Valensky v Police No. Scgrg-98-464 Judgment No. S6807

VALENSKY v POLICE
[1998] SASC S6807

Magistrates Appeal
Nyland J

This is an appeal against sentence. The appellant was charged on complaint that on 23 August 1997 at Adelaide he assaulted John Domenic Caretti, a person of or above the age of 12 years, thereby occasioning him actual bodily harm contrary to the provisions of s40 of the Criminal Law Consolidation Act 1935.
On 19 March 1998 the appellant appeared before a stipendiary magistrate in the Adelaide Magistrates Court and pleaded guilty to the charge. The appellant was represented by Mr Dadds of counsel. The facts of the matter were outlined to the court by James Fauser, the police prosecutor. According to his affidavit, he said the following:
“Your Honour, the victim is a 25 year old male person. He said at about 5.30 am on the 23rd of August 1997 he was drinking with friends in the Rio’s Nightclub, Hindley Street, Adelaide. He cannot remember leaving the premises. The next thing he can remember is his hand being covered in blood and being in the Royal Adelaide Hospital. He received four stiches to a gash on the back of his hand. He cannot remember anything about the incident or who was involved.
Police officers say that at the time of the offence they were on foot patrol, standing on the northern footpath of Hindley Street opposite Rio’s. They observed the victim land backwards on the footpath directly outside the front door of Rio’s. They went to the assistance of the victim who remained lying on the ground unconscious and bleeding from the back of the head.
Police spoke with the defendant who was standing outside Rio’s on the footpath where the incident occurred. Police then viewed a security video from Rio’s. The video indicated this defendant as hitting the victim once.
The defendant did not wish to answer any questions in relation to the matter.”
The prosecutor provided the court with a copy of the appellant’s criminal history. This disclosed an extensive record of offending commencing in about 1987 when the appellant appeared in the Whyalla Children’s Court on charges of larceny and assault. For present purposes the most relevant prior conviction is a conviction for an offence of assault occasioning actual bodily harm recorded in the Adelaide Magistrates Court on 19 August 1993. The offence date is shown as 6 February 1992. On that occasion the court sentenced the appellant to be imprisoned for a period of eight months but suspended the sentence upon the appellant entering into a bond in the sum of $100.00 to be of good behaviour for a period of two years. The appellant subsequently breached that bond by the commission of other offences and enforcement proceedings were taken against him. As a result, the order for suspension was revoked and the appellant was obliged to serve the term of imprisonment.
The last convictions disclosed on the appellant’s antecedent report were in September and October 1994 when fines were imposed in relation to some minor drug offences.
Mr Dadds also provided an affidavit for use on the hearing of this appeal. In that affidavit he said:
“I cannot now recall precisely what I said in mitigation of penalty, but my notes indicate that I would have made the following submissions:
‘My client pleads guilty on the basis that he punched the victim once to the head with a bare clenched fist. The relevant injury was caused when the victim fell backwards onto the footpath, hitting the back of his head. The blow from the punch itself caused no injury. The injury was an unfortunate and unexpected result of the punch.
The injury was caused by a spontaneous act arising out of jealousy, against a background of intoxication which affected my client’s judgment. My client had been to a party with his defacto wife. She left the party without Mr Valensky, to go into town with friends from the party. Mr Valensky went into town later. As he approached the entrance to Rio’s nightclub, he saw the victim leaving Rio’s with his arm around Mr Valensky’s defacto wife. Mr Valensky did not know the man.
As a result of having been arrested in relation to the assault, my client spent some hours in custody.
He last offended in 1994. He received a suspended sentence for an offence of assault occasioning actual bodily harm committed in 1992 when he was aged 21. The bond was estreated due to subsequent offending (though not offending of a violent nature).
The current offence should be viewed in the context of an isolated aberration, given the substantial break in his offending and the rehabilitation he has undergone in the meantime. In 1994 when he last offended he was a user of amphetamines, an abuser of alcohol, and was in an unsettled relationship (with his current defacto wife). At the time of committing the current offence (and to date), he had rehabilitated himself to the point where he was drug-free, was a social drinker only, and his domestic life had become settled. He has matured significantly since 1994.
