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 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
Mr Stokes, who appeared for both Mr Upenieks and Mr Crispin, argued that Mr Upenieks’ sentence was manifestly excessive. As with Mr Crispin, he submitted that the starting point of 8 months was too high. As was the case with Mr Crispin, Mr Stokes conceded that he could not point to any error made by the magistrate in the course of his sentencing remarks. He relied again on the principle in House v R (1936) 55 CLR 499 where the majority said at 505:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Mr Stokes made the same submissions in respect of Mr Upenieks as he made in respect of Mr Crispin in relation to the starting point of 8 months and the sentence of 6 months. He argued that it was manifestly excessive.
Respondent’s submissions
Mr Stretton likewise made the same submissions that are set out in my reasons in Crispin. He once again referred to the decision of Bray CJ in Birch v Fitzgerald (1975) 11 SASR 114 at 116-117 where Bray CJ said:
Nevertheless, there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated … 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.
The personal circumstances of Mr Upenieks were similar to those of Mr Crispin. He was 21 years of age at the time and had family support. He was employed at the time the magistrate dealt with him. He had a prior record which was worse than that of Mr Crispin but involved similar offences in relation to motor vehicles but with the added offences of serious criminal trespass and dishonestly taking property without the owner’s consent.
As I said in the Crispin reasons, these prior convictions indicate a disregard for authority, even though they did not involve violence. Mr Stretton submitted that this was a particularly violent act perpetrated by Mr Upenieks in that the victim had been spat on and punched by Mr Crispin, and while the victim was still standing, stunned and holding his face, Mr Upenieks struck him in the temple with his forearm in a “backhanded, elbowing type motion”, as described by the magistrate. As a result of that blow the victim fell to the ground and became unconscious.
The magistrate faced exactly the same dilemma in this matter as he described in Crispin. He was dealing with a young person who was employed, with no criminal record in relation to offences of violence, but who had committed a serious and unprovoked assault on an unsuspecting member of the public in a public place.
His Honour concluded, after considering all of the relevant matters, that imprisonment was the only appropriate penalty for Mr Upenieks. I have set out the considerations which the magistrate properly took into account in my reasons in Crispin. I agree with his conclusion that imprisonment was the only appropriate penalty.
I make the same comments that I made in Crispin regarding the 6 months sentence of imprisonment. I repeat that it is my view that the 8 months used by the magistrate as a starting point is a moderate starting point in all the circumstances.
I therefore dismiss the first ground of appeal on the basis that the term of imprisonment of 6 months is not manifestly excessive. As I have said, I consider the sentence to be moderate for such violence.
Suspension of imprisonment
I have dealt with the question of suspension in the Crispin matter. Again, the magistrate properly directed himself to all of the relevant matters in considering whether to suspend the sentence.
I repeat what I said in relation to the ugliness of the incidents as depicted on the closed circuit television footage. Again, whilst some magistrates may have suspended the sentence, there is nothing in the magistrate’s sentencing remarks to show that he has either failed to consider any relevant matters or taken any irrelevant matters into account. That is conceded by Mr Stokes.
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.