Bell v Police No. Scgrg-98-1120 Judgment No. S6866

BELL v POLICE
[1998] SASC 6866

Magistrates Appeal

Perry J (Ex tempore)

The appellant appeals against the sentences imposed on him following a contested hearing in the Magistrates Court sitting at Elizabeth at which he was convicted of assault occasioning actual bodily harm, simple assault, behaving in a disorderly manner in a public place and resisting arrest.
On the charge of assault occasioning actual bodily harm the appellant was sentenced to 18 months imprisonment, backdated to the date upon which he was taken into custody, that is to say, 7 May 1998. On the simple assault charge he was sentenced to 4 months imprisonment to be served concurrently with the other sentence. On the charge of behaving in a disorderly manner in a public place he was convicted without penalty. On the remaining count of resisting arrest the sentence was one month's imprisonment cumulative on the other terms.
In the result the head sentence was 19 months, against which the learned sentencing magistrate set a non-parole period of 6 months.
It is from those penalties that the appeal is brought.
In his Notice of Appeal the appellant complains that the sentences were manifestly excessive and that the learned magistrate erred in failing to suspend the terms of imprisonment.
The appellant is a 19 year old man living with his parents. On the night in question, after consuming a considerable quantity of liquor, he became involved in a fracas at the South End Hotel in Gawler. An argument erupted between a number of people and a family group which included the appellant and members of another group who were the family of the cook at the hotel. The appellant began fighting with another young man who was a member of the other group. The victim of the assault occasioning actual bodily harm, a man named Mr Allan, was working at the hotel as a barman. He intervened in an endeavour to break up the fight. The appellant turned on him and attacked him with a billiard cue. He struck Mr Allan again and again over a period of several minutes at least. The blows were directed to Mr Allan's face and head.
The victim of the simple assault charge, a woman named Ms Mann, who was employed at the hotel as gaming manager but was off duty at the time, tried to pull the appellant away from Mr Allan. She described Mr Allan's face as totally covered in blood and there was bruising all over his face, particularly around his eyes. She received a split to her left eyebrow and subsequently, for her trouble, the appellant threw a billiard ball at her, hitting her in the middle of her chest and causing bruising and a lump.
Medical reports were tendered which indicate that Mr Allan was subsequently treated at the outpatients at Lyell McEwin hospital and subsequently at a doctor's clinic. The doctor observed abrasions and lacerations about the eyes, nose and left area consistent with heavy blows from a blunt object. He diagnosed severe periorbital haematomas and post concussion headaches with neck stiffness.
When seen later by an eye specialist, Mr Allan was observed with gross bruising and swelling of the upper and lower eyelids, as well as bruising over the bridge of his nose, associated with haemorrhages. He complained that the vision in his right eye was affected, and he also had double vision.
The conviction followed several days of hearing before the learned magistrate, at which the appellant was represented by counsel. When it came to sentencing the appellant, the learned sentencing magistrate obtained a pre-sentence report from a probation and parole officer, together with a psychiatric report from Dr O'Brien of the Forensic Mental Health Services. Dr O'Brien described the appellant as a quietly spoken young man who was fully co-operative. He did indicate, however, that he had on more than one occasion lapsed into violence after becoming intoxicated. There were no features of mental illness. Dr O'Brien concluded that the prognosis was good, and that he would probably benefit from what he described as a period of probationary supervision.
The pre-sentence report was likewise positive and favourable to the appellant. The appellant expressed regret to the author of the report. The appellant impressed the probation officer as presenting with a quiet and unassuming manner and was helpful when responding to questions. The officer remarks:
“He appears to have the support of his immediate family and has established a reasonably consistent employment history. He also has the offer of full-time employment upon his release from custody.”
The officer observes however, that the appellant appeared to lack insight into the dangers associated with drinking excessively.
The appellant had a previous conviction recorded in early 1997 in the Youth Court on a charge of hindering police. There were two other Youth Court convictions in the previous year, that is in 1996, one for a traffic offence and the other for indecent language. The appellant had never been committed to gaol.