He is 26 years old. He was born in Whyalla. He has three sisters, one of whom died in tragic circumstances in March 1997, and one brother. His parents separated 17 years ago. He has a close relationship with his family. He completed Year 10 in Whyalla and then moved to Adelaide to look for work. He worked in a deli for about 9 months, and was then unemployed for a couple of years before finding work at Griffin Press, followed by work as a removalist. Recently he has been self-employed, selling health products to subsidise unemployment benefits. He pays rent of $150.00 per week. He and his defacto wife have an 8 year old boy.
My client is extremely regretful and contrite. He has pleaded guilty prior to the matter being listed for trial.’”
In his remarks on penalty the magistrate described the appellant’s response as “immature”. He said “Your response was way over the top, it was a vicious blow. You were intoxicated and I take that circumstance into account”. He also referred to the submission made by Mr Dadds that the appellant had somewhat reformed his behaviour and had become a social drinker since the prior offence of assault occasioning actual bodily harm in 1992. He went on to say:
“You may well have been settled in your family life since this incident, and if there had been no prior incident I could well have been able to consider the facts in your favour, your individual favour, to outweigh this particular offence. But I cannot do so. What you did was a brutal, anti-social act. You caused the victim harm and the public interest requires me to gaol you. I remind myself it is a last resort to commit you to gaol, but that is exactly what I will do. I cannot see that good reason exists to suspend the sentence.”
The magistrate then recorded a conviction and sentenced the appellant to be imprisoned for a period of five months to commence forthwith.
At the hearing of the appeal the appellant submitted that the magistrate had erred in that he had placed too much reliance on the appellant’s prior conviction for assault occasioning actual bodily harm and in so doing failed to give sufficient regard to matters personal to the appellant which indicated that he had made considerable progress towards his rehabilitation in the intervening period.
The learned sentencing magistrate understandably took a serious view of the appellant’s conduct. A sentence of five months imprisonment was appropriate in the circumstances of this case and the appellant does not really dispute that matter. The only issue which arises on appeal is whether the magistrate erred in the exercise of his discretion in refusing to make an order for suspension of that sentence and thereby imposed a sentence that was manifestly excessive.
The appellant has an extensive history of prior offending. Although he is not to be punished twice for his offences, his prior conviction for a similar offence was a relevant factor to be taken into account with respect to penalty. In 1993 he was given the benefit of a suspended sentence with respect to that offence. He breached that bond by committing further offences. At the same time he appears to have breached two other bonds imposed with respect to offences of driving while disqualified. Although the antecedent report is confusing it would appear that the appellant ended up serving a total sentence of about eight months. Counsel for the appellant submitted, however, that the breaching offences were not offences of violence and notwithstanding that the present offence occurred when the appellant was affected by alcohol, he had made a substantial improvement towards his rehabilitation since he was last before the court.
Both counsel, in the course of the hearing of this appeal, referred to cases which demonstrate the range of sentences available for this type of offence. In Sauberer v Hayes[1] an altercation occurred in a hotel between the victim and a man called Silva. The appellant intervened on behalf of his friend Silva and punched the victim in the face. That punch did not cause any injury but in the melee that followed the appellant lashed out with a stool which came into contact with the victim’s head, thereby causing a 7 cm laceration. The appellant had a prior record which included a conviction for assault occasioning actual bodily harm. For that offence he had received a suspended sentence. He broke the bond by committing the offence of armed robbery. At the time of sentencing he had not offended for about eight years. In that case the magistrate imposed an immediate custodial sentence of eight months. On appeal that sentence was found to be manifestly excessive and was reduced to three months and was suspended. Von Doussa J said (at p451):
