TALEPOROS v Police - [2008] SASC 252

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TALEPOROS v POLICE
[2008] SASC 252
Judgment of The Honourable Justice Bleby
18 September 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence imposed by Magistrate – appellant convicted of one count of aggravated assault causing harm – sentenced to six months imprisonment, not suspended – whether Magistrate declined to suspend sentence because appellant pleaded not guilty.
Whether undue weight placed on appellant’s previous offending – whether sufficient weight placed on effect of sentence on appellant’s dependants and appellant’s prospects of rehabilitation – whether sentence manifestly excessive – appeal allowed – re-sentence – allowance for 2½ months in custody – appellant re-sentenced to three months imprisonment, suspended upon appellant entering into a good behaviour bond.
Criminal Law Sentencing Act 1935 (SA) s 20; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
Markarian v The Queen (2005) 228 CLR 357, applied.

TALEPOROS v POLICE
[2008] SASC 252
Magistrates Appeal: Criminal

BLEBY J: The appellant was charged with one count of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The offence occurred on 1 June 2007. The appellant pleaded not guilty but was found guilty after a trial in the Magistrates Court of South Australia. He was sentenced on 3 July 2008. The Magistrate imposed a penalty of six months imprisonment. The sentence was not suspended.
The appellant now appeals against the sentence on the ground that it was manifestly excessive and that the Magistrate erred in declining to suspend the sentence.
On the evening in question the 22-year-old victim, Mr Jackway, visited the home of his then girlfriend, Ms Tanya Roissetter. The back yard of Ms Roissetter’s home adjoined the back yard of the appellant. The appellant had not previously met Mr Jackway. However, some six months earlier he had received a telephone call from a person who identified himself as Steve Jackway, and who had asked to buy ecstasy. The call was received on the appellant’s mobile phone which, at that time, was operating on a sim card which belonged to his then 14-year-old son, who was then living with his mother. The appellant said that he later received a text message from the same person asking to meet somewhere. He interpreted the message as related to the buying or selling of drugs. The appellant was incensed that this person should be dealing in drugs with his 14-year-old son. He claimed that he reported the matter to the police, but that no action had been taken.
On the occasion of the assault, the appellant’s same son was at the appellant’s home pursuant to the terms of a home detention bail condition. The appellant was aware that his son was in the back yard of his home with friends.
There had obviously been some exchange between the people over the back fence that evening. There was nothing to suggest that this had been acrimonious. The appellant knew Ms Roissetter, and at the time of the trial she had become his de facto partner.
On the occasion in question, the appellant went into his back yard and up to the adjoining fence. He was introduced to Mr Jackway over the fence by Ms Roissetter. Jackway extended his hand as if to shake hands. The appellant rejected the invitation to shake hands and, without warning, punched Mr Jackway in the mouth and knocked him to the ground. Jackway asked, “What was that for?” The appellant replied, “Trying to buy drugs from my son.”
Jackway gave evidence that he had indeed made the telephone calls some six months earlier inquiring about the purchase of drugs. He had made them to a mobile number which had been given to him, but he had no idea of the identity of the person whose number it was or of the person who answered the phone. He was quite unaware that it was the appellant.
When the victim got up from being punched he was angry, punching at the fence, but made no contact with the appellant. The appellant again punched Jackway in the face and he fell back a second time. There was a third blow inflicted by the appellant by striking Jackway on the head with a hollow metal tube about 60-80cm long. It was the use of that tube as an offensive weapon which caused the offence to be an aggravated offence.
As a result of the assault, Jackway suffered a bruise on his head from the blow with the tube, from which he suffered headaches for some time, a swollen face, and a damaged tooth which he had to have extracted.
The appellant’s defence was self-defence, but his evidence was rejected by the Magistrate.
The Magistrate was not entirely impressed with the evidence of Mr Jackway, nor with the genuineness of his complaint contained in his victim impact statement. His findings on the conviction were based largely on the evidence of Ms Roissetter which he accepted.
The appellant was 40 years of age at the time of being sentenced. He was then being supported by his partner, Ms Roissetter. He was, at the time, unemployed, although he had worked previously as a contract cleaner and tree-feller.
He had previously been in another de facto relationship for some 20 years. Six children were born of that relationship. The relationship broke down in November 2006, resulting in the appellant having the care of three of the older children and the shared care of the two youngest children. The oldest child was then living independently. The appellant’s parents were assisting him in looking after the children. The breakup apparently caused him considerable stress. This was aggravated by the eldest child in his care having trouble with the police, including issues with drugs. The appellant was in the process of trying to get his life in order when the offence occurred.
There was evidence that the appellant’s temperament had improved at the time of trial and that he was now in a better position to resume paid employment.
In imposing sentence, the Magistrate noted early in his ex tempore remarks that the appellant pleaded not guilty and was found guilty and, as a consequence, did not regret his offending. He took into account the appellant’s personal circumstances to which I have referred.
The Magistrate also “(took) into account” the appellant’s antecedents. By that I infer that his previous offending influenced the sentence imposed by the Magistrate. His most recent offence had been an offence of being unlawfully on premises committed in February 2007 for which he was sentenced, after the offence in question, to a suspended sentence of two months imprisonment. That offence was apparently in some way associated with the breakup of his previous relationship. For an offence of being unlawfully on premises in September 2000, almost seven years previously, the appellant was convicted and released on a bond. On 21 May 1992, fifteen years earlier, he committed a number of offences of assaulting police, for which he was discharged without penalty; of fighting, for which he was fined $400; and of hindering or resisting arrest, for which the record shows no penalty. Apart from those offences, on 31 August 1990 there was one other offence of using indecent language, for which he was fined $200, and of resisting police for which he was required to carry out 120 hours of community service. The only other offences were a few driving offences which the Magistrate considered to be irrelevant.
The previous offending obviously carried some influence in the Magistrate’s decision. He later observed that the appellant had previously been convicted of offences punishable by imprisonment and that “any other sentence in this case would be inappropriate having regard to the gravity of the offence.” On that issue he took into account that “[t]here was a potential for very much more significant harm than actually eventuated”, and the fact that there was “significant potential” was a relevant factor.
Having fixed the sentence of six months imprisonment, noting that there was no justification for any discount for pleading guilty, the Magistrate addressed the question of suspension of the sentence. He concluded:
I do not think given [sic] the circumstances of the offence or your personal circumstances evince good reason to suspend it particularly given that you have pleaded not guilty and were found guilty and do not regret this offending.
The maximum penalty for an aggravated offence by the use of an offensive weapon is imprisonment for five years. For an aggravated offence of any other type, the maximum sentence is imprisonment for four years. For a basic offence the maximum is imprisonment for three years. While this was an aggravated offence attracting the higher penalty, the only permanent injury to the victim was not caused by the use of the offensive weapon. It was caused by the punch to the face.
Mr Stokes, counsel for the appellant, argued that, by reason of the conclusion quoted above, the Magistrate declined to suspend the sentence because the appellant had pleaded not guilty. While the mode of expression was perhaps unfortunate, read in its proper context, I do not think that that was the effect of that observation. It must be borne in mind that these were ex tempore sentencing remarks at the conclusion of sentencing submissions which had immediately followed some ex tempore reasons by the Magistrate for finding the appellant guilty of the offence with which he was charged. On two other occasions in the course of the sentencing remarks, the Magistrate referred to the appellant’s plea of not guilty as evidencing a lack of contrition or a reason for not reducing the penalty. I take the sentence quoted, in the context of the sentencing remarks as a whole, as being no more than a repeat of that observation.
The assault was quite unexpected and unprovoked. While it was an aggravated assault, it was not the aggravation which caused the greatest injury. It was an assault in a sudden burst of anger provoked by a misguided sense of retribution against a person who the appellant believed had knowingly tried to involve his 14-year-old son in drug trading. It was a serious assault and could have had more serious consequences.
The circumstances in which this Court can interfere with the sentence have been described by the High Court in Markarian v The Queen:[1]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".

