Zoppa v Director of Public Prosecutions (SA)

[2010] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

ZOPPA v DIRECTOR OF PUBLIC PROSECUTIONS (SA)

[2010] SASC 113

Judgment of The Honourable Justice David

29 April 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence - appellant pleaded guilty in the Adelaide Magistrates Court to one count of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) - magistrate recorded a conviction and imposed a penalty of six months with an order that the appellant serve two months in prison and that he be released on a bond to be of good behaviour for the balance of four months - whether magistrate had regard to matters personal to the appellant - whether magistrate erred in failing to completely suspend the term of imprisonment imposed.

Held:  Appeal dismissed - magistrate had sufficient regard to matters personal to the appellant - no error demonstrated on part of the magistrate to partially suspend the term of imprisonment.

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION

Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 38(2a), referred to.

ZOPPA v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2010] SASC 113

Magistrates Appeal

1. DAVID J.              The appellant was convicted upon his plea of guilty in the Adelaide Magistrates Court to one count of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The fact of aggravation alleged was that this offence was committed in company with another person, namely, Daniel Anthony Whiteroad.

2. The appellant was sentenced to a term of imprisonment of six months. The magistrate ordered that he serve two months imprisonment and the balance of four months be suspended upon him entering into a bond. The conditions attached to the bond were that he:

   ·be of good behaviour for four months; and

   ·be under the supervision of the Department of Correctional Services for the period of the bond.

   The partial suspension was invoked pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA).

3. The appellant appeals against the sentence on the ground that the magistrate erred in partially suspending the term of imprisonment and should have wholly suspended the sentence. He argues that the sentence as imposed failed to give sufficient weight to matters personal to the appellant, in particular his psychological history and favourable prognosis.

   Background

4. On Monday, 27 October 2008, the appellant approached the male victim, who was standing near a hotel in Hindley Street. At the time, the appellant was in company with his co‑accused, Mr Whiteroad. Both of them assaulted the victim by punching him and pushing him to the ground. The attack was unprovoked. Having knocked the victim to the ground, both the appellant and Mr Whiteroad stomped and kicked him to his head and chest, to such an extent that he lost consciousness and suffered a fractured jaw which required an operation, plus bruising and swelling to his head and chest area. When witnesses attended the scene, both the appellant and Mr Whiteroad ran away.

5. During submissions before the sentencing magistrate the appellant’s counsel tendered a report from Mr Allen Fugler, a psychologist, which noted that the appellant had an IQ of less than 70, placing him in the mildly retarded range, that he had significant learning difficulties and was teased and bullied at school, was socially isolated and at the time of sentencing in receipt of a Disability Support Pension. It was also pointed out in submissions that because of his disability he would require protection in custody and would be vulnerable to abuse in the prison system. In addition, that although the appellant had a previous court appearance for assault, that charge was dismissed without conviction, and he had no other relevant prior court appearances.

6. The magistrate, utilising the power under s 38(2a) of the Criminal Law (Sentencing) Act, imposed a head sentence of eight months imprisonment, which he reduced to six months because of the appellant’s plea of guilty. He then ordered four months of that term be suspended as already described.

   Discussion

7. Mr Stokes, counsel for the appellant, now argues that although the offending was “a very nasty assault”, and although the head sentence of six months imprisonment was not outside the magistrate's discretion, nevertheless, when considering whether there was good reason to fully suspend the term of imprisonment, not enough regard had been given to the personal circumstances of the appellant and his prospects of rehabilitation. He pointed out that it is now agreed that the appellant has undertaken courses and has the support of his employment counsellor. Mr Stokes put it that although no particular error can be disclosed, the magistrate erred in not suspending the whole of the sentence.

8. In his sentencing remarks, the magistrate clearly turned to the question of whether there was good reason to suspend the sentence of six months imprisonment. He said:

   In relation to you Mr Zoppa, together with the other matters that I have already referred to I have had regard to the following; You have had a previous court appearance for assault and that was dismissed without conviction and you have no other relevant prior court appearances. You have not been in trouble since this incident; you are contrite and acknowledge that this was a terribly wrong thing to do. You are training at the moment to become a kitchen hand in the hospitality industry and you are engaging well with social workers and responding to training. It is very important for your future that you continue to follow in this direction.

   …

   In considering whether there is good reason to suspend I have had regard to the authorities that I was referred to by Mr Stokes. The circumstances that I have referred to provide reason, in my view, to partially suspend the sentence that has been imposed but I am not persuaded to fully suspend that sentence. In my view the seriousness of the offence, personal and more particularly general deterrence, even though moderated having regards to both of your disadvantage, warrant that at least some part of that sentence be served.

   Conclusion

9. I can find no demonstrable error in the magistrate’s approach. To partially suspend the term of imprisonment in the way he did was well within his sentencing discretion. The magistrate was clearly concerned about the extreme nature of the assault. The attack was unprovoked and was instigated by two people, whereby the victim was punched and kicked into unconsciousness, suffering a very serious injury, namely a broken jaw. The magistrate clearly allowed for those matters personal to the appellant by partially suspending the sentence in the way that he did. I can find no error in his approach or in the sentence that he imposed.

10. I dismiss the appeal.