Sumner v Police

[2004] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

SUMNER v POLICE

Judgment of The Honourable Justice White (ex tempore)

28 May 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING

Appeal seeking suspension of imprisonment imposed by Magistrate - Appellant charged on complaint with damaging property without lawful authority and assault - pleaded guilty to all counts - Appellant convicted on all counts - Magistrate imposed one penalty of two months - declined to suspend sentence.

Held:  Appeal allowed - Magistrate erred in failing to exercise his discretion to suspend sentence - personal position and personal circumstances constitute good reason to suspend sentence - sentence set aside - in lieu thereof Appellant sentenced to imprisonment of two months but sentence to be suspended upon Appellant entering into a bond in the sum of $500 and to be of good behaviour for a period of two years.

Criminal Law Consolidation Act 1935 s 39, s 85; Criminal Law (Sentencing) Act 1988 s 18A, s 38, referred to.

SUMNER v POLICE
[2004] SASC 158

Magistrates Appeal

WHITE J: This is an appeal against sentence. The appellant was charged on complaint with two counts of damaging property without lawful authority, contrary to s85(3) of the Criminal Law Consolidation Act 1935, and one count of assault contrary to s39(1) of the Criminal Law Consolidation Act.  In each of the counts of unlawful damage, the damage alleged was less than $2500.

The matter came on before a stipendiary magistrate at Berri on 30 March 2004. The appellant was represented. He pleaded guilty to all counts. The circumstances of the offences are set out in the affidavit of Andrew Heffernan, the police prosecutor, as follows:

“At about 1 pm on Thursday, 1 January 2004, the victim was at his camp on the bank of the River Murray at Berri when the defendant came to his camp and began arguing with a female, who was at the camp. The defendant then trashed the victim’s tent, damaging the tent poles and zip. At the time tent was valued at $60.  At 1 am on 2 January 2004 the victim was again at his camp and in his car, when the defendant attended and started hitting the windows with a tyre lever, breaking the window and causing approximately $800 worth of damage. The defendant began spitting at the victim. The victim states that he did not provoke the attack.”

The magistrate convicted the appellant on all counts, and pursuant to s18A of the Criminal Law (Sentencing) Act 1988 imposed one penalty of two months imprisonment for all counts. The magistrate declined to suspend that sentence.

In his sentencing remarks the magistrate said:

“This is a very serious matter.  There is an element of provocation. In reality you had no business approaching the camp site and, in any event, no authority to behave in the way you have admitted.  In my assessment, this calls for imprisonment. 

On penalty, I record a conviction and you are to be imprisoned for two months to commence forthwith. 

I have given consideration to suspension of the sentence, but in my assessment there is nothing here that would warrant such leniency.  The allegations are particularly unfortunate; allegations of spitting at the victim and substantial damage to the said motor vehicle and tent.  In those circumstances, I decline to order a suspension of the sentence. 

If you continue to behave in this way the penalties will increase markedly.”

The appellant does not complain of the sentence of imprisonment.  His sole ground of appeal is that the magistrate erred in not suspending the sentence.  The relief he seeks on appeal is an order quashing the order for imprisonment imposed by the magistrate.  The magistrate’s sentencing remarks indicate that he was particularly influenced in the view to which he came about not suspending the sentence by reason of the circumstances of the offences.  That conclusion is understandable, given that the conduct involved a degree of wanton violence.

But there are other circumstances which should be considered in determining whether good reason exists.  In particular, those circumstances are the personal position and personal circumstances of the appellant.

I have had today a brief explanation of the circumstances in which the offence occurred and of the appellant’s personal circumstances.  In my opinion those circumstances do constitute good reason for suspension of the sentence.  I am confirmed in that view by the concession made by the respondent’s counsel to the effect that the magistrate did err in failing to exercise his discretion to suspend the sentence of two months imprisonment.

A suspended sentence is a very real form of punishment.  In addition, a term of the suspension will be that the appellant be subject to a bond and therefore he will be liable to be sentenced further in the event of a breach of the bond.

So, for the reasons I have given, my conclusion is that the magistrate did err in failing to suspend the sentence, and I propose to exercise the discretion under s38(1) of the Criminal Law (Sentencing) Act by suspending the sentence.

The orders of the court are:

1. That the appeal against sentence be allowed;

2. That the sentence of the magistrate be set aside;

3. In lieu thereof the appellant is sentenced to imprisonment for two months but that sentence is to be suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of two years.