Upenieks v POLICE - [2009] SASC 211

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
UPENIEKS v POLICE
[2009] SASC 211
Judgment of The Honourable Justice Anderson
21 July 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Magistrates appeal - appellant pleaded guilty to the offence of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 - sentenced to 6 months imprisonment - whether sentence is manifestly excessive - whether penalty imposed is outside range of penalties for that offence - whether magistrate erred in failing to suspend sentence.
Held: Penalty is within range of penalties for that offence - sentence not manifestly excessive - magistrate did not err in failing to suspend sentence - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v R (1936) 55 CLR 499; Birch v Fitzgerald (1975) 11 SASR 114, discussed.

UPENIEKS v POLICE
[2009] SASC 211
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant in this matter was initially jointly charged with Brendon John Crispin with aggravated assault causing harm, but later the charge was amended and the appellant pleaded guilty to one offence of assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (“the Act”).
I have already dealt with Mr Crispin’s appeal in judgment [2009] SASC 210. I dismissed that appeal.
These reasons should be read in conjunction with the reasons I published in the Crispin matter. The magistrate sentenced Mr Crispin to 6 months imprisonment and declined to suspend the sentence. He likewise sentenced the appellant to 6 months imprisonment and again declined to suspend the sentence.
Background
The magistrate sentenced Mr Upenieks and Mr Crispin at the same time. The sentencing remarks of the magistrate were common to both appellants. The background facts which I set out in the decision in Crispin are again relevant. I will set them out again. The magistrate said:
The incident itself is a serious matter. I was told by prosecution that the victim, a young lad by the name of Alex Henley was travelling on a train on the day in question. You both entered the train at the same time as him; Mr Henley took a seat facing the aisle. As the train approached a station Mr Upenieks you walked past Mr Henley to stand in the vicinity of a doorway. There was no contact or discussion between you and Mr Henley as you did that. I pause at this stage to say that the incident was captured on CCTV footage, which I have viewed. As the train pulled into the station Mr Crispin you walked past the victim, you bent over and you spat in Mr Henley’s face. You then continued on to stand in the vicinity of Mr Upenieks. The victim Mr Henley wiped his…

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

Case: [2009] SASC 211
Decision Date: 21 July 2009

CaseChat Overview and Summary

The appeal in Upenieks v Police arose from a conviction of the appellant, Upenieks, for the offence of assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935. The sentencing issue in the case was whether the sentence of 6 months imprisonment was manifestly excessive and whether the magistrate erred in not suspending the sentence. The maximum penalty for the offence was 5 years imprisonment. The sentencing remarks of the magistrate were common to both the appellant and co-appellant Crispin, who were both sentenced to 6 months imprisonment with no suspension of sentence. The magistrate concluded there was no good reason to suspend the sentence.

The court considered whether the penalty imposed was within the range of penalties for that offence and whether the magistrate erred in not suspending the sentence. The court noted that the magistrate concluded there was no good reason to suspend the sentence and found no error in this decision. The court also found that the penalty imposed was within the range of penalties for that offence and was not manifestly excessive. The court dismissed the appeal on the basis that the magistrate did not err in imposing the sentence or in deciding not to suspend it.

The court held that the penalty imposed was within the range of penalties for the offence of assault causing harm. The sentence was not manifestly excessive. The magistrate did not err in failing to suspend the sentence. The appeal was dismissed, and the original sentence of 6 months imprisonment was upheld.

Orders

Orders of the court

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Background

Background to the litigation

These reasons should be read in conjunction with the reasons I published in the Crispin matter. The magistrate sentenced Mr Crispin to 6 months imprisonment and declined to suspend the sentence. He likewise sentenced the appellant to 6 months imprisonment and again declined to suspend the sentence.Background The magistrate sentenced Mr Upenieks and Mr Crispin at the same time. The sentencing remarks of the magistrate were common to both appellants. The background facts which I set out in the decision in Crispin are again relevant. I will set them out again. The magistrate said:The incident itself is a serious matter. I was told by prosecution that the victim, a young lad by the name of Alex Henley was travelling on a train on the day in question. You both entered the train at the same time as him; Mr Henley took a seat facing the aisle. As the train approached a station Mr Upenieks you walked past Mr Henley to stand in the vicinity of a doorway. There was no contact or discussion between you and Mr Henley as you did that. I pause at this stage to say that the incident was captured on CCTV footage, which I have viewed. As the train pulled into the station Mr Crispin you walked past the victim, you bent over and you spat in Mr Henley’s face. You then continued on to stand in the vicinity of Mr Upenieks. The victim Mr Henley wiped his face and stood up and approached you Mr Crispin. He tapped you on the shoulder and seemingly asked what the spit was all about. As he did so you turned and punched him in the face with a left hook. He was struck on the right hand side of his face. At about that time the train had arrived at the station and you left the train. As Mr Henley was standing there stunned, holding his face, Mr Upenieks, you turned towards him and struck him to the temple. You did so with your forearm. It was a backhanded elbowing type motion, but you did not elbow him as such – the middle of your forearm struck him in the temple. As a result of that strike Mr Henley fell to the ground. He was unconscious. It’s not clear based on the information provided to me as to whether it was the force of your blow or the fact that he struck the ground that caused him to lose consciousness. In any event he only fell to the ground because you struck him. As I indicated in the Crispin reasons, both Mr Upenieks and he were travelling together on the train and acted in concert, even though the joint charge of aggravated assault causing harm was withdrawn and individual charges substituted.Grounds of appeal The appellant complains in his notice of appeal that the sentence imposed by the magistrate was manifestly excessive and that the magistrate erred in failing to suspend the sentence of imprisonment which he imposed. The maximum sentence for the offence contrary to s 20(4) of the Act was 5 years. As I have indicated, the magistrate imposed a term of 6 months imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. This was reduced from 8 months on account of the guilty plea. The magistrate found no good reason to suspend the sentence.Appellant’s submissions

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

I repeat my view that the victim in this case was entitled to the protection of the law and therefore the aspect of deterrence becomes a very important sentencing consideration. The magistrate concluded that there was no good reason to suspend the sentence, and it is my view that it has not been shown that the magistrate erred.Conclusion It is my view that no error has been demonstrated either in the length of the sentence or in the decision not to suspend the sentence. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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