Aiden Bruford v Timothy Murphy
[2005] ACTSC 98
AIDEN BRUFORD v TIMOTHY MURPHY
[2005] ACTSC 98 (14 September 2005)
SENTENCING - appeal against sentence – wilfully marking premises – political protest graffiti – recognisance imposed – financial penalty ordered – penalty greater than authorised by law – whether convictions ought to have been recorded – offender otherwise of good character – relevant considerations – specific deterrence – general deterrence – planned and systematic nature of offences – seven separate offences – financial penalty reduced to authorised maximum – appeal otherwise dismissed
Crimes Act 1900 (ACT) s 402, 403
R v Burgess, R v Saunders [2005] NSW CCA 52
ON APPEAL FROM THE MAGISTRATES COURT
No SCA 39 of 2005
Judge: French J
Supreme Court of the ACT
Date: 14 September 2005
IN THE SUPREME COURT OF THE )
) No SCA 39 of 2005
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT
BETWEEN:AIDEN BRUFORD
Appellant
AND:TIMOTHY MURPHY
Respondent
ORDER
Judge: French J
Date: 14 September 2005
Place: Canberra
THE COURT ORDERS THAT:
The appeal is allowed to the extent that the penalty imposed by the learned magistrate is reduced from $1,500 to $1,000.
The appeal is otherwise dismissed.
Aiden Bernard McGregor Bruford was charged on 20 April 2005 with seven offences against s 119 of the Crimes Act 1900 (ACT) (the Crimes Act). That section of the Crimes Act makes it an offence to ‘wilfully mark by means of chalk, paint or other material’ any private premises without the consent of the owner or occupier or person in charge. It also makes it an offence to unlawfully mark by means of chalk, paint or any other material any property of the Australian Capital Territory (the ACT) or the Commonwealth or of an authority or body constituted by or under a law of the ACT or Commonwealth or another territory.
The maximum penalty prescribed for such an offence as set out in s 119 is a fine of $1,000, imprisonment for 6 months or both. The maximum, of course, is only the latter, that is, a fine of $1,000 and imprisonment for 6 months.
The charges against Mr Bruford alleged that he used spray paint to mark the following things:
(i) Three electricity boxes, the property of the ACT Electricity and Water, an authority under a law of the ACT. These boxes accounted for four of the charges as he was charged with two separate offences in respect of different markings on one of the boxes.
(ii) A concrete wall at the underpass on London Circuit, being the property of the ACT.
(iii)Bernadette’s Vegetarian Café and the National Bank at the corner of London Circuit and Ainslie Avenue, Canberra City;
without the consent of their owners.
Mr Bruford pleaded guilty to each of these offences in the Australian Capital Territory Magistrates Court on 5 May 2005. In respect of each of the matters, he was convicted. In respect of the charge relating to an electricity box near Girrahween Street, Turner, he was ordered to be released upon his own recognisance in the sum of $1,000, to be of good behaviour for a period of 12 months and to pay a penalty to the ACT in the sum of $1,500. He was allowed 28 days to pay that amount and was ordered to pay court costs of $54.
On each of the other matters, Mr Bruford was convicted and discharged upon entering into the recognisance ordered in relation to the Girrahween Street charge. He was ordered in respect of each of the other charges to pay court costs of $54 and given 28 days to pay.
Mr Bruford has now appealed the learned magistrate’s decision on the ground that:
(1) The sentence imposed was manifestly excessive;
(2) The learned magistrate erred in placing undue weight on both general and specific deterrence;
(3) The learned magistrate erred in placing insufficient weight on admissions made by the appellant in the course of the police investigation.
The last ground of appeal, relating to the weight given by the learned magistrate to admissions made by Mr Bruford at the time of his apprehension, has been abandoned.
It is not necessary for present purposes to recount the facts of the offences in great detail. Mr Bruford was found by police on 7 April 2005 at Bernadette’s Vegetarian Café at about 11.35 pm. His car contained stencil templates and four cans of spray paint, red, blue, black and silver. He was standing at the wall of the café on which there were sprayed images which matched the stencil templates in his car. He subsequently admitted to the commission of these and other offences for which he was charged.
The stencilled images were by way of political protests. One of the images depicted a Panda bear with the word ‘politician’ under it. Another showed the Australian Coat of Arms with the words ‘terrorist holding facility’ and ‘alert but not alarmed’ written underneath. Another showed an image of the Prime Minster holding a machine gun and a dove holding an olive branch. This was the image which appeared on the western wall of Bernadette’s Vegetarian Café.
When questioned by police, Mr Bruford said, among other things, that he did not like plain concrete walls and while he did not like tagging graffiti, he did like pretty pictures and making political statements.
