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 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
It is true, as the magistrate remarked, that this was a nasty and dangerous offence. It occurred at licensed premises where young persons should be able to relax and enjoy themselves in a non-threatening environment. It is also true that the victim did absolutely nothing to provoke the incident. As the magistrate said, offences such as these are to be deprecated and the courts must indicate that they will not be tolerated.
In Birch v Fitzgerald (1975) 11 SASR 114 Bray CJ upheld a sentence of imprisonment imposed on a man of prior good character for an unprovoked and serious assault committed at licensed premises. In doing so his Honour said (at 117):
As I said in Sellen v Chambers: ‘Violence has increased, is increasing, and ought to be diminished, particularly violence by young men towards each other.’ It may be that the incidence of such violence will be reduced if it is brought home to those likely to resort to it that if they do they may very well be punching, striking, butting or kicking themselves into gaol.
(citations omitted)
I note that the defendant in that case was 30 years of age.
In R v Khem [2005] SASC 178 the Court of Criminal Appeal upheld an immediate custodial sentence imposed upon an 18 year old man of previous good character who entered an early plea of guilty to robbery of a service station attendant. The appellant had insufficient funds for cigarettes and so he climbed the counter and kicked the operator in the head, before stealing a packet of cigarettes. The Court said that the issue of suspension of the sentence of two years and three months imprisonment was “finely balanced”, but declined to interfere with the sentencing judge’s decision not to suspend. It will be noted that the maximum penalty there was 15 years imprisonment and the sentence imposed was much higher than in the present case.
I accept the force of these decisions, and recognise that when dealing with these types of offences personal and general deterrence are pre-eminent considerations. Even so, it is a particularly harsh thing to send a 19 year old man to gaol for his first conviction, particularly where that will put an end to the regular employment he enjoys. In my view the punitive and protective purposes of punishment could have been adequately reflected by wholly suspending the sentence and allowing the appellant to continue in his employment and to undertake the intervention measures recommended by the psychologist. I consider that the magistrate was in error in failing to do so. For that reason the sentence must be set aside.
In re-sentencing, I would take a lower starting point than did the magistrate. That is not to diminish the seriousness of the offence, but rather to recognise that the appellant is a young man with a record of being in regular employment and one who is in a position to put such episodes as these behind him and to exercise a great deal more self-control in the future. In my view a starting point of one-third of the maximum for a man of prior good character and of this age was too high.
I would take a starting point of six months imprisonment. Giving a discount of just under 40 per cent I would impose a sentence of four months imprisonment and I would wholly suspend that sentence upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of two and a half years, that bond to contain the terms specified by the magistrate.
The orders I make are:
1.allow the appeal;
2.set aside the sentence imposed by the magistrate;
3.impose a sentence of four months imprisonment which will be suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for two and a half years, and for two years of that time to be under the supervision of a Community Corrections officer and to obey his or her directions as to the undertaking of programs relating to anger management and drug and alcohol counselling, and to undergo medical and psychological treatment as directed, as well as the compulsory conditions.