(Footnote omitted).
[1] (2005) 228 CLR 357, 370-371; [2005] HCA 25, [25], Gleeson CJ, Gummow, Hayne and Callinan JJ.
In my opinion, there has been a combination of errors which, taken together, have resulted in a penalty which was manifestly excessive in all the circumstances. In the first place, I consider that the Magistrate placed undue weight on the appellant’s previous offending. The only previous convictions for offences of violence related to an incident over 15 years earlier which attracted a fine of $500, and an incident two years before that, of resisting police which warranted a community service order. For the most recent offence (unlawfully on premises), there was no suggestion of violence, and at the time of this offending, the penalty for that offence was unknown. The most relevant offences were very old and carried very little weight in the circumstances.
Secondly, while there was passing reference to the fact that the appellant had his two young children living at home with him and another two in a shared care arrangement, little attention was given to the probable effect that the sentence would have on those dependants.[2] There was also little attention given to the appellant’s prospects of rehabilitation[3] and the reducing stressors brought about by the breakup of the longstanding relationship with his previous partner. There was evidence that by the time of sentence, the appellant’s prospects of rehabilitation had significantly improved. There was no reference by the Magistrate to such prospects.
[2] See Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n).
[3] See Criminal Law (Sentencing) Act 1988 (SA), s 10(1)(m).
These observations lead me to the conclusion that, in all the circumstances, the sentence was manifestly excessive. The appeal must therefore be allowed and the appellant must be re-sentenced.
I was informed that the appellant has been in custody since the date of his sentence, 3 July 2008. He has therefore served a custodial sentence of approximately two and a half months. That must be brought into account in any re-sentencing of the appellant.
By the nature of his offending, the appellant has demonstrated a difficulty in controlling his anger. That may have been aggravated at the time by the effects of his relationship breakdown. It is a matter which is relevant to his rehabilitation as a productive member of the community.
In all the circumstances I consider that the sentence which should now be imposed is one of three months imprisonment. However, I also consider that there is good reason to suspend the sentence. The appellant has served a significant period in custody. He has learned his lesson. He now needs to be assisted to rebuild his life and to take a responsible attitude to those with whom he interacts. The sentence should 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. It should be a condition of that bond that he not contact the victim, Steve Barry Jackway, that for the first 12 months he be under the supervision of a correctional services officer and that he undertake such intervention programs as may be directed by that officer, particularly with respect to anger management. There will be orders accordingly.