“The final matter which this court must consider, even though the head sentence is to be adjusted, is whether that sentence of imprisonment should be suspended. Her Honour, as I construe her sentencing remarks, felt herself constrained by the decisions in R v Walker[2], and R v Wilton[3], not to suspend the sentence of imprisonment imposed on the appellant as he had broken a good behaviour bond pursuant to which imprisonment was suspended back in 1979. The statements of principle in Walker and Wilton have to be understood in the context of the facts of those cases. The offenders there had records for numerous offences and they had repeatedly broken bonds. They had displayed a mockery of the system under which they had been extended clemency, and breaches of the bonds had occurred not long before the sentences under appeal were imposed. In Drewitt v Rowbotham[4] White J, after drawing attention to the facts in Walker and Wilton, said those decisions did not establish a general proposition that a further suspended sentence should not be given after one where the terms of the suspension have been broken except only for grave and weighty considerations. In his Honour’s view, expressed at p4:
‘The discretion to grant a further bond in a particular case is an unfettered judicial discretion. It cannot be pre-empted by a blanket policy to the contrary.’
His Honour expressed similar views in Jones v Battersby[5].
In the appellant’s case, the fact that he broke a bond on an earlier occasion, is a matter to be taken into account in the exercise of the discretion under s4(2a) of the Offenders Probation Act. However, it is significant that the earlier breach occurred some eight years before the present offence, and that since then the appellant has sufficiently reformed his ways to have avoided any further offence involving violence. Indeed apart from one minor receiving offence, he has not been convicted of any relevant offences since 1979. It is also important in the exercise of the discretion to have regard to the circumstances and nature of the particular offence on which he has been convicted. As I have said, this offence was one committed impulsively. It was not an act of premeditated thuggery. The violence was of short duration and the appellant expressed regret immediately afterwards. There were elements of provocation in the behaviour of the victim; he was abusive, and he had become an aggressor against the appellant’s friend. The appellant, although in a misguided way, was, to use his own words as expressed to the magistrate, ‘trying to do the right thing’; by Silva. Although a weapon was used, its use was reckless and not deliberately aimed at a particular person.”
[1] (1988) 141 LSJS 448
[2] (1981) 27 SASR 315
[3] (1981) 28 SASR 362 at 367
[4] Now reported (1987) 139 LSJS 468
[5] (White J, unreported, 2 November 1987)
The respondent submitted, however, that the facts and circumstances of the present case were more akin to Walker and Wilton than Sauberer v Hayes (supra) and that the present appellant had not demonstrated the degree of rehabilitation which had occurred in Sauberer v Hayes. In the latter case, the appellant had not offended for a period of about eight years, had become self-employed and had invested heavily in a business which would have been substantially affected by reason of a sentence of imprisonment.
In my view, the matter is finely balanced. The appellant does have a poor record and this was a serious offence. It does, however, seem that this was an impulsive, spontaneous act, appropriately categorised by the magistrate as “thoroughly immature”. Although the victim suffered a severe injury, it would seem that the injury was caused as a result of his fall on the footpath, rather than the severity of the blow. The appellant appears to have been immediately contrite and pleaded guilty prior to the matter being listed for trial.
The appellant has not offended since his release from gaol on the last occasion, which seems to be a period of about two and a half years. Although this period is not as long as that of the appellant in Sauberer v Hayes, it is indicative of some progress towards rehabilitation. The magistrate appeared to accept that the appellant had been well settled in his family life since the earlier incident and commented that if there had been no prior incident he “could well have been able to consider the facts in your individual favour ... to outweigh this particular offence”. That suggests that the magistrate thought he was constrained by reason of the earlier conviction from giving the appellant the benefit of a further suspended sentence. In so doing he had insufficient regard to matters favourable to the appellant and I have therefore decided that it is appropriate to interfere with the sentence imposed, only to the extent that the sentence will be suspended on condition that the appellant enter into a bond in his own recognisance in the sum of $500 and to be of good behaviour for a period of 18 months.
It will be a condition of a bond that for a period of nine months he be under the supervision of a probation officer whose lawful directions he shall obey, which will include such directions as the probation officer considers appropriate as to the abstention from alcohol and the undertaking of appropriate programs directed to anger management.

[1998] SASC 6807

19 August 1998