Aplin v Police

[1999] SASC 273

APLIN v POLICE
[1999] SASC 273

Magistrates Appeal:  Criminal

1. DOYLE CJ. (ex tempore) This is an appeal against a sentence imposed by the Magistrates Court. The appellant pleaded guilty to charges of assault occasioning actual bodily harm contrary to s40 of the Criminal Law Consolidation Act; threatening harm intending to arouse fear that the threat would be carried out contrary to s19(2) of the Criminal Law Consolidation Act, and carrying an offensive weapon, a knife, contrary to s15(1)(a) of the Summary Offences Act.

2. The first two of these offences carry maximum sentences of five years imprisonment.  The maximum sentence that a magistrate could impose for any one of the offences is two years imprisonment.

3. The offences were committed as part of a single incident on 15 July 1998.  The victim of each offence is the appellant's father.

4. The magistrate imposed a single sentence of imprisonment of nine months.  He declined to suspend the sentence.  The issue on appeal is whether the sentence is manifestly excessive because the magistrate refused to suspend it.  The sentence of imprisonment itself is not challenged.

5. As best I can tell from the sentencing remarks, the magistrate accepted the substance of the submissions put to him at the time by Mr Keane who was acting for Mr Aplin.  I proceed on that basis.

6. Mr Aplin is 23 years of age.  He grew up in a family in which his father was an alcoholic.  His father was violent towards him at times.  There was also violence on occasions between his parents.  Mr Aplin was badly treated by his father in other ways and grew up feeling unwanted and inadequate.  He had a difficult time at school and was rather rebellious.  He has had limited education and has no trade skills.  In a sense, he is poorly equipped to cope with life.  Since leaving school Mr Aplin has had some employment.  He has a history of significant alcohol and drug abuse.  He has led a rather disorganised life, never settling down.  From time to time he has returned home to live with his parents despite the problems within the family.

7. At the time of the offences he was living at home.  He was addicted to amphetamines at the time and was feeling the effects of the addiction.  It was a low time in his life.  Not long before he had attempted suicide.  His relationship with his father had been bad for a long time.   He resented his father's treatment of him in the past.

8. At the time of the offences his father and mother were arguing.  I add that Mr Aplin has believed for some time that his father may have sexually abused him some years ago.  This is based on an incident that occurred when he  was about 14 years of age.  I think the magistrate must have accepted that Mr Aplin believed this.  Whether the belief is well founded or not does not have to be decided.   Mr Aplin also suspected that his father may have sexually abused his sister as well.  These matters added to Mr Aplin's feeling of hostility towards his father.

9. Mr Aplin says that during the argument, his mother accused his father of sexually abusing his sister.  Hearing this, Mr Aplin became enraged and lost control of himself.  All of his hostility towards his father came to the surface.  There was a sudden confrontation with his father.   It was obviously an impulsive response to the situation.   In the course of the confrontation Mr Aplin struck his father in the face, and then pushed him to the ground.  He then kicked him heavily on the chin breaking his jaw in two places.  This was the offence of occasioning actual bodily harm.  He then threatened to stab his father with a knife that he had in his hand.  This incident was the basis of the other two charges.

10. By any standard, this was a serious assault.  Mr Aplin caused quite serious injury to his father.  As I said at the outset, I consider that the magistrate accepted Mr Aplin's statement about his own background and so it can be accepted that the offence was committed under the influence of a deep-seated and long-standing hostility towards his father.  It can also be accepted that it was an impulsive offence triggered by the situation.  As Mr Balfour said in his original report (p.12):

    “Mr Aplin's aggression toward his father was the end product of many years of pent up anger toward his father for being physically, sexually and emotionally abusive towards him.  His offence was not highly premeditated but was rather impulsive and highly situational.”