In a written statement tendered to the learned magistrate, Mr Bruford said he had grown up in Queensland and after completing his secondary education had moved to Canberra where he enrolled at the Australian National University in an Arts/Law degree course. He had graduated with honours in political science and with a law degree. While completing a graduate diploma of legal practise, he was offered employment in the Office of the Chief Minister, which he held at the time of the commission of these offences.
He described himself as a person with a strong social conscience. He was opposed to Australia’s involvement in the war in Iraq. He took part in a number of lawful protests about that involvement. He said in his statement that the decision by the Australian Government to go to war in Iraq provoked a strong reaction from him. He then said -
Unfortunately, I also chose to impose my views on others inappropriately and illegally. I respect people’s property and expect people to respect mine. I recognise that I would feel aggrieved if someone committed these offences on my property - regardless of what political message, if any, their damage was intended to convey. I deeply regret, and am sorry for, the fact that this was the effect of my actions.
He has no prior criminal record and produced a number of very positive character references. In a plea in mitigation, his counsel, Mr Sharman, said -
Mr Bruford himself is deeply opposed to our participation in the war in Iraq and he has actively and, in the past, legally participated in a range of protests. He accepts, your Worship, that recently he became increasingly frustrated as to our continued participation and that frustration contributed to him doing something which he acknowledges was both inappropriate and of course unlawful.
There was some debate before the magistrate about Mr Bruford’s admissions to police and the extent to which some of them were merely a recognition that he had been caught red-handed. In his sentencing remarks, the learned magistrate accepted that Mr Bruford had co-operated with police in relation to his apprehension. He rejected a submission by Mr Bruford’s counsel however that he make an order under s 402 of the Crimes Act for the dismissal of the charge or for conditional release without proceeding to conviction.
In rejecting that submission, the learned magistrate had regard to the various factors set out in s 402(1)(b) of the Crimes Act. He accepted that Mr Bruford was a person of good character with no other appearances before the Court. He was a ‘relatively young man.’ There were no relevant physical or mental health issues. The learned magistrate said -
It does appear to me however, that these offences are serious and looking at the first leg of 402, it doesn’t seem to me that the benefits of character and antecedents are adequate to attract other provisions of section 402.
He continued -
The other provisions of 402(1)(b) relate to the offence being of a trivial nature. It’s clear that these offences could not be regarded by anybody as being of a trivial nature. And the third leg is that the offences, were committed under extenuating circumstances. I accept that, Mr Bruford has genuinely held and [has] sincere views about the appropriateness of political decisions that have been made in this country, in relation to the current situation in foreign countries, but he expressed those strongly held views previously it would seem in a lawful and appropriate way, but as I understand the submissions of Mr Sharman, his anger and frustration became such that he apparently took the view that it was no longer appropriate for him to continue to protest in the way that he had and that he had to take some action which was illegal and which has brought him before the court today.
Looking at those three legs of 402, I am of the view that it is not appropriate to extend that degree of leniency to the defendant in relation to these matters. The Crimes Act, sets out in various sections and it is not necessary for me to go into all of those today other than to indicate that they must be taken into consideration in any sentencing exercise and two of the more significant issues, I think, in this particular sentencing is the question of specific deterrence relating to the defendant and general deterrence relating to the community at large.
While accepting that Mr Bruford had shown remorse by a payment of compensation and by his pleas of guilty, the learned magistrate was of the view that his criminal activities on more than one occasion which had resulted in him being brought before the Court were a consequence of –
… anger and frustration, being the words, I think, Mr Sharman used, which the defendant experiences in relation to the political decisions that have been made about with which he doesn’t agree. (sic)
Because of the continuing existence of the occasion for Mr Bruford’s anger and frustration, it seemed to the learned magistrate that there was a need for a specific deterrent. His Worship then referred to the question of general deterrence and mentioned a decision of the New South Wales Court of Appeal in R v Burgess, R v Saunders [2005] NSW CCA 52 in which that Court upheld a sentence of periodic detention in relation to an attack upon the Opera House.
In so saying, the learned magistrate accepted that the Opera House offence ‘was far more dramatic and serious in the sense of economic damage than the offence committed by Mr Bruford’, nevertheless, it seemed to him that the Court of Appeal ‘clearly was of the view that offences of this sort are not pranks but are serious criminal offences which must attract consequences upon the perpetrators.’ Factors of character, remorse, the early plea of guilty and the payment of compensation were ‘substantial factors’ in favour of Mr Bruford. They weighed against the imposition of any custodial sentence.
The learned magistrate then proceeded to impose the penalties to which I have already referred to.
