Tomaiuolo v Police No. Scgrg-98-619 Judgment No. S6733

[1998] SASC 6733

LINO MATTHEW TOMAIUOLO V POLICE

Lander J

This is an appeal against a conviction entered and a sentence imposed by a Magistrate sitting in the Magistrate's Court at Holden Hill. 

The appellant was charged with the assault of Roland Charles Higgins on 2 August 1997.  When the matter came on before the learned Magistrate on 2 April 1998, the appellant was represented by a legal practitioner, and he entered a plea of guilty. 

After hearing submissions, the learned Magistrate convicted the appellant and sentenced him to be imprisoned for three months.  She suspended that sentence upon him entering into a bond in the sum of $500 for a period of two years to be of good behaviour, and to perform 100 hours of community service. 

The appellant appeals against the entry of the conviction and the sentence. 

The grounds of the appeal are:

(1) that the learned Magistrate erred in recording a conviction;

(2) that the sentence imposed by the learned Magistrate was manifestly excessive;

(3) that the learned Magistrate, in imposing sentence, failed to adequately consider the emotional and physical health of the appellant;

(4) that the appellant delayed filing his appeal pending the receipt of a copy of the sentencing remarks of the presiding magistrate ;

(5) .... that it is just and equitable that the time for filing the appeal be extended. 

The last two grounds, as counsel who appeared for this appellant on the appeal recognised, relate to the question of whether or not it would be appropriate, in the circumstances of this case, to extend the time within which the appellant may appeal.  The appeal was not lodged until 22 April 1998, and is therefore out of time.  It is only just out of time however, and the reason for the delay, i.e. that the appellant was waiting for the sentencing remarks, appears to me not to be unreasonable.  Further, there was no opposition from Miss Alexiadis, who appeared on behalf of the Crown, so I extended the time within which the appellant might appeal the conviction and sentence to 22 April 1998. 

Whilst the appellant appeals against the entry of conviction, he concedes that he is guilty of the offence.   He merely claims that notwithstanding his guilt the learned Magistrate ought not to have entered a conviction. 

The circumstances of the offence were that on 2 August 1997 the victim, Roland Higgins, a licensed process server, went to the appellant's home to deliver a summons issued out of the Port Adelaide Magistrate's Court.  The appellant answered the door and, after the victim had identified himself as a licensed process server and told the appellant that he was there to serve a summons, the appellant asked the victim from whom the summons was.  He was given an answer, and the appellant advised Mr Higgins that he would not accept the summons.  I think at that stage Mr Higgins dropped the summons at the appellant's feet and turned to walk away. 

It is Mr Higgins' evidence that he then felt a blow to the back of the head near the left ear, which caused him to drop a folder of papers, which he was carrying, to the ground.  When Mr Higgins bent down to pick up the papers, the appellant lunged at him and punched him around the body.  Mr Higgins said that he grabbed the appellant by the throat and forced him away before again attempting to pick up the papers on the ground.  Mr Higgins' evidence was that this happened on three or four occasions.  Eventually, Mr Higgins said he was able to get clear of the appellant and began to leave the premises.  Whilst he was leaving the premises the appellant swore at him, told him to get off the property, and then punched the victim in the area of his right kidney. 

Mr Higgins then left the premises and stopped a police traffic patrol.  They attended the property, but the appellant was not  there. 

The assault was witnessed by Velda Amy Higgins, who was the wife of the victim, and her evidence corroborates the victim's version. 

Eventually the appellant was interviewed by police, and he gave them a version of the events consistent with innocence.  His version was, in fact, that he was assaulted by Mr Higgins.  Indeed, he did not even claim to have acted in self-defence.  The version given to the police is, of course, inconsistent with his plea of guilty.  The version was not maintained before the learned Magistrate.  The learned Magistrate, therefore, was right to proceed upon the basis of the account given by the prosecutor. 

The learned Magistrate was informed that the appellant had numerous convictions for traffic and dishonesty offences.  His only prior relevant conviction was in the Adelaide Magistrate's Court in 1992 on a charge of hindering a police officer.  That offence is only barely relevant.  He has, however, previously been imprisoned.  In 1992 he was sentenced to be imprisoned for three months for obtaining benefits to which he was not entitled. 

The learned Magistrate, who gave lengthy sentencing remarks, said she took into account all of the matters put on behalf of the appellant. 

