Badari v Police No. Scciv-03-285

BADARI V POLICE
[2003] SASC 149
Magistrates Appeal (Criminal)

LANDER J. This is an appeal against both conviction and sentence imposed in the Magistrates Court.
The appellant was charged with two offences both alleged to have been committed on 16 February 2002. He was charged with assaulting Stephen Moulds, a member of the police force in the execution of his duty. He was also charged with resisting Stephen Moulds in the execution of his duty.
He pleaded not guilty to both offences. A magistrate convicted him of the first count and acquitted him of the second.
He has appealed against his conviction on the first count.
He claims that the Magistrate erred in failing to give “due weight to the variance of a version of events presented by witnesses for the prosecution and including the police victim”.
He was sentenced to be imprisoned for a period of 11 months. The Magistrate ordered that he be released after serving five months and that the balance of the term of imprisonment should be suspended upon him entering into a bond to be of good behaviour for the term of the bond.
The appellant has appealed against the sentence which he claims is manifestly excessive.
Rachel Morton is a police officer. She has two brothers, Jonathon and Jason. Rachel Morton, her two brothers, Terrine Renfrey and Tracey Jenkins were in Ardrossan, on 16 February, for an overnight fishing trip. On that afternoon or evening Jonathon and Jason went to the Ardrossan Hotel.
Whilst at the hotel they were involved in an altercation with a person by the name of Brian. Craig Mullins intervened and a scuffle occurred.
The scuffle was broken up and the appellant escorted the two boys out of the Hotel. One of the boys was crying. The two boys returned to the Ardrossan Caravan Park where they complained to Terrine Renfrey, Tracey Jenkins and Rachel Morton about the way they had been treated at the Hotel and that their jackets, mobile phones and fishing rods had either been stolen, lost or left at the Hotel.
The three women told the Morton boys to remain at the Caravan Park and they drove to the Ardrossan Hotel.
Tracey Jenkins is also a police officer and she knocked on the door of the Hotel and identified herself as such. Eventually she was admitted into the Hotel and she later emerged with the lost property which had been found at the rear of the Hotel.
Tracey Jenkins telephoned Constable Moulds, who was a police officer on duty at Ardrossan.
Constable Moulds attended at the Hotel.
Whilst they were waiting for Constable Moulds the three women spoke to a number of those persons outside the Hotel. Only one of those persons was aggressive. That was Mr Mullins.
Notwithstanding the previous instruction the Morton boys attended at the Hotel. Jonathon Morton identified Mr Mullins as the person who had been involved in the scuffle in the Hotel. There was some evidence that immediately prior to this, Jonathon Morton identified Mr Badari as the person involved in the scuffle. On that evidence, Mr Badari identified himself as the man who had assisted the boys from the Hotel and it was then that Mr Morton’s attention was drawn to Mr Mullins.
Mr Mullins became agitated and he either pushed Constable Moulds in the chest or punched him in an effort to get at the Morton brothers. Constable Moulds arrested Mr Mullins.
Tracey Jenkins assisted. Constable Moulds said that whilst he was executing that arrest the appellant leapt on him from behind with his hand around Constable Moulds’ neck. He was pulled backwards to the ground and as a result let go of Mr Mullins.
Mr Moulds had a can of capsicum spray in his hand which he had used to assist in the arrest of Mr Mullins.
Ms Jenkins took the spray can from Mr Moulds after he fell to the ground. She directed the spray can towards Mr Moulds’ attacker and then towards the crowd, telling them to stay back. Her evidence was that she did not use the spray.
The prosecution called Ms Renfrey, Ms Jenkins, Ms Morton and Constable Moulds.
There are some variances in the evidence of those witnesses but, of course, that is to be expected from separate accounts of a fast moving and volatile situation.
There is, however, no doubt that it was the appellant who attacked Senior Constable Moulds from behind and pulled him to the ground.