11. However, it remains a very serious offence.  The magistrate had the benefit of a very detailed report from Mr Balfour, the psychologist from whose report I have just read.  Mr Aplin has expressed deep remorse to Mr Balfour.  He says that he knows what he did was wrong.  He says that since this occasion he has learned to think before acting and to control his anger and aggression.  He has stopped abusing drugs and found employment.  He has tried to make a fresh start.  These signs are promising but it is too early to tell if Mr Aplin has really turned the corner.  And, as will appear in a moment, a report prepared by Mr Balfour after the magistrate passed sentence shows that there are some complicating factors.

12. Mr Balfour believes that with proper assistance Mr Aplin might not re-offend.  He makes the point that Mr Aplin does not have a history of violent offending and that there are signs of an evolving maturity that was not there before.  Getting off drugs is an important part of this.

13. However, I have to add that Mr Aplin has a poor record.   He has a number of convictions for traffic offences.  His first significant criminal offence was in 1995 when he was 20 years of age.  He was convicted on two counts of breaking and entering a building.  Other dishonesty offences followed in 1996 and 1998, as did further traffic offences.  As the magistrate remarked, Mr Aplin has been leniently treated, receiving a number of suspended sentences.  He has been given plenty of chances.  The magistrate considered that the offence required imprisonment and I agree with that.

14. The magistrate then turned to the question of suspension.  He referred to the various purposes of punishment, the setting in which the offences occurred and the recent encouraging signs of improvement.  He noted the adverse affects of imprisonment.  He referred to Mr Aplin's failure to respond to leniency on other occasions.  He said that a jolt might turn Mr Aplin away from crime.  He then declined to suspend the sentence.

15. The only matters that I can identify that might have called for suspension when the matter was before the magistrate are the fact that the offence was triggered by a reference to events about which Mr Aplin felt a deep grievance, the impulsive nature of the offence and the changes that Mr Aplin has made since the offence.  There are some indications of rehabilitation.  Mr Aplin is still fairly young.  It is also appropriate to take account of the fact, as Mr Keane submitted, that these offences do not prove that earlier leniency has failed.  These offences are of a quite different character from the earlier offences and are very much a product of the immediate circumstances of the offences.

16. However, apart from these matters relating to Mr Aplin, the magistrate had to consider the community's interest as well.  It is clear he realised that.  The seriousness of the offences and the need to make it plain such violence cannot be accepted made it difficult for the magistrate to give Mr Aplin yet another chance.  Against that, of course, the magistrate had to weigh the extenuating circumstances on which I have already touched.  It was also important to consider the rehabilitation of the appellant and the community interest in his rehabilitation.  This is a very important matter.  I refer to the decision in Yardley v Betts (1979) 22 SASR 108 at 112.

17. As to the circumstances as they were before the magistrate, Mr Keane has put everything that could be put as I am sure he did before the magistrate.  The case is a difficult one.  Looking at things as they were before the magistrate, I find it to be very finely balanced.  But focusing on that stage of the matter, I am unable to say the magistrate was wrong in declining to suspend the sentence on the information before him.  The matters to which I have referred did make suspension a real possibility, but in such a finely balanced case, I cannot say that it was not open to the magistrate to reach the conclusion that he did.  If things remained as they were before the magistrate, I would have dismissed the appeal.

18. That leaves one further matter that was raised on appeal.  Mr Keane tendered a further report from Mr Balfour dated 23 June 1999.  I consider that the report can be admitted.  The issue for the court on appeal is whether the magistrate was right to act as he did on the material before him.  Usually evidence of matters occurring after sentence is passed is not admissible on appeal, because such matters are not relevant to the issue on appeal.  But when the fresh evidence deals with a matter that was before the court at the time of sentence, and discloses new and further aspects of such a matter that could not have been known then, the report can be admitted.  I refer to R v Smith (1987) 44 SASR 587. That requirement is met here.

