Toohey v Police - [2001] SASC 44

TOOHEY v POLICE
[2001] SASC 44

Magistrates Appeal (Criminal)

OLSSON J

Introduction

This is an appeal against sentences imposed on the appellant by a stipendiary magistrate, consequent upon the recording against the former of convictions of two counts of assault, contrary to the provisions of s 39 of the Criminal Law Consolidation Act, 1935.
Those convictions were the ultimate outcome of a trial on oral evidence before the learned magistrate, in which a co-offender, Ms Bacon, the de facto wife of the appellant, was convicted of assault occasioning actual bodily harm.
The appellant was originally charged, jointly with Ms Bacon, with the offence of assault occasioning actual bodily harm. It was asserted that, on 11 August 1999 at Morphett Vale, the two of them assaulted one Hollinshead, thereby occasioning him actual bodily harm. Both pleaded not guilty. The learned magistrate made findings of fact in which he concluded that, whilst both accused had joined in an incident involving an attack on Hollinshead, and both had assaulted him, it was Ms Bacon who inflicted a quite serious injury on the victim, rather than the appellant. He concluded that it was appropriate to record a conviction of common assault only in relation to the appellant.
As to that conviction he sentenced the appellant to 18 months imprisonment. However, he suspended that sentence upon entry by the appellant into a bond to be of good behaviour for a period of two years.
By way of contrast, Ms Bacon was sentenced to 21 months imprisonment, with a non parole period of 14 months. Her sentence was also suspended upon entry into a bond upon the same terms as the appellant.
The appellant was separately charged with a count of common assault, it being asserted that, on the same date and at the same place [in the course of what was, in essence, a single, continuing incident] he also assaulted one Hawker. The latter was a bystander who observed the attack on Hollinshead and sought to come to his assistance.
The learned magistrate found this charge proved and recorded a conviction in respect of it. He sentenced the appellant to 8 months imprisonment, to be served concurrently with the first sentence. This also was suspended upon entry into the bond.
A non parole period of 12 months was fixed in relation to all custodial sentences.
The appellant complains that both custodial sentences were, in the circumstances, manifestly excessive.

Background Factual Circumstances

It should be noted, at the outset, that there were major conflicts between the respective accounts given by Hollinshead and Hawker, on the one hand, and the two accused on the other, as to what occurred on the day in question. Having considered the evidence given before him the learned magistrate rejected both the appellant and Ms Bacon as credible witnesses, for reasons which he expressed and do not here require repetition. By way of contrast he was disposed, essentially, to accept the version of facts testified to by Hollinshead and Hawker.
The incident…

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.

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Details

AGLC: Toohey v Police [2001] SASC 44
Case: [2001] SASC 44
Decision Date: 1 March 2001

CaseChat Overview and Summary

The case of Toohey v Police involves an appeal against the sentences imposed on the appellant by a stipendiary magistrate. The appellant was convicted of two counts of assault contrary to section 39 of the Criminal Law Consolidation Act 1935. The sentences were the result of a trial where the appellant's de facto wife, Ms. Bacon, was also convicted of assault occasioning actual bodily harm. The appellant was originally charged with assault occasioning actual bodily harm in relation to an incident involving the victim Hollinshead and was also charged with a separate count of common assault for attacking Hawker, a bystander who attempted to intervene. The appellant was sentenced to 18 months imprisonment for the assault on Hollinshead and 8 months imprisonment for the assault on Hawker, with both sentences being suspended on the condition of good behaviour for two years.

The legal issues the court had to decide included whether the sentences imposed were manifestly excessive and whether the court should consider the sentences for both offences together under section 18A of the Criminal Law (Sentencing) Act. The court examined the nature and seriousness of the appellant's conduct, the need for general deterrence, and the personal circumstances of the appellant in determining the appropriate sentences.

The court found that while the appellant's conduct warranted condign punishment, the sentence for the assault on Hollinshead was within the appropriate range. However, the sentence for the assault on Hawker was considered unduly harsh and not reflective of the actual harm caused. The court held that the sentences should be considered together under section 18A of the Criminal Law (Sentencing) Act, making the overall sentence appropriate. Therefore, the appeal against the sentence for the assault on Hollinshead was dismissed, but the sentence for the assault on Hawker was set aside.

Orders