TAYLOR-BROWN v Police - [2010] SASC 165

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAYLOR-BROWN v POLICE
[2010] SASC 165
Judgment of The Honourable Justice Kelly
1 June 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Appeal against sentence - appellant convicted on his guilty plea of the offence of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 - appellant sentenced to three months imprisonment - whether the sentence is manifestly excessive - whether Magistrate erred in failing to suspend the sentence.
Held: appeal allowed - appellant resentenced to seven weeks imprisonment - term of imprisonment not suspended.
Criminal Law Consolidation Act 1935 s 20(3), referred to.

TAYLOR-BROWN v POLICE
[2010] SASC 165
Magistrates Appeal: Criminal
KELLY J:
Introduction

This is an appeal against a sentence imposed in the Mount Gambier Magistrates Court on 18 March 2010.
On 18 January 2010 the appellant appeared in the Naracoorte Magistrates Court and pleaded guilty to an offence of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935. That offence carries a maximum penalty of imprisonment for 2 years.
The matter was listed for a disputed facts hearing which commenced on 17 March 2010. On 18 March 2010 the learned Magistrate recorded a conviction and imposed a penalty of three months imprisonment to commence on 17 March 2010. In addition the Magistrate made a three year restraining order prohibiting the appellant from contacting the victim in the matter or attending at any place where the victim may reside or work. The restraining order also included a condition that the appellant was not to attend at or near the licensed premises know as Shapes Night Club.
The appellant appeals against the sentence on two grounds. The first, that the sentence was manifestly excessive and the second, that the Magistrate erred in failing to suspend the sentence.
Background
The appellant was 26 years old at the date of this offence. He has a history of offending which includes one previous charge of assault causing actual bodily harm and disorderly behaviour. For that offending he was sentenced to 13 months and 14 days imprisonment with a non‑parole period of five months. The sentence was not suspended. In April 2008 the appellant was again convicted of one count of basic assault and sentenced to two months imprisonment which was suspended upon the appellant agreeing to enter into a bond to be of good behaviour for 12 months. The appellant completed that bond without incident.
The offending the subject of the current charge occurred on 20 September 2009 when the appellant went to the Shapes Night Club in Mount Gambier. During the evening he became involved in a incident with the victim’s fiancé, however the precise circumstances surrounding the incident remain unclear. The victim’s fiancé then went on to inform the victim about the incident. As a consequence the victim formed a view about the incident and approached the appellant.
The circumstances in which the victim approached the appellant that evening was one of the reasons that a disputed facts hearing was held. The victim denied approaching the appellant in an angry state of mind. However after hearing from the victim the Magistrate ultimately found that the victim did approach the appellant in a belligerent and accusatory manner arising out of his perception about what had happened between the appellant and his fiancé. The Magistrate found that the appellant was not therefore the initiator of the incident between the appellant and the victim.
The Magistrate sentenced the appellant on the basis that the incident occurred after the appellant told the victim to go away in no uncertain terms. The victim did not leave but continued to have words with the appellant. The appellant then grabbed the victim’s collar and deliberately and powerfully punched him to the face with an upward motion while still holding on to his collar.
After the incident security staff intervened. The appellant left the premises voluntarily and the victim left after he was asked by security staff to do so.
Although the Magistrate found that the victim was belligerent and accusatory toward the appellant, he dismissed provocation as a defence and found that the appellant voluntarily and deliberately initiated the violence. He noted that the appellant’s act of violence was gratuitous and unwarranted.
When considering the issue of imprisonment the Magistrate discussed the need for personal and general deterrence. The Magistrate said at [19]:
…The Courts have said consistently that violence in the course of normal social intercourse is not acceptable. A sentence of imprisonment may well be appropriate, even in the case of a first offender of good character. The need for personal deterrence of offenders willing to perpetrate violence on other members of the community and need for a general deterrence of others who might be like minded is a necessary component in the sentencing process. It is necessary to protect and enhance the safety of community members…
