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 198Magistrates 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…
Continue reading Temby v POLICE
Sign in free to access the full text
- AGLC
- Temby v POLICE [2015] SASC 198
- Case
- [2015] SASC 198
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.