BILNEY v Police - [2004] SASC 356

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BILNEY v POLICE
Judgment of The Honourable Justice Besanko
9 November 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER - SENTENCING
Appeal against sentence – appellant convicted after pleading guilty of possession of liquor in contravention of a prohibition imposed by a regulation, refusing or failing without reasonable excuse to state his name and address when required by a member of the police force, disorderly behaviour, resist police and offensive language – where the Magistrate imposed one penalty for all five offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of one month's imprisonment suspended upon the appellant entering into a bond in the sum of $10 to be of good behaviour for a period of one year – whether the sentence imposed was manifestly excessive – whether the Magistrate erred in imposing one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 where one of the offences did not carry a penalty of imprisonment – appeal allowed – appellant re-sentenced – as to the offence of possession of liquor in contravention of a prohibition imposed by a regulation a conviction without penalty recorded – as to the other offences one penalty imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of one month's imprisonment suspended upon the appellant entering into a bond in the sum of $10 to be of good behaviour for a period of one year.
Magistrates Court Act 1991 s 42; Liquor Licensing Act 1997 s 131(1); Summary Offences Act 1953 s 74A, s 7(1), s 6(2); Criminal Law (Sentencing) Act 1988 s 18A, s 11, referred to.
Hermel v Police (2000) 76 SASR 336; R v Mathew [2001] SASC 390; Heatlie v SA Police (1993) 172 LSJS 94; Fiegert v Fauser (Mullighan J, 21 October 1992, unreported); Coulthard & Reinersten v Police [2003] SASC 125; Birch v Police [2003] SASC 354, considered.

BILNEY v POLICE
[2004] SASC 356
Magistrates Appeal

BESANKO J: This is an appeal against sentence brought pursuant to s 42 of the Magistrates Court Act 1991. The sentence was imposed by a Magistrate sitting at the Magistrates Court at Adelaide in the State of South Australia on 30^th August 2004. The sentence was imposed for the following offences:
1.On 1^st July 2004 at Adelaide in the said State in a public place, namely North Terrace, the appellant had possession of liquor in contravention of a prohibition imposed by