At the time of the offence the appellant was aged 40 years, and he was and has been in recent times in ill health.   He had been receiving treatment for cancer.  He has a propensity to suffer from stress.  His marriage has recently broken down, and that has exacerbated his stress and his medical condition.  Moreover, his sister-in-law was recently murdered, and that has added significant stress. 

He is employed 20 hours a week as a sales representative, for which he is paid $300 plus commission.   His financial position is poor.  He has numerous outstanding fines, commitments on a mortgage and problems in relation to a property settlement arising out of the breakdown of his marriage. 

The learned Magistrate took into account that the appellant is contrite. He has evidenced that contrition by attempting on five occasions to contact the victim to apologise.  He has told the investigating officers that he regrets the incident, and of course he pleaded guilty, if not at the first available opportunity, certainly early enough to be a matter which had to be taken into account in his favour. 

In her sentencing remarks, the learned Magistrate said:

“The officers of the court are entitled to protection.   There is nothing to mitigate the defendant's behaviour.  It was outrageous.  He lost his temper and acted in a violent and unrestrained way and inflicted violence in circumstances where an officer of the court was going about his lawful duties in a totally appropriate way.  The officers of the court will receive protection.  I consider the court should have a serious response to such  assaults.  In my opinion the only proper sentence in the circumstances is a term of imprisonment and I sentence the defendant to imprisonment for three months.” 

The first submission put on behalf of the appellant is that he ought not to have been convicted of the offence, but that whatever penalty was imposed it ought to have been imposed without the learned Magistrate proceeding to a conviction. 

I cannot agree with that submission. Certainly s16 of the Criminal Law (Sentencing) Act does allow a court, where it finds a person guilty of an offence, to impose a penalty without recording a conviction.  However, a court cannot do so without first (1) reaching a conclusion that a fine or a sentence of community service, or both, would be appropriate; (2) that the defendant is unlikely to commit such an offence again; (3) that having regard to (a) the character, antecedents, age or physical mental condition of the defendant; (b) the fact that the offence was trifling; or (c) any other extenuating circumstances, good reason exists for not recording a conviction. 

The submission that a conviction ought not to have been entered supposes that a sentence of imprisonment was inappropriate.  Assuming that to be so only for the purpose of this submission, the appellant would still need to make out that the court ought to have been of the opinion that he was unlikely to commit such an offence again, and that there existed one of those matters to which the court must have regard, which would give rise to good reason existing for not recording a conviction.  The only matters which could have been relevant for the purpose of this submission were the physical or mental condition of the defendant. 

True it was that the appellant was at the time suffering stress and the effects of the treatment for a debilitating physical condition.  However, in my opinion neither his physical nor mental condition compelled the learned Magistrate to reach the conclusion that the conduct could pass without conviction. 

In my opinion it cannot be said that the learned Magistrate was wrong to have convicted the appellant.   Indeed, in my respectful opinion it was appropriate to have convicted him.  The circumstances of the offence were such that it would have been inappropriate for the court to proceed to sentence without conviction. 

Next it is claimed that the sentence imposed by the learned Magistrate was manifestly excessive, particularly having regard to the emotional and physical health of the appellant.  As I have already recognised, as did the learned Magistrate, the appellant does suffer from both physical and mental conditions, and one cannot but feel sympathetic for him in that regard.  On the other hand, the offence for which he was charged was very serious; he assaulted an officer of the court in the exercise of his duty. 

It behoves the court, as the learned Magistrate said, to protect those who are assisting in the administration of justice, and Mr Higgins was one of those persons.  Process servers and other persons who are ancillary but essential to the administration of justice should receive the full protection of the court. 

It was necessary for all those reasons, particularly because of the aspects of general deterrence, that a sentence of imprisonment be imposed upon the appellant.  I do not agree, therefore, that the sentence was manifestly excessive, nor do I agree that the learned Magistrate paid insufficient weight to the physical and mental condition of the appellant. 

In my opinion, the learned Magistrate was right to suspend the sentence of imprisonment, and in that regard she was right, as she did, to have regard to the appellant's health.  His health was a major factor for which regard must be had in a consideration of suspension or otherwise of the term of imprisonment. 

It follows, therefore, that I do not consider that the learned Magistrate erred in the sentence imposed upon the appellant, but more particularly it cannot be said, in my opinion, that any aspects of her sentence were outside the proper exercise of her sentencing discretion. 

In my opinion, the appeal ought to be dismissed. 

The appeal will be dismissed, and the appellant will pay the respondent's costs fixed at $150.