After noting that the appellant had a history of inflicting violence and after considering his personal circumstances the Magistrate determined to impose a sentence of five months imprisonment. That sentence was discounted by two months on account of the appellant’s early plea of guilty. The Magistrate declined to suspend the sentence.
Discussion
There are two issues which arise on this appeal. The first is whether the sentence of five months imprisonment, reduced to three months by reason of the plea of guilty, is manifestly excessive. The second is whether the Magistrate erred in failing to suspend the sentence.
For the purpose of considering the first issue I accept the findings of fact made by the Magistrate. He found that the victim was quarrelsome and intoxicated and had, earlier in the evening, been involved in another incident with a different patron at the same venue. The victim’s behaviour towards the appellant prior to the offence was both belligerent and accusatory. He persisted with this behaviour in the face of the appellant’s demands that he go away. In a real sense therefore, the appellant was not the initiator of the confrontation between himself and the victim. These circumstances mitigate the overall seriousness of the appellant’s offending and place it in the less serious category of offending.
Against this background I consider the starting point of five months fixed by the Magistrate to be very high. It is true that his Honour discounted the sentence by some 40 per cent on account of the appellant’s plea of guilty. After applying the discount the ultimate sentence arrived at by the Magistrate was three months.
As I previously noted the appellant does have prior convictions for offences of violence, the most recent of which was in April 2008 for another basic offence of assault. That offence was committed while the appellant was socialising at the Naracoorte Hotel. In the course of the evening the appellant while intoxicated assaulted another patron by elbowing him to the face. It is evident from the police apprehension report relating to that offending that the assault on that occasion by the appellant was completely gratuitous and unprovoked. In that sense I consider the current offending to be in a less serious category than the offence committed in 2008.
In light of the overall circumstances surrounding the commission of this offence I have reached the conclusion that a sentence of three months imprisonment is manifestly excessive. In light of that conclusion it is not, strictly speaking, necessary to consider the second issue, whether the Magistrate was in error in failing to suspend the sentence. However, for the reasons which follow it will be apparent that I consider the Magistrate did not err in failing to suspend the sentence.
In light of the conclusion that the sentence is manifestly excessive it is necessary to resentence the appellant. I acknowledge that in reconsidering the appropriate sentence it is necessary for me to consider afresh whether there are good reasons to suspend the sentence I impose.
I take into account the fact that the appellant is still a relatively young man, he has a good employment record and in fact has been currently working as a labourer in seasonal employment in a vineyard in the south east. Nevertheless I must take into account the fact that this is not the first occasion where the appellant has lost his self control in a social setting. I have previously referred to the circumstances of the previous offence of assault in April 2008 in respect of which the appellant was sentenced to two months imprisonment. On that occasion he received the benefit of a suspended sentence. I agree with the learned Magistrate’s remarks that in the case of this appellant considerations of both general and personal deterrence must be an important factor in sentencing him. For all of these reasons I am of the view that a sentence of 12 weeks imprisonment is warranted. The sentence will be reduced to nine weeks by reason of the appellant’s plea of guilty. I take into account that prior to his release on bail the appellant served almost two weeks in custody. The sentence will therefore be seven weeks imprisonment.
Taking into account all of the circumstances including the appellant’s prior convictions I do not consider that suspension of the sentence on this occasion is warranted. It is a regrettable thing to have to send a young man back into gaol even for such a short period, however an appeal court is often faced with this dilemma. It is to some extent the risk an appellant takes when exercising his right to apply for bail pending the outcome of an appeal. The order of the Court will therefore be:
1The order of the Magistrate sentencing the appellant to imprisonment for three months is set aside.
2The appellant is resentenced to seven weeks imprisonment.
3The appellant is required to surrender to the Mount Gambier Magistrates Court within 14 days from 1 June 2010 in accordance with the bail agreement entered into on 29 March 2010.
4I decline to suspend that term of imprisonment.
5I decline to interfere with the restraining order imposed by the Magistrate.