19. The further report deals with Mr Aplin's mental state and the impact of imprisonment on him.  These are some of the issues that were canvassed in Mr Balfour's original report.  The report discloses that after being sentenced Mr Aplin made a serious attempt on his own life.  Subsequent assessments have indicated that Mr Aplin has probably suffered some brain damage as a result of this suicide attempt.  This apparently is affecting his concentration.  It may also be causing some behavioural disinhibition and loss of impulse control.  There is a real risk of a further attempt at suicide as a result of imprisonment.  Mr Balfour summarises the position as follows:

    “If given a lengthy custodial sentence I believe that there is a significant risk that Mr Aplin may develop an adjustment disorder, that is, depression associated with suicidal behaviour and make further suicide attempts of high lethality in response to the stressors associated with imprisonment.  Furthermore, there are no specialist services within Corrections to deal with the needs of individuals who require rehabilitation for an acquired brain injury.”

20. These are matters of which obviously the magistrate had no knowledge.  As Ms Barnett pointed out they do not all point one way.  In a number of respects, Mr Aplin's future is more cloudy.  Material in Mr Balfour's report makes me think that Mr Aplin's rehabilitation is going to be more difficult than the earlier report suggested.  Mr Aplin now has to cope with some new difficulties resulting from the brain damage.  However, the latest report does indicate that because of his condition resulting from the brain damage, Mr Aplin will find imprisonment particularly difficult.  As well, there is a significant risk of him becoming depressed and suicidal so imprisonment is likely to have a significant adverse affect upon his health.

21. The courts have always been cautious about allowing an offender's health to influence the sentencing process.   This is all the more true when the issue is the impact on the offender of the punishment.  In the R v Smith (1987) 44 SASR 587 at 589 Chief Justice King said:

    “The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender.  The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process.  Ill-health cannot be allowed to become a licence to commit crime nor can offenders expect to escape punishment because of the condition of their health.”

    However, as King CJ acknowledged this remains a relevant matter.

22. I have decided, after a good deal of thought, that these further developments do provide a basis upon which I should interfere.  The events go beyond just a severe reaction to the sentence imposed.  Mr Aplin has already done harm to himself with the result that imprisonment will now be more difficult for him.  I am also conscious of the community interest in Mr Aplin's effective rehabilitation.  This, of course, cannot be decisive but it is an important matter.   I consider that that interest will be advanced by giving Mr Aplin one more chance with the threat of significant imprisonment hanging over his head.  Of course, I am also concerned that his mental state is such that there is possibly an increased risk of further offending when he is at liberty.  However, as Mr Keane pointed out, there is reason to think that a suspended sentence will be a substantial impediment to that further offending, and in that way the community's interest will be both advanced and protected.

23. Weighing everything up, I consider that all of the circumstances, in combination, require that Mr Aplin be given one further chance and that the sentence be suspended.

24. I am satisfied that if all of these facts had been before the magistrate, that is the course that he should have taken.  I emphasise that I make this decision not just because of what has happened since sentence was passed.  I make it on the basis of all the facts, including the matters that were before the magistrate when he sentenced Mr Aplin.

25. I said earlier that the case was finely balanced.  It was a finely balanced case as it was before the magistrate.  The recent events are sufficient to tilt the scales in favour of the last chance, when those recent events are taken together with the circumstances of the offence, Mr Aplin's age, and the prospects of rehabilitation.

26. Therefore, I allow the appeal.  I vary the sentence imposed and I order that the sentence of nine months imprisonment be suspended on condition that Mr Aplin enter into a bond for a period of two years in the sum of $500 including the following conditions:

27. To be of good behaviour.

28. To be under the supervision of a Probation Officer for the period of the bond.

29. To undergo such medical or psychiatric or other treatment as may be recommended by the Probation Officer in light, in particular, of the reports from Mr Balfour.

30. To reside at 11 York Street, Northfield, or at such other place as the probation officer may approve.

31. To report within two working days to the office of the Department for Correctional Services at 8 Gaelic Avenue, Holden Hill between the hours of 9 a.m.  and 5 pm.

32. They are the proposed conditions of the bond, subject to any further submissions.  I also ask Mr Keane provide Mr Aplin with a letter to the department enclosing a copy of each of Mr  Balfour's reports and communicating to the probation officer my hope that Mr Balfour's reports will be carefully considered by the probation officer.