TALEB v POLICE - [2008] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TALEB v POLICE
[2008] SASC 70
Judgment of The Honourable Justice Kelly
12 February 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence - appellant charged with assault of a family member contrary to s 39(1) of the Criminal Law Consolidation Act 1935 - magistrate imposed a penalty of 10 months imprisonment and ordered a restraining order under the terms of s 19A of the Criminal Law (Sentencing) Act 1988 and declined to suspend the sentence - whether the sentence was manifestly excessive. Held: magistrate erred by giving insufficient weight to mitigating factors, including appellant's personal circumstances - appellant was a man of good character with no prior convictions - sentence manifestly excessive - appeal allowed - appellant sentenced afresh to 6 months imprisonment to be suspended upon the appellant entering into a bond to be of good behaviour for a period of 2 years.
Criminal Law (Sentencing) Act 1988 s 19A; Criminal Law Consolidation Act 1935 s 39(1), referred to.

TALEB v POLICE
[2008] SASC 70
Magistrates Appeal
KELLY J

This was an appeal against both conviction and sentence in the Magistrates Court at Naracoorte and Mount Gambier on 12 October 2007 and 19 October 2007.
The appellant was convicted after trial of one count of assaulting a family member contrary to Section 39(1) of the Criminal Law Consolidation Act 1935. The learned magistrate imposed a penalty of 10 months imprisonment which he declined to suspend. He also ordered a restraining order under the terms of s 19A of the Criminal Law (Sentencing) Act 1988 in order to protect the victim Ms Cathy Mueller the appellant’s de facto partner of some 20 years.
On the morning of the hearing of this appeal the appellant abandoned the appeal against conviction and the appeal proceeded only in relation to the appeal against sentence. Immediately after hearing argument on that day I allowed the appeal and re-sentenced the appellant to a term of 6 months imprisonment suspended on a bond to be of good behaviour for 2 years. Following are my reasons for allowing the appeal.
Issue on Appeal
The only issue on appeal was whether the sentence of 10 months imprisonment unsuspended was in all the circumstances manifestly excessive. The appellant’s main complaint was that the sentence should have been suspended.
There were complaints that the magistrate misdirected himself during the course of submissions on sentence by commenting that any sentence of imprisonment would not be suspended unless there were compelling circumstances, however it is fair to say that the appellant’s main complaint was, that taking into account all of the appellant’s personal circumstances, the sentence was manifestly excessive.
The respondent conceded that the sentence imposed by the magistrate was at the higher end of the scale appropriate to the offending but nevertheless submitted that the sentence was within the proper exercise of the magistrate’s discretion and should not be interfered with.
Background
On 26 September 2005 the appellant and the victim were still in a de facto relationship. The two had been in a personal as well as business relationship in Naracoorte for approximately 20 years.
The victim described the appellant during the course of their relationship as very jealous and closely controlling of her life. On the day of the offence he came to her home where she was working and demanded that she account for a trip that she had recently made to Lucindale. He was apparently suspicious about the possibility about some other emotional relationship or some competing business relationship.
In the course of an argument that developed between them, the appellant grabbed Ms Mueller by the throat and as she pushed him away he then slapped her repeatedly on the face from side to side. The assault caused her to fall, hitting her head on the back of a hard backed chair. The incident was extremely distressing to the victim and as soon as she was able to get away she telephoned the police.
The Magistrate’s Remarks
The magistrate sentenced the appellant on that factual basis.
In the course of his sentencing remarks his Honour noted that the assault had occurred in the context of domestic violence. He correctly observed that because of the complex considerations involved in issues of domestic violence when sentencing for offences of this nature considerations of both general and personal deterrence are important.
In the course of his remarks his Honour expressed concern about the levels of reported incidents of domestic violence in the South East. He noted that in response to such community concern, the court had recently instigated a special domestic violence court. His Honour also appears to have been concerned by the fact that the appellant during the trial was self represented and the victim had to suffer the added indignity of being cross examined by the appellant personally. He described the appellant’s response to the assault, both on the night in question and subsequently as one of callous indifference to the victim’s plight.
I respectfully agree with the magistrate’s remarks generally on the subject of domestic violence and its effect on the victim. However, I have reached the conclusion that his Honour’s understandable emphasis on the levels and effects of such violence in relation to victims may have caused him to overlook the mitigating factors in the appellant’s personal circumstances.
The Appellant’s personal circumstances
The appellant who is now 42 years of age, was a man of good character prior to this offending and had no previous criminal convictions.
Both the appellant and the victim had lived and worked in the South East for a period of 20 years prior to this offence. The relationship had broken down by the date of the trial although there appears to have been some attempt on the part of both the appellant and the victim to resurrect the relationship after the offence but before the trial. Since the breakdown of the relationship the appellant has returned to Sydney where he is now employed in a family business. Of some importance is the fact that there was no suggestion that this offending occurred in the context of a course of conduct of similar behaviour.
This offence at the time attracted a maximum penalty of 3 years imprisonment.
After taking into account all of these matters and in particular the appellant’s personal circumstances and the fact that there was no suggestion that the assault was committed as part of a continuing course of conduct I considered that the sentence of imprisonment of 10 months for a first offender to be manifestly excessive.
In re-sentencing the appellant I took into account all of the circumstances before the magistrate. In addition to that I took into account the fact that the appellant spent 6 weeks in custody after his sentencing on 19 October 2007 and prior to being granted bail pending the hearing of this appeal. For all those reasons I considered a sentence of 6 months imprisonment to be appropriate.
In the exercise of my discretion I also considered it appropriate to suspend the sentence of imprisonment. I note in particular that the appellant is a first offender, that there is no suggestion of any course of conduct involved in his offending and that prior to and subsequent to the offending the appellant has been gainfully employed. He has now moved to Sydney and there is every reason to suppose that he will not re-offend.
In those circumstances I considered the objectives of both personal and general deterrence could be achieved by the imposition of a suspended sentence. For those reasons the orders of the court were:
1.the sentence of 10 months imprisonment imposed by the magistrate is set aside
2. the restraining order imposed by the magistrate will stand
3.the appellant is sentenced to a period of 6 months imprisonment. That sentence is suspended upon the appellant agreeing to enter into a bond to be of good behaviour for a period of 2 years.