BEARE v Police - [2005] SASC 256

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BEARE v POLICE
Judgment of The Honourable Justice Vanstone
13 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence for threatening harm and two counts of damaging property - whether sentence manifestly excessive - eight months on remand - suspended sentence imposed - appeal allowed only to reduce term of bond.
Criminal Law Consolidation Act 1935 s19, s85; Criminal Law (Sentencing) Act 1988 s18A, s30, s38, referred to.
R v McKenna [1998] SASC S6964; R v Barci (1994) 76 A Crim R 103, considered.

BEARE v POLICE
[2005] SASC 256
Magistrates Appeal: Criminal

VANSTONE J: This is an appeal against a sentence imposed by a Magistrate following pleas of guilty by the appellant to one count of threatening to cause harm, contrary to s 19(2) of the Criminal Law Consolidation Act 1935, and two counts of damaging property, contrary to s 85(3) of that Act. The pleas were entered after negotiation, on what was to be the first day of the trial on the charges.
The Magistrate imposed a single term of imprisonment, utilising s 18A Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). From a starting point of imprisonment for 18 months, she allowed a 20% reduction on account of the appellant’s guilty pleas, leaving one year two months and 12 days. She then deducted eight months and 16 days for time already served on remand, leaving five months and 24 days. That was the head sentence imposed. That sentence was suspended upon the appellant entering into a good behaviour bond for a period of two years on various conditions. The Magistrate also ordered the appellant to pay compensation to the victims of the property damage charges, amounting to just under $1,900.
The appellant submits that the sentence is manifestly excessive. With one exception, the additional grounds of appeal amount to particulars of that complaint. I shall return to the exception a little later.
The circumstances of the offending were that on 12 August 2004 the appellant telephoned and then attended at the crash repair business premises of his brother-in-law, Mr Magias. The appellant was not on good terms with Mr Magias, nor with other members of his family at that time. The appellant had consumed a large quantity of liquor. The reason for his approaches was that he wished to enquire about borrowing equipment for repairing his car.
Upon being told by Mr Magias that his equipment was unsuitable, the appellant became enraged, reacting in a threatening and aggressive manner. There was a violent scuffle which continued outside in the grounds of the premises.When Mr Magias escaped and ran to the gate, the appellant picked up an oil drum and used it to cause damage to a motor vehicle on the premises. The appellant then entered the office area, throwing equipment and papers about, before leaving to pursue Mr Magias along the street. In the street he caused damage to another vehicle. He threatened the victim with these words, “Stan, I am going to kill you, boom”. When police arrived they had to use capsicum spray to subdue the appellant. The Magistrate described this conduct as disgraceful. In the earlier physical confrontation the appellant suffered a broken wrist, and injuries to his knee, jaw and face. A blow to his knee exacerbated a pre‑existing injury, which may now be permanent. I note in passing that although the threat uttered was to kill the victim, the charge laid and acknowledged was threatening to cause harm only.
On appeal, Mr Wickens, for the appellant, submitted that the starting point nominated by the Magistrate of 18 months imprisonment was too high, having regard to the fact that the threat was uttered long after the initial aggression by the appellant and at a time when he had been quite seriously injured. It was put that the head sentence failed to reflect those injuries to the appellant. It was further put that the sentence failed to adequately take into account that the appellant suffered a personal tragedy connected with the prosecution of this matter, in that a relative who was at the court to give evidence on his behalf, collapsed outside the courtroom and died two days later. That event has apparently had a marked impact on the appellant.
The appellant is 40 years of age. He has prior convictions for both threatening harm and property damage, and has spent time in prison for more serious offences.
The Magistrate said she took a very serious view of the course of offending, and justifiably so. She made particular reference in her remarks to the two circumstances pressed before me, namely the injuries sustained by the appellant and the tragedy of his relative’s death, which was seemingly connected with her attendance at court. Those matters were undoubtedly relevant circumstances: see R v McKenna [1998] SASC S6964; R v Barci (1994) 76 A Crim R 103. However, the weight to be afforded them was very much a matter for the sentencing court.
In the end of the question is, having regard to all the circumstances, was the sentence imposed manifestly excessive. In that regard it is appropriate to focus on the effective sentence, rather than the starting point. In my view an effective head sentence of just over 14 months for this course of offending by a man of the appellant’s age and antecedents cannot be said to be manifestly excessive even allowing for the appellant’s injuries and the effect on him of his relative’s misfortune.
Since the appellant had served a lengthy period on remand the Magistrate’s task was more complex than it otherwise might have been. Having determined that the appropriate sentence was of the order of one years and two months, she could have imposed such a head sentence and “backdated” it to the date of the appellant’s arrest, utilising s 30(2)(b) Sentencing Act. A non-parole period would then have to have been imposed. It is quite possible that that would have been something like, or perhaps a little more, than the eight months or so already served. Before the appellant could have been released, the Parole Board would have been required to set conditions. Assuming all that occurred the appellant might then have been on parole for a period of some five or six months. As seen, instead of that approach the Magistrate determined upon immediate release with a suspended sentence being imposed to represent the balance of the head sentence. That was a course technically open to her. That the Magistrate took that course implies that having regard to all the circumstances, including the time already spent on remand, she found “good reason” to suspend the sentence: s 38 Sentencing Act.
However, it has had a consequence which might have worked an injustice upon the appellant. That is this. Having served over eight months imprisonment in relation to these offences he now faces a bond term of two years associated with the sentence imposed of just under six months. That means he has suffered the deprivations of a long period in custody and now faces the pressures of that bond for a further two years. In my view the unfairness associated with that justifies interfering with the sentence imposed only to the extent of reducing the term of the bond from two years to six months. I note that where the Sentencing Act makes provision for partial suspension of sentences, it restricts the term of the bond to the period of suspended imprisonment: s 38(2a)(a) and (b). That section was not utilised here, but the policy underlying that restriction is that which causes me to interfere in this instance.
I return to the matter of the additional ground of appeal which related to allegations made by the prosecutor of previous offending. It was framed as follows:
The learned sentencing Magistrate erred by allowing the prosecutor to allege previous offences of which the appellant had not been convicted, over objection of defence counsel.
In his affidavit the police prosecutor acknowledged that he had made reference before the Magistrate to the appellant having been charged with additional offences against a family member and to the withdrawal of those charges. He said that was relevant to the effect of the threat made by the appellant upon the victim. There is no suggestion in her remarks that the Magistrate had any regard to that matter and for that reason the ground fails.
However, in my view the prosecutor should not have made such submissions. It seems to me that except in very unusual circumstances prosecutors should view and treat withdrawn charges as comparable to acquittals. Where prosecuting authorities have withdrawn charges, whether because there is no reasonable prospect of conviction or because a victim does not wish to have them proceed, then no further use should, as a general rule, be made of them.
I would allow the appeal only for the purpose of amending the term of the bond into which the appellant has entered from two years to six months.