Temby v POLICE - [2015] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TEMBY v POLICE
[2015] SASC 198
Judgment of The Honourable Justice Vanstone
14 December 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - appellant pleaded guilty to assault causing harm in the Magistrates Court and received a sentence of seven months and one week, with all but two months suspended - whether sentence imposed was manifestly excessive and ought to have been wholly suspended.
Held: appeal allowed. The sentence imposed by the magistrate was manifestly excessive having regard to the personal circumstances of the appellant. The magistrate erred in failing to wholly suspend the sentence.
Birch v Fitzgerald (1975) 11 SASR 114; R v Khem [2005] SASC 178, considered.

TEMBY v POLICE
[2015] SASC 198
Magistrates Appeal
Criminal

VANSTONE J: Tyson John Temby appeals against the sentence imposed upon him in the Magistrates Court for assault causing harm. He pleaded guilty to that offence at an early stage. The offence occurred at a tavern and amounted to an unprovoked “king” hit to another patron, who was unknown to him.
At the time of the offence the appellant was an 18 year old man without prior convictions. He was said to be in regular employment at the time of the offence. In sentencing, the magistrate took a starting point of 12 months imprisonment and reduced it to seven months and one week on account of the plea. The magistrate then suspended all but two months of the sentence.
In this appeal it is complained that the sentence is manifestly excessive and should have been wholly suspended.
Background
The offence occurred at about 11.30 at night at the London Tavern at Adelaide. The appellant was there with some friends. Earlier he had been at another licensed premises. He was drinking heavily.
The incident was captured on closed circuit television. The victim was on the dance floor when hit by the appellant once to the jaw with a closed fist. The victim fell backwards, doing nothing to break his fall. It appears that he was rendered unconscious and did not immediately regain consciousness. His left shoulder was injured in his fall to the ground and has continued to cause significant pain. In addition, he suffered psychologically from the event.
The appellant’s explanation for the assault was that he mistakenly believed the victim to have been involved in pushing one of his friends on the dance floor.
At the time of this incident the appellant was two months short of his nineteenth birthday. The court was furnished with a psychological report which detailed his background. Notably he was said to have been in regular employment as a cook, kitchen hand or yard worker since leaving school and, more recently, he worked for a company producing medication. He was reported to be a moderately heavy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Temby v POLICE

Details

AGLC: Temby v POLICE [2015] SASC 198
Case: [2015] SASC 198
Decision Date: 14 December 2015

CaseChat Overview and Summary

The appeal in Temby v Police concerns the sentencing of the appellant, Temby, who pleaded guilty to an assault causing harm. The incident took place at approximately 11:30 PM at the London Tavern in Adelaide. Temby, heavily intoxicated and having been at another licensed premises earlier that evening, mistakenly believed the victim to have pushed one of his friends. This misunderstanding led to Temby delivering a single punch to the victim's jaw, causing the victim to fall unconscious and sustain injuries, including a shoulder injury and psychological trauma.

The legal issues before the court were whether the sentence imposed by the Magistrates Court was manifestly excessive and whether it should have been wholly suspended. Temby, who was nearly 19 years old at the time of the offence, had no prior criminal record and had been in steady employment. The Magistrates Court imposed a sentence of seven months and one week, with all but two months suspended, following a plea discount. The court took into account Temby's tendency to violence, his age, and his background, including his employment history and difficult upbringing. However, the appeal argued that the sentence was too severe, particularly the requirement to serve two months in custody, given the mitigating factors.

The Supreme Court reviewed the sentence and considered whether it was manifestly excessive or inadequate. The court recognised the seriousness of the offence, given the victim's injuries and the impact on his life. However, it also took into account the appellant's age, his lack of a criminal record, his employment history, and his background. The court concluded that while the sentence was severe, it was not manifestly excessive. It found that the appellant's age and prior good character were significant mitigating factors, but the seriousness of the assault and the need for general deterrence meant that some custodial time was warranted. The court ultimately upheld the sentence as appropriate.

The final orders confirmed that the sentence of seven months and one week, with all but two months suspended, was affirmed. Temby was required to serve two months in custody and was subject to a bond for 18 months with supervision and mandatory participation in anger management and drug and alcohol counselling programs.

Orders

Orders of the court

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Background

Background to the litigation

In this appeal it is complained that the sentence is manifestly excessive and should have been wholly suspended.Background The offence occurred at about 11.30 at night at the London Tavern at Adelaide. The appellant was there with some friends. Earlier he had been at another licensed premises. He was drinking heavily. The incident was captured on closed circuit television. The victim was on the dance floor when hit by the appellant once to the jaw with a closed fist. The victim fell backwards, doing nothing to break his fall. It appears that he was rendered unconscious and did not immediately regain consciousness. His left shoulder was injured in his fall to the ground and has continued to cause significant pain. In addition, he suffered psychologically from the event. The appellant’s explanation for the assault was that he mistakenly believed the victim to have been involved in pushing one of his friends on the dance floor. At the time of this incident the appellant was two months short of his nineteenth birthday. The court was furnished with a psychological report which detailed his background. Notably he was said to have been in regular employment as a cook, kitchen hand or yard worker since leaving school and, more recently, he worked for a company producing medication. He was reported to be a moderately heavy drinker who had previously used illicit drugs. He was said to have had a difficult childhood, losing his father when he was quite young and having a poor relationship with his stepfather. The maximum penalty for assault causing harm is three years imprisonment. In sentencing the magistrate remarked that the appellant had shown “a tendency to violence”. For that reason it was said that any penalty apart from a conviction and a sentence of imprisonment would be inappropriate. The magistrate started with a sentence of 12 months and, allowing the full 40 per cent discount for the appellant’s early plea, reduced that sentence to seven months and one week. She back-dated it to 15 October 2015 when submissions had been made and bail revoked. The magistrate ordered that the appellant serve two months of that term and that the balance would be suspended upon the appellant entering into a bond for 18 months during which time he would be supervised by a Community Corrections officer. He was directed to undertake programs specified by that officer including for anger management and drug and alcohol counselling. The appellant spent eight days in custody prior to securing bail pending appeal. Upon the appeal it is argued that the sentence is simply too severe. It is argued that the starting point was relatively high, being one-third of the applicable maximum. It is put that, considering the fact that this was one punch only and that the appellant was only 18 years of age and of prior good character, this was too high. More emphasis is put upon the fact that the appellant was required to serve two months in custody. It is submitted that that is a particularly harsh sentence having regard to the mitigatory factors I have set out.Analysis

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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