Before turning to the contentions in the appeal, it is appropriate to have regard to ss 402 and 403(1)(a), (3) and (6) of the Crimes Act -
402(1) If –
(a)a person is charged before a territory court with an offence against a territory law; and
(b)the court is satisfied that the charge is proved but is of opinion, having regard to –
(i)the character, antecedents, age, health or mental condition of the person; or
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation;
the court may dismiss the charge or, without proceeding to conviction, by order, direct that the person be discharged on his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court, that –
(c)he or she will be of good behaviour for the period, not exceeding 3 years, that the court specifies in the order; and
(d)he or she will, during the period so specified, comply with the conditions (if any) that the court thinks fit to specify in the order, which conditions may include –
(i)the condition that the offender will, during the period so specified, be subject to the supervision on probation under a person, for the time being, appointed in accordance with the order; and
(ii)the condition that the offender will obey all reasonable directions of a person so appointed; and
(iii)the condition that the offender will comply with an order made under section 350.
(2)If a person has been discharged under an order made under subsection (1) on the condition that he or she will be of good behaviour for a period specified in the order (the period of good behaviour) and information is laid before a magistrate, whether before or after the end of the period of good behaviour, alleging that the person has, during the period of good behaviour –
(a)failed to be of good behaviour; or
(b)failed to comply with a condition specified in the order in accordance with subsection (1)(d);
The magistrate may issue a summons directing the person to appear before the court by which the person was discharged at a time specified in the summons and show cause why the person should not be dealt with by that court under this section, or, if the information is laid on oath, may issue a warrant for the arrest of the person and for the person to be brought before that court to be dealt with under this section.
(3)If a person who has been discharged by an order made under subsection (1) appears before the court by which the person was discharged on summons or warrant issued under subsection (2), the court may, if it is satisfied that the person has, during the period of good behaviour –
(a)failed to be of good behaviour; or
(b)failed to comply with a condition specified in that order in accordance with subsection (1)(d);
Impose on the person any penalty that the court would, if the person had then and there been convicted of the offence with which he or she was originally charged, be empowered to impose or make any order (including an order under subsection (1) or an order under section 403(1) that the court would, if he or she had then and there been convicted of the offence of which he or she was originally charged, be empowered to make.
(4)If a recognisance that was entered into in accordance with an order made under subsection (1) is varied under section 405, a corresponding variation shall be deemed to have been made in the terms of that order, and subsections (3) and (4) apply to and in relation to that order –
(a)if the period specified in the order in accordance with subsection (1)(c) is to be deemed to have been varied – as if references in subsections (3) and (4) to that period were read as references to that period as it is to be deemed to have been varied; and
(b)if the conditions specified in the order in accordance with subsection (1)(d) are to be deemed to have been varied (whether by the alteration of such a condition or the addition of a further condition) – as if references in subsections (3) and (4) to a condition included in those conditions as they are to be deemed to have been varied.
(5)If a person is dealt with under subsection (3) the court may, in addition to imposing a penalty on the person or making an order against the person, order that any recognisance given by him or her or by a surety for him or her shall be estreated and that any other security given by or in respect of him or her shall be enforced.
403(1)Subject to this section, if a person is convicted of an offence against a territory law, the court by which he or she is convicted may, if it thinks fit, by order –
(a)release the person without passing sentence upon him or her on his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court that –
(i)he or she will be of good behaviour for the period the court specifies in the order; and
(ii)he or she will during the period so specified, comply with the conditions (if any) that the court thinks fit to specify in the order, which conditions may include –
(A)the condition that the offender will, during the period so specified, be subject to the supervision on probation under a person, for the time being appointed in accordance with the order; and
(B)the condition that the offender will obey all reasonable directions of a person so appointed; and
(C)the condition that the offender will comply with an order made under section 350; and
(iii)he or she will pay to the Territory the penalty (if any) that the court specifies in the order on or before a date specified in the order or by specified instalments as provided in the order; or
…
(3)If a person is convicted of an offence in respect of which a fine might be imposed on the person instead of imprisonment, subsection (1) does not authorise the court by which he or she is convicted, when directing that the person be released as provided in subsection (1)(a), to require the person to give security for the payment of a penalty exceeding the maximum amount of the fine that might be so imposed.
…
(6)The maximum amount of the penalty that a court may specify in respect of an offence in an order made under subsection (1) in relation to a person is –
(a)if the offence is punishable by a fine – the amount of the maximum fine that the court is empowered to impose on the person for the offence; or
(b)if the offence is not punishable by a fine –
(i)for the Supreme Court - $10 000; or
(ii)for the Magistrates Court - $2 000.