Constable Moulds’ evidence is important. He said that the situation appeared to be under control until Jonathon and Jason Morton arrived. Jonathon Morton approached him and pointed out a person in the crowd that he claimed had assaulted him. That person then approached Jonathon Morton and they started grappling with each other. Constable Moulds said that he stepped in to try and break them up and whilst doing so he was assaulted by the other person who was Mr Mullins. He said that Mr Mullins grabbed him by the front of the shirt and then punched him three or four times in the chest forcing him backwards.
Constable Moulds said that he told Mr Mullins to let go and then told him he was under arrest for assaulting a police officer.
Constable Moulds said that Mr Mullins kept yelling at him. Constable Moulds had a can of capsicum spray on him. He took hold of the can and sprayed Mr Mullins in the face. Mr Mullins was quite close at the time and as he was attempting to spray him he hit Mr Mullins on the nose with the can and split his nose. The spray subdued Mr Mullins. Constable Moulds’ evidence was that there was no-one behind Mr Mullins when he was sprayed.
The appellant gave evidence and called Mr Mullins, Ms Nicholson (an eye witness), Ms Hicks (another eye witness) and Adam Mullins. The evidence of the two eye witnesses was not inconsistent with the prosecution evidence.
Indeed Ms Nicholson’s evidence was to the same effect as the prosecution evidence. She said that after Mr Moulds took hold of Mr Mullins, the appellant took hold of Mr Moulds from behind. Her evidence was slightly inconsistent with Constable Moulds in relation to the use of the capsicum spray on Mr Mullins but not so as to be materially different. She said that when Constable Moulds grabbed Mr Mullins from behind he brought the spray can down in front of Mr Mullins’ face in an attempt to spray him in the face and in doing so actually sprayed himself. She said the appellant and Mr Moulds fell into the gutter.
In one other respect she disagreed with the prosecution evidence. She said that Ms Jenkins sprayed the crowd with capsicum spray. That is, of course, contrary to Ms Jenkins’ evidence. I think Ms Nicholson is unlikely to be right about that. I think there might be an element of assumption in her evidence that arose because Ms Jenkins held the spray can directed to the crowd. I think that fact coupled with the fact that she later felt the effects of the capsicum led her to think that Ms Jenkins had sprayed the crowd. Probably the effects of the capsicum spray on her were caused by the earlier spray by Constable Moulds.
In the end nothing turns on those differences.
The appellant said that he attempted to restrain Mr Mullins so that Mr Mullins would not get himself into any trouble. He thought he grabbed Mr Mullins from behind but he then heard someone yell “it’s a police officer, it’s a police officer”. He said it was dark outside the Hotel and there was only one streetlight.
He maintained that, as far as he was aware, he had hold of Mr Mullins.
There really was only one issue in the case and that was whether the prosecution had proved beyond reasonable doubt that the appellant intended to assault Constable Moulds or whether, as he said, he was merely trying to restrain Mr Mullins.
The Magistrate discussed the evidence of each of the witnesses in some detail and referred himself to the appellant’s evidence where the appellant said that he believed he was restraining Mr Mullins.
He rejected the defendant’s evidence that the area was poorly lit and found that the conditions were such that people could be distinguished quite plainly. He rejected the appellant’s explanation observing that Mr Mullins possessed an entirely different stature to that of Senior Constable Moulds. He found that there was a deliberate application of force by the appellant to Constable Moulds and he rejected the appellant’s suggestion that it was a matter of mistaken identity.
He accepted the prosecution witnesses as witnesses of truth and clearly preferred their evidence to the appellant’s evidence and that of his witnesses.
He said that he thought that the appellant’s witnesses were influenced by considerations of loyalty.
I do not think that the Magistrate was forced into a position where he had to prefer the evidence of the prosecution or that of the appellant and his witnesses. As I have said there is little dispute between the evidence of the various witnesses. The witnesses do not agree on all facts but I would be surprised if they did. The witnesses saw things in a fast moving situation from different angles. Some have better recollections than others.
