Berry v Police No. Scgrg-99-353 Judgment No. S201

[1999] SASC 201

BERRY v POLICE
[1999] SASC 201

Magistrates Appeal:  Criminal

1. PERRY J. (ex tempore) The appellant appeals against the sentences imposed upon him in the Magistrates Court sitting at Christies Beach following his plea of guilty to a charge that on the 28 November 1998 at Victor Harbor he assaulted a young man contrary to s39(1) of the Criminal Law Consolidation Act 1935.

2. At the same time, the appellant was charged with breach of a bond upon which a three month term of imprisonment for an earlier assault charge had been suspended, the period of the bond being two years.

3. The breach of the bond which was alleged was that although he had seen through the two years without further offending he had completed only 80 out of 120 hours of community service.

4. The magistrate, on taking the plea of guilty to the assault charge, imposed a sentence of eight months' imprisonment with respect to that, after intimating that if it were not for the plea of guilty a sentence of some 12 months might have been appropriate.

5. He declined to exercise his discretion to excuse the breach of the bond, and he activated the suspended term of imprisonment, but he reduced it to one month.

6. This meant that the overall head sentence became nine months.

7. The appellant advanced three grounds of appeal in the notice of appeal, namely, that the learned special magistrate ought to have excused the breach of bond and extended the time within which the community service was to be performed; that the term of imprisonment imposed with respect to the charge of assault was in all the circumstances manifestly excessive; and that in any event, the learned sentencing magistrate should have exercised his discretion to suspend the term of imprisonment which was ordered.

8. The appellant is a 30 year old man.  The circumstances of the assault charge are summarised in the affidavit of the police prosecutor, Mr Marsh, who appeared in the court below.  According to his affidavit, he put to the learned sentencing magistrate that the victim was 17 years of age.  He was walking along Hill Street at Victor Harbor at about 2.00 am on the morning in question.  He was with another young man called Damien Belle.  They both were talking loudly.

9. He was stopped by a group of males who stated that they were sick of people behaving like that, but they kept on walking, although Belle apparently kept yelling at the other group.

10. At some point Belle left the roadway to urinate.  The victim then kept walking and was approached by a person who turns out to be the appellant.  He said something which the victim could not recall, and then struck the victim in the right eye causing him to fall to the ground.  He got up and walked to his sister's place and suffered headaches and numbness as a result of the punch.

11. In the victim impact statement which was put before the learned sentencing magistrate, some more detail was given by the victim.  It appears that in fact he suffered a fractured cheek bone with swelling and grazes to his face, and was seen in hospital where he was X-rayed and a CT scan was performed, although it does not appear that he had any other active treatment.

12. He says that his face was disfigured for about a week and it took four days for the swelling to go down.  He lost two shifts of his work at a restaurant.

13. The witness Belle adds a little to what I have explained as to the immediate circumstances of the assault in that according to him, not only did the appellant punch the victim in the face, but after the latter had fallen to the ground the appellant then kicked the victim in the head with his right foot.  Belle then ran over to intervene and the appellant ran off.

14. Police attended soon afterwards and interviewed the appellant who was at the rear of his house, which was close to where the assault had occurred.

15. The appellant's account of the matter to the police officers was that he had heard a lot of yelling and swearing from the front of his house and went out to the front where he saw the victim and the witness Belle.  He told them to move on and be quiet, as his four-year-old son was asleep.  He said that the youths, that is Belle and the victim, kept walking along Hill Street away from his home but turned around at some stage and yelled abuse towards him.  He said that that caused him to lose his temper.  Over the last two hours other youths had also interfered with his peace and quiet.

16. Against that background, the appellant ran after the victim and Belle, and admits to having struck a blow to the victim's face and kicking him in the manner which had been indicated to the police by Belle.

17. In his sentencing remarks, the learned sentencing magistrate dealt first with the circumstances in which the breach of the community service order had been committed.  He observed that counsel for the appellant before him had explained that it was not completed because the appellant had moved to Perth with his wife and he did not get around to completing the community service after he had returned.  It appears from the affidavit of his then counsel, Mr Bartel, that in fact the explanation given was that he had forgotten about the balance of the community service which he was obliged to perform.

18. The learned sentencing magistrate noted that the appellant had made no effort to contact the department with respect to completing the outstanding hours of community service.  He said further:

    “Before I can excuse that breach of the condition I must be able to fined either the breach was trivial or there is a proper ground upon which to excuse the breach.  I simply cannot find a proper ground for your failure to comply with that condition of the bond and I am not prepared to say it is a trivial breach.”

He added:

“There are far too many people in the Christies Beach and also the Victor Harbor area who think if orders for community service are made they can decide if and when they perform the community service.  That situation will not be allowed to continue.”

1. In his most helpful address, Mr Barnett submitted that although the learned sentencing magistrate had identified the correct test, in that he had noted that it was incumbent upon him to find either that the breach was trivial or that there was a proper ground on which to excuse the breach, he erred in the following observation in that he said he could not find a proper ground “for your failure to comply with that condition of the bond”.

