Danielle Geelen, who pleaded guilty to aggravated assault causing harm following an incident at Mary’s Poppin nightclub in Adelaide, has successfully appealed her sentence.
The South Australian Supreme Court found that the sentencing Magistrate, Justin Wickens, denied her procedural fairness, in part, by deciding the sentence on a different factual basis to that agreed by the parties – without notice.
The incident occurred in June 2023, when another nightclub patron threw a drink at Geelen. Geelen responded by throwing her own drink, plus a glass bottle, which struck the complainant and fractured her front teeth.
Geelen pleaded guilty to aggravated assault causing harm, contrary to s.20(4) of the Criminal Law Consolidation Act 1935 (SA). She was sentenced to two months’ and 21 days’ imprisonment, suspended upon entry into a 12-month good behaviour bond in the sum of $500.
On appeal, Wicken’s sentence was overturned by Justice Rachael Gray, who found that several aspects of the sentencing process cumulatively amounted to a denial of procedural fairness.
First, the Magistrate decided the matter on a different factual basis to that agreed by the parties. The Magistrate treated the assault as retaliation by Geelen for having a drink spilled on her.
In contrast, the defence and prosecution presented the altercation as a “spontaneous excessive reaction” to the complainant throwing a drink.
The prosecution further noted that Geelen may not have even realised she still held a bottle. There was no reference to this by the Magistrate.
The Supreme Court held that although a magistrate is not bound by the parties’ agreed facts, procedural fairness means that the parties must be notified and given an opportunity to respond if the magistrate intends to proceed on a different factual basis.
Such an opportunity was not provided.
Secondly, the defence counsel was not put on notice that the Magistrate was considering imprisonment, and therefore made no submissions on that issue.
Neither party had sought a custodial sentence during proceedings. Moreover, during the trial the Magistrate had indicated that submissions should be directed primarily to the question of whether a conviction should be recorded, which was described as the “real nub” of the case.
Geelen argued that if her counsel had been aware that imprisonment was a consideration, different submissions would have been made. This was accepted by Gray J.
Thirdly, it emerged that at trial, there was a difference between the facts as understood by the prosecution and those as understood by the defence.
In particular, the defence counsel failed to expressly articulate that they relied on an excessive self-defence argument based on R v Stubberfield.
Although Gray J doubted whether this third matter alone could amount to a denial of procedural fairness, she held that these instances, when viewed cumulatively, do.
The error was such that the sentencing process miscarried, resulting in a practical injustice to the appellant.
The matter was remitted to the Magistrates Court for a disputed facts hearing.
Further grounds of appeal, such as that the Magistrate gave inadequate reasons, or that the sentence was manifestly excessive, were not addressed.