However, in the end result, as I have said, there was only one issue in this case. It is clear beyond doubt that the appellant grabbed hold of Constable Moulds around his neck from behind and dragged him to the ground whilst Constable Moulds was executing the arrest of Mr Mullins.
There was no dispute about that. He did so after Constable Moulds had sprayed or attempted to spray Mr Mullins with the capsicum spray and after Mr Mullins had been restrained.
The only question in the case was whether the prosecution had proved beyond reasonable doubt that the appellant intended to assault the police officer. The question was whether the prosecution had negated the appellant’s defence that he believed he was restraining Mr Mullins.
In those circumstances the differences in the witness’s evidence were not, in my opinion, material.
Of course, as the Magistrate pointed out, the appellant had no obligation to prove anything in the case. The prosecutor needed to negate the appellant’s claim of mistaken identity. The Magistrate found that the prosecution had done exactly that. The Magistrate was satisfied that the appellant had assaulted the police officer in the manner described by the witnesses.
The appellant’s explanation could be described as opportunistic. The Magistrate was entitled, on the evidence, to reject the explanation if he was satisfied beyond reasonable doubt that the appellant intended to assault Constable Moulds.
In my opinion, that finding was open on the evidence especially having regard to the different physical builds of Mr Mullins and Constable Moulds.
In my opinion no error has been shown in the Magistrate’s approach.
I would dismiss the appeal against conviction.
The appellant has complained that the sentence is manifestly excessive and in doing so he pointed to his assisting the Morton boys to leave the Hotel earlier in the evening in question. He also contended that the sentence of 28 days imposed on Mr Mullins which was suspended, supported his contention that his own sentence was manifestly excessive. Mr Mullins, on an earlier occasion, had pleaded guilty to assaulting Senior Constable Moulds and resisting arrest. The appellant said that Mr Mullins’ behaviour was more aggressive than his and in those circumstances his sentence should be reduced.
The appellant’s contention is really that there is a disparity between the sentence imposed on Mr Mullins and that imposed on him. The appellant and Mr Mullins were not charged with committing the same offence or acting in concert. They were not charged jointly and nor should they have been. They were not co-offenders. They were each charged with committing a separate assault on a police officer. They were charged with committing two quite separate offences albeit that the offences were committed within a very short period of time, and were committed against the same police officer.
Mr Mullins, who pleaded guilty to assaulting a police officer, was sentenced by another magistrate, who sentenced on the basis that Mr Mullins had “pushed” the police officer in circumstances where Mr Mullins was not angry with the police officer but with the Morton brothers.
The appellant does not have a good record. He appeared twice before the Childrens Court charged with assault in 1984 and 1985. No conviction was entered in respect of either of those appearances but on the second occasion he was fined.
He has two more convictions for assault as an adult in 1987 and 2000.
He has a number of other convictions involving motor vehicles, offences of dishonesty and property damage.
This offence was committed on a police officer whilst he was on duty and attempting to arrest a person who had assaulted him.
This was a volatile situation. The appellant’s conduct could have sparked further assaults. Police officers are entitled to protection in carrying out their duty. This sentence had to be structured to cater for aspects of general and personal deterrence.
The maximum penalty for assaulting a police officer in the execution of his duty is a fine of $10,000 or imprisonment for two years.
I think the penalty which was imposed was a severe one but not so severe as to be said to be manifestly excessive. It is not for me to substitute my opinion for that of the sentencing Magistrate unless I am satisfied that the exercise of the sentencing discretion has miscarried. I am not so satisfied.
It was contended that whether the sentence was manifestly excessive or not the sentence should have been suspended.
The Magistrate was entitled to refuse to find ‘good reason’ for suspending the sentence of imprisonment. The appellant’s antecedents and the circumstances in which the offence was committed justified the Magistrate requiring the appellant to serve part of the sentence of imprisonment. He was entitled to use the provisions of s 38(2a) of the Criminal Law (Sentencing) Act 1988.
In his sentencing remarks the Magistrate said:
“I mention these matters as these days it seems unfortunately to be necessary for this Court to elaborate on its knowledge of the Sentencing Act to what might be thought of in some circles as an excessive degree. However, in view of the terms of recent appeals I think it prudent to confirm, for the benefit of any appeal that I have read this Act and understand its provisions but have not chosen to reinforce or confirm what I thought was obvious.”
Clearly those remarks are made out of a sense of frustration which presumably has arisen from recent appeals and the Magistrate’s perception of his obligations when sentencing a convicted person.
Sentencing remarks are constructed and delivered primarily for the purpose of telling the convicted person why the particular sentence has been imposed. The content of the remarks will depend upon a number of factors: the seriousness of the offence, whether the offender admitted the offence; whether he or she is contrite; whether he or she has co-operated with any relevant authority; the basis of fact upon which the sentence rests i.e. the circumstances of the offence; whether any other offences are to be taken into account; the personal circumstances of the offender including his or her antecedents; any questions of general or personal deterrence; the effect upon the community of the particular offence or class of offence; the prospects of the offender’s rehabilitation; any special matters which require mentioning; the sentence; and the reasons why that sentence has been imposed.
Because a magistrate has to pass numerous sentences each day and because a magistrate is dealing with less serious offences, the sentencing remarks of a magistrate will ordinarily be far less fulsome than those of a Judge of the District Court or this Court.
Magistrates have the responsibility of delivering summary justice.
Once offenders in the Magistrates Court have pleaded guilty, or had their guilt established, they are usually anxious to have any necessary sentence imposed. Few of them go to gaol. Most of them are subject to a penalty which allows them to resume their normal lives immediately.
Magistrates do not have the time that the superior courts have to spend on sentencing remarks. Most of their sentences must be given ex tempore. Therefore they do not have time to reflect on their remarks. Often they will not mention matters in their remarks that if given time they would have mentioned. Often they will deal with matters by a general statement. For example, it would be common for magistrates to say that they had taken into account the personal circumstances of an offender without repeating those circumstances.
Of course, those who are obliged to serve a sentence of imprisonment, whether immediate or suspended, are entitled to be given adequate reason for their sentence. Moreover, it usually will be necessary for the magistrate to indicate why it is that he or she has not been able to find good reason to suspend a term of imprisonment.
In the end result a magistrate must give sufficient reasons to enable the offender to know why it was that the particular sentence was imposed.
The reasons should also be sufficient to allow any court of appeal to understand how the sentencing discretion was exercised.
The sentencing remarks must also satisfy a secondary purpose. In the ordinary course of events they must contain sufficient detail so as to enable a court of appeal to determine whether there has been a proper exercise of the sentencing discretion or, on the other hand, whether the sentencing discretion has miscarried.
There are many options available to a magistrate when sentencing an offender. They are all contained in the Criminal Law (Sentencing) Act. A magistrate with a busy list might use all of the options over a relatively short period.
However, a magistrate does not, in his or her sentencing remarks, have to indicate all of the options which are available to him or her in sentencing a particular person: Napper v Samuels (1972) 4 SASR 63 per Bray CJ at 68; R v Ciccone (1974) 7 SASR 110.
This Court could not expect busy magistrates to discuss all of the available options in sentencing any person. This Court should assume, when considering an appeal against sentence from a magistrate that the magistrate is entirely familiar with the Criminal Law (Sentencing) Act and the options available to him or her in sentencing a convicted person.
Whilst there might be some circumstances where it is necessary for a magistrate to indicate why a particular option has not been adopted it usually will not be necessary for a magistrate to identify all the options available under the Criminal Law (Sentencing) Act and to give reasons why each of those options have not been adopted.
The appeal against sentence should also be dismissed.
The orders will be:
1. Appeal against conviction dismissed.
2. Appeal against sentence dismissed.

[2003] SASC 149

27 May 2003