2. Mr Barnett referred to the provisions of s58(3) of the Criminal Law (Sentencing) Act 1988 which give rise to the discretion to excuse a failure to comply with a condition of the bond, and to the well-known authority of this Court R v Buckman,[1] and more particularly the judgment of King CJ, as he then was, in that case.  His Honour there observed:[2]

   “I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it.  I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue.  The notion is that of the failure being excused from being the catalyst of the activation of the sentence.”

   [1] (1987) 47 SASR 303.

   [2] Ibid at 304.

3. Applying those remarks to the circumstances of this case, Mr Barnett suggested what the magistrate should have done is to weigh up the circumstances of the breach against the consequences of the activation of the sentence.  He submitted that the learned sentencing magistrate had erred in approaching the matter on the basis that his task was simply to look to see whether there was a proper ground to explain the failure to comply with the condition of the bond.

4. I think that the point is well taken.  In my opinion, the magistrate did err in expressing his task in the way in which he did.

5. It follows that I must exercise the discretion afresh.  The fact remains, however, that in revisiting that aspect of the matter, I find it difficult, even applying the section in the light of the observations of King CJ, to excuse the breach entirely.  I say that because weight must, nonetheless, be given to the observations by the learned magistrate as to the prevalence of the incidence of failures amongst persons in the area in which he was sitting to comply with orders for community service.

6. It seems to me that Mr Barnett is right in saying that there is a distinction between a breach of condition which is constituted by the commission of another offence and a failure of this kind, which was with respect to the performance of community service, the non-performance of which is not an offence.   Nonetheless, the integrity of the sentencing process must be preserved.  That integrity is threatened if a breach of a condition, even though the condition relates only to the performance of community service, is treated too lightly.

7. In the course of his submissions, Mr Barnett referred to R v Harvey, a decision of Nyland J,[3] where Her Honour dealt with the consequences of the failure to perform a community service order.  In that case, she extended the time within which the community service might be performed.  There, however, as was pointed out by Ms Murphy, who appeared for the respondent, the defendant kept in touch with the department and gave explanations for his failure.  Here, the plain fact of the matter is that the appellant did absolutely nothing about his obligation to perform the remaining 40 hours of community service.

   [3]    Nyland J, 27 March 1996 (unreported) judgment No S5519.

8. In my opinion, exercising the discretion afresh, and for the reasons which I have given, I do not think that this is a case where there were proper grounds made out upon which the failure should be excused within the meaning of s58(3) of the Criminal Law (Sentencing) Act 1998.  But, in my opinion, it is right that the term of the activated suspended sentence, that is, the term of three months should be reduced to one month.  So that I would not interfere with that part of the sentence pronounced by the learned sentencing magistrate, albeit for different reasons.

9. As to the assault, I have had the benefit of an explanation in Mr Bartel's affidavit of what was put to the learned sentencing magistrate in that regard.  The learned magistrate was urged to take account of the fact that the appellant was 30 years of age and lives with his wife and their four year old son and his wife's two other children in a rented house in Hill Street, Mount Gambier.  It appears that he is the principle carer for the four year old, so as to enable his wife to work part-time.

10. Hill Street is a thoroughfare for people walking home from the local hotels and apparently there is a good deal of drunken and noisy behaviour on the part of patrons leaving the hotels.

11. Mr Bartel confirmed in his submissions to the magistrate that there had been an earlier incident that night.  He gave further details.  Apparently, during the course of that incident, some stones were thrown on to the roof of the appellant's house which had terrified his children.

12. Despite those matters, it cannot be seriously contended that the assault was other than serious.  An important matter to bear in mind was that this was the appellant's second conviction for assault.  Furthermore, the earlier assault which had resulted in a suspended sentence apparently warranted a three months sentence of imprisonment.

13. The maximum penalty for a simple assault of this kind is two years imprisonment.  In reaching the sentence of eight months, the learned sentencing magistrate took as a starting point a sentence of 12 months imprisonment, which he reduced to eight months on account of the appellant's plea of guilty.

14. I have carefully considered this aspect of the matter.  I have reached the conclusion that the learned sentencing magistrate failed to allow for the degree of provocation to which the appellant had been subjected on the night in question.  Although there is no excuse for the appellant leaving his house and pursuing the victim down the street, and although the immediate circumstances of the assault were serious, in all the circumstances I consider that the sentence of eight months imprisonment with respect to the assault charge was too high, to a degree which would justify interference by this Court.

15. In my opinion, a proper sentence to be imposed with respect to the assault charge allowing for the plea of guilty and other mitigating circumstances is five months.

16. This means that, allowing for the one month reduced activated sentence of imprisonment on the earlier assault charge, the total head sentence becomes six months.

17. I would allow the appeal for the purpose of reducing the sentence of imprisonment to be served by the appellant to six calendar months.  I so order.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1. (1987) 47 SASR 303.

2. Ibid at 304.

3. Nyland J, 27 March 1996 (unreported) judgment No S5519.