accept the supervision of ACT Corrective Services for that period of two years or such lesser period as may be deemed appropriate by his supervising officer;
(b)that he is to undertake such counselling or treatment including residential rehabilitation treatment if directed as directed by ACT Corrective Services, particularly directed towards alcohol and other drug abuse and also emotional and psychological issues; and
(c)that he is to undertake random urinalysis as directed by ACT Corrective Services or by any delegate of that service.
Mr Stephen, there is no doubt that this offence was a serious one and it deserved a term of imprisonment. Now, I’m giving you an opportunity not to have to serve the remaining five months of that sentence. Whether you serve the remaining five months is now going to be very much in your own hands. If you comply with the directions that are given to you by Corrective Services over the period of two years, or such lesser period as they may deem appropriate, and if you commit no further offences within that two-year period, then there is no reason why you should serve the remaining five months of the sentence. However, if you don’t comply with the directions that are given to you by Corrective Services, which may well include undertaking some form of residential rehabilitation program, or alternatively, if you commit some further offence within the two-year period of the good behaviour order, then you should expect to serve to serve out the remainder of that sentence of imprisonment that was imposed.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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