THOMAS v Police - [2006] SASC 214

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THOMAS v POLICE
[2006] SASC 214
Judgment of The Honourable Justice White
21 July 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
Appeal against sentence - Appellant pleaded guilty to an assault occasioning actual bodily harm contrary to s 40 of the Criminal Law Consolidation Act - Assault of a serious kind - Appellant had prior convictions for assault - Magistrate sentenced appellant, after reduction for plea of guilty and for time spent in custody on remand, to imprisonment for 13 months - A four month non-parole period was fixed - Whether sentence manifestly excessive - Whether sentence should have been suspended - Held: starting point used to determine sentence too high - Appeal allowed - Appellant resentenced, after reduction for plea of guilty and for time served, to imprisonment for 42 weeks - No good reason to suspend sentence wholly - Original purpose of magistrate to be achieved by suspension of a portion of the sentence - 13 weeks of the sentence to be served in custody - Balance suspended pursuant to s 38(2a) of the Criminal Law (Sentencing) Act.
Criminal Law Consolidation Act 1935 (SA) s 40; Criminal Law (Sentencing) Act 1988 (SA) s 19, s 32, s 38, referred to.
R v Olbrich (1999) 199 CLR 270; R v Place (2002) 81 SASR 395; R v Delphin (2001) 79 SASR 429; Stehbens v Police [2004] SASC 227, considered.

THOMAS v POLICE
[2006] SASC 214
Magistrates Appeal

WHITE J. The appellant pleaded guilty to an assault occasioning actual bodily harm[1] committed on 28 September 2005.
[1] Criminal Law Consolidation Act 1935 (SA) s 40 (now repealed).
The relevant maximum penalty for this offence was five years imprisonment. A magistrate sentenced the appellant to imprisonment for 13 months with a four month non-parole period. He refused to suspend that sentence.
The appellant contends on appeal that the sentence was manifestly excessive, and in any event, should have been suspended.
Circumstances of the Offending
On Wednesday 28 September 2005, at about 11.40 pm, the appellant was at the Vine Inn at Nuriootpa. He had been there, drinking, for some time. The victim, who was 18 years old and physically smaller than the appellant, was also present, close to some pool tables. An incident between these two men, and others, involving an assault to the appellant, had occurred about two weeks previously at Nuriootpa. The appellant sought to exact revenge. After some initial verbal aggression, the appellant grabbed the victim and pushed him backwards. He then punched the victim and, it was alleged, head butted him. Two patrons in the hotel intervened and separated the two men, but the appellant told the victim “You still have to get outside yet”.
Both men were told to finish their drinks and to leave the hotel. When the…

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 THOMAS v Police

Details

AGLC: THOMAS v Police [2006] SASC 214
Case: [2006] SASC 214
Decision Date: 21 July 2006

CaseChat Overview and Summary

In Thomas v Police, the appellant, having pleaded guilty to an assault occasioning actual bodily harm under s 40 of the Criminal Law Consolidation Act, appealed against his sentence. The appellant had a history of assault and had been sentenced to imprisonment for 13 months by the magistrate, with a non-parole period of four months. The appeal centred on whether the sentence was manifestly excessive and whether it should have been suspended. The court was tasked with determining whether the starting point used to determine the sentence was appropriate and if the sentence should have been wholly suspended or partially suspended with a portion served in custody.

The court found that the magistrate erred by sentencing the appellant on the basis that he had head butted the victim, an allegation that was denied and not proven. Furthermore, the court held that the magistrate should have specified the reduction in sentence due to the plea of guilty and should have provided reasons for rejecting the submission that the sentence should be suspended. The court concluded that the starting point for sentencing was too high and that there was no good reason to suspend the sentence wholly. Instead, the court decided that the original purpose of the magistrate's sentence could be achieved by suspending a portion of the sentence.

The court allowed the appeal and resentenced the appellant, after reduction for the plea of guilty and for time served, to imprisonment for 42 weeks. The court determined that 13 weeks of the sentence should be served in custody, and the balance should be suspended pursuant to s 38(2a) of the Criminal Law (Sentencing) Act. This decision ensured that the sentence was proportionate to the offence while also considering the appellant’s circumstances and prior history.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In addition, the appellant has previous court appearances for damaging property, disorderly behaviour and hindering police.Appellant’s Background The appellant was educated to Year 9 level. After leaving school he completed one year as an apprentice chef, and since then has had a variety of employments in factories and in vineyards in the Barossa Valley. He was in employment at the time of the offending and the magistrate was told that employment continued to be available to him. A report from a psychologist was tendered before the magistrate. It suggests that the appellant has difficulties in controlling his anger when intoxicated. He has previously participated in two anger management courses although there are some reservations about whether they were of an appropriate kind. The appellant’s upbringing was marked by domestic violence, both towards himself and towards his mother. It is reported that the appellant’s father was an aggressive role model as a parent and that he encouraged the appellant to react to threats or criticisms with violence. The psychologist has recommended that the appellant have psychotherapy directed towards addressing and resolving his aggression and anger. It is said that such psychotherapy is not likely to be available to the appellant while he is in custody.The Magistrate’s Decision The magistrate’s sentencing remarks record his satisfaction that in the first of the episodes comprising the assault, the appellant had both punched and head butted the victim. The magistrate described the offence as “a very serious assault resulting in significant injuries”. He attached significance to the fact that the assault was resumed after the period of pause following the breaking up of the initial exchange. The magistrate said that the seriousness of the assault, in the context of the appellant’s antecedents, meant that a sentence of imprisonment was required. After giving the appellant credit for his plea of guilty (the amount of the reduction was not specified) and for the period which the appellant spent in custody from 4 October 2005 to 16 December 2005 before being granted bail, the magistrate sentenced the appellant to imprisonment for 13 months, and fixed a non-parole period of four months. He said that the non-parole period was shorter than usual because of the desirability of the appellant having a period of supervision when released from custody, and because the appellant had already spent more than two months in custody. The magistrate did not give any reasons for rejecting the submission of the appellant’s then counsel that the sentence of imprisonment should be suspended.Assessment of the Sentence I consider that the magistrate erred in sentencing the appellant on the basis that he had, in the initial episode, head butted the victim. In his sentencing submissions, the appellant’s then counsel had indicated that that allegation was denied. No evidence was called by the prosecution to prove that circumstance of aggravation. In those circumstances the appellant should not have been sentenced on a factual basis which assumed that that disputed allegation had been established.[2] However, I doubt that that was a significant factor influencing the sentence. The most serious aspects of the assault occurred in the second episode when the victim went to leave the hotel. It seems likely that that is when he suffered his serious injuries.[2] R v Olbrich [1999] HCA 54 at [56]-[61]; (1999) 199 CLR 270 at 293-4.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WHITE J

The psychologist has recommended that the appellant have psychotherapy directed towards addressing and resolving his aggression and anger. It is said that such psychotherapy is not likely to be available to the appellant while he is in custody.The Magistrate’s Decision The magistrate’s sentencing remarks record his satisfaction that in the first of the episodes comprising the assault, the appellant had both punched and head butted the victim. The magistrate described the offence as “a very serious assault resulting in significant injuries”. He attached significance to the fact that the assault was resumed after the period of pause following the breaking up of the initial exchange. The magistrate said that the seriousness of the assault, in the context of the appellant’s antecedents, meant that a sentence of imprisonment was required. After giving the appellant credit for his plea of guilty (the amount of the reduction was not specified) and for the period which the appellant spent in custody from 4 October 2005 to 16 December 2005 before being granted bail, the magistrate sentenced the appellant to imprisonment for 13 months, and fixed a non-parole period of four months. He said that the non-parole period was shorter than usual because of the desirability of the appellant having a period of supervision when released from custody, and because the appellant had already spent more than two months in custody. The magistrate did not give any reasons for rejecting the submission of the appellant’s then counsel that the sentence of imprisonment should be suspended.Assessment of the Sentence I consider that the magistrate erred in sentencing the appellant on the basis that he had, in the initial episode, head butted the victim. In his sentencing submissions, the appellant’s then counsel had indicated that that allegation was denied. No evidence was called by the prosecution to prove that circumstance of aggravation. In those circumstances the appellant should not have been sentenced on a factual basis which assumed that that disputed allegation had been established.[2] However, I doubt that that was a significant factor influencing the sentence. The most serious aspects of the assault occurred in the second episode when the victim went to leave the hotel. It seems likely that that is when he suffered his serious injuries.[2] R v Olbrich [1999] HCA 54 at [56]-[61]; (1999) 199 CLR 270 at 293-4. The magistrate also erred in not stating the reduction in the sentence on account of the appellant’s plea of guilty. It has been said many times, and in any event authoritatively by the Full Court, that the amount of the reduction on account of a plea of guilty should be specified.[3] In this way, the public policy objectives sought to be achieved by allowing a reduction on account of a plea of guilty may be realised.[3] R v Place [2002] SASC 101 at [81]-[83]; (2002) 81 SASR 395 at 425. The magistrate also erred in not stating any reason for his refusal to suspend the sentence. A submission to that effect was a major feature of the sentencing submissions made by the appellant’s then counsel. Those submissions should have been addressed.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Full text does not contain this section.