The security ordered in this case was by way of a recognisance in the sum of $1,000 to be of good behaviour. An order was made that Mr Bruford pay the ACT a penalty of $1,500.
The first point that is taken on behalf of Mr Bruford is that the amount of the penalty was beyond the power of the magistrate to impose having regard to the provisions of subs 403(6) and the fact that the maximum fine payable for the offence under s 119 of the Crimes Act is $1,000. That contention seems to me, subject to one qualification, to be correct. It does appear that, under the directly applicable provision which is s 403(3), the offence is one for which a fine may be imposed instead of, or in addition to, a term of imprisonment. The maximum fine is $1,000. The learned magistrate, in making the order relating to the penalty, was clearly in error. To that extent, the appeal will be allowed.
Counsel for the appellant submitted that the learned magistrate erred in the weight he gave to considerations of specific and general deterrence in declining to proceed with a non-conviction disposition under s 402. In relation to the question of specific deterrence in my opinion, the magistrate inferred, as he was entitled to do, that the circumstances which gave rise to Mr Bruford’s frustration, that is, Australia’s involvement in Iraq were continuing, and that his sense of frustration would no doubt continue. He was entitled to draw that inference.
It does not reflect any error in the exercise of his discretion that he did. His reference to anger on the part of Mr Bruford was not expressly supported by the use of that term by Mr Bruford’s counsel. It is nevertheless in this context and in the circumstances a description of a state which clearly relates to and may overlap with that described as frustration. There was no error in relation to the question of specific deterrence.
On the question of general deterrence, some of the reasoning expressed in the transcript of the magistrate’s sentencing remarks was not expressed with clarity. However, the issue had been raised by the prosecution counsel who said in the course of his submissions -
First, your Worship, is the issue of general deterrence. My submission, your Worship, is that Canberra, like any other city, is a place where what is known as graffiti is relatively prevalent. Your Worship, I’d ask you to take the issue of deterrence so that the community can expect that courts will take these matters seriously as indeed the legislators have taken them seriously. That’s something that your Worship is entitled to take into account in determining the appropriate penalty.
As to that, the learned magistrate said in the course of his remarks -
As Mr Lundy says, the question of general deterrence I think in this case is of great moment. The community I think has expressed itself from time to time about the undesirability of these sorts of attacks upon the public or private property and indeed one can say I suppose that the anger that and the protest that this defendant was wishing to exhibit during the course of his criminal activities was not, as I understand the charges, directed at any property owned by the Commonwealth, but more owned by private individuals or ACT instrumentality. So this theory in that sense was perhaps misdirected.
It is interesting to note that recently in the Court of Appeal in New South Wales in the case of R v Burgess and Saunders, that Court upheld a sentence of periodic detention in relation to an attack upon the Opera House which achieved a degree of notoriety at that time, in that place and in that decision both the District Court judge who imposed the sentence and the Court of Appeal who upheld his decision, indicated that offences of this sort were serious and indeed Adams J in the Court of Appeal indicated that in his view the offences of that type would attract actual periods of imprisonment.
The learned magistrate’s reference to the Burgess and Saunders’ case was accompanied by an acknowledgment on his part that the offence in that case involved a far more serious and dramatic attack upon public property than the offences committed in this case. However, the learned magistrate recognised the factual distinction. He sought to draw from the case the uncontroversial proposition that offences of this kind are serious criminal offences which must attract consequences for the perpetrators.
In this I do not think that he erred, albeit the term ‘serious’ is always relative. The offence does attract or can attract a term of imprisonment under the Crimes Act together with a fine. In the end, I am not satisfied that the magistrate’s discretion miscarried in his refusal to proceed under s 402 and his decision to proceed under s 403 instead. Even were there error in his treatment of the general deterrence issue, I do not consider that that would make such a difference to the consideration of s 402 that I would be disposed to substitute an order under that provision.
These offences were, as Mr Bruford admitted in his statement to police, planned and systematic. They were committed by somebody who ought to have known a lot better given his educational background. He knew that there were lawful outlets for his views, indeed he had taken part in such protests in the past. Frustration is not an excuse for breaches of the law by way of attacks upon public or private property. The disposition of the appeal in this case will be that –
(1) The appeal is allowed to the extent that the penalty imposed by the learned magistrate is reduced from $1,500 to $1,000.
(2) The appeal is otherwise dismissed.
I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice French.
Associate:
Date: September 2005
Counsel for the Appellant: Mr J Sabharwal
Solicitor for the Appellant: Hill & Rummery
Counsel for the Respondent: Ms Whitbread
Solicitor for the Respondent: Director of Public Prosecutions
Date of hearing: 14 September 2005
Date of judgment: 14 September 2005
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