During the course of his sentencing remarks the learned magistrate described the attack on Mr Allan as savage, frenzied and extremely nasty. He described the assault on Ms Mann as less serious, but noted that she had been hit over the heart region, which might have produced complications. He said that he felt obliged to impose what he described as a 'Very high head sentence' because of the severity of the attack on Mr Allan with the billiard cue which he went on to describe as “Nothing short of disgusting”.
Mr Gibbons, who appeared for the appellant, submitted that his client was not involved in starting the fracas. That does appear to be consistent with the evidence.
He criticised the learned magistrate for expatiating on the risk of heart complications. It is true that the magistrate described the possibility of cardiac arrhythmia arising, whereas there was no support in the evidence for that observation.
The learned magistrate also criticised the appellant for calling the major police witness a liar. However, the magistrate was entitled to have regard to the manner in which the appellant had conducted his defence. An accused person may conduct the defence in various ways, but if he or she levels criticism of the police officers, which is not at the end of the day accepted, this may be regarded as a circumstance of aggravation.
Ms David for the respondent quite properly described the attack as unprovoked, and drew attention to the very low non-parole period which was set. She submitted that the non-parole period adequately took account of the appellant's youth and the other mitigating circumstances. The maximum penalty for the assault occasioning actual bodily harm is five years and for the common assault two years.
I must say that my first impression of this case was that the sentence was severe. Furthermore, the favourable pre-sentence report and psychiatric report, coupled with the youth of the appellant and his virtual unblemished record raised a doubt in my mind that the learned sentencing magistrate had properly considered the option of suspending the sentence. Certainly a request was made that he suspend any sentence which he was otherwise disposed to impose, and it is clear from his sentencing remarks that he did give some consideration to that aspect of the matter.
It is axiomatic that a custodial term of imprisonment is a sentence of last resort. It is a sentence which one hesitates to impose upon a young first offender.
I think that the assault would have been worse if it had been committed by the appellant acting alone. But it seems to me that he was caught up in a fracas or melée which developed in the hotel. While this does not excuse his behaviour, it is easier to understand how he might have got carried away in that situation than if he had been acting other than in the company of others.
It appears that the appellant has not been on bail pending the appeal, with the result that he has been in custody for more than four months, that is since 7 May 1998. I cannot help taking that circumstance into account in determining the outcome of the appeal. I took time briefly to consider this matter as I find it delicately poised.
In all the circumstances I think it right to conclude that insufficient weight was given by the learned sentencing magistrate to the pre-sentence report, the psychiatric report and the appellant's youth. Notwithstanding the seriousness of the assault, particularly the assault on Mr Allan, I have reached the view that the failure to suspend the sentence is indicative of appealable error.
I allow the appeal for the purposes of ordering that the sentences under appeal be suspended upon the entry by the appellant into a bond in the sum of $1,000 for a period of two years to be under the supervision of a probation officer during that time and with the further condition that the appellant undergo such treatment for his alcohol problem as might be directed by the probation officer.
All other orders of the learned sentencing magistrate will remain in full force and effect.
Mr Bell, I don't know how much of that you follow, but what I'm prepared to do is to allow you to be released now if you enter into a bond for two years to be of good behaviour on the conditions which I have mentioned. Are you willing into enter into a bond to that effect?

PRISONER: Yes, your Honour.

HIS HONOUR: Do you understand that if you do so and if you subsequently within the period of two years, which will date from today, commit any offences whatsoever, you are liable to have to serve out the rest of the prison term that you have served four months or so of so far. Do you realise that?

PRISONER: Yes, your Honour.

HIS HONOUR: Do you understand the bond?

PRISONER: Yes
.
HIS HONOUR: I remind you that if you commit any offence at all over the two year period after you have signed it, you will not only be at risk of forfeiting the $1,000, but you will be liable to serve out the rest of the term of imprisonment. Do you understand that?

PRISONER: Yes, your Honour.

Bond acknowledged.

[1998] SASC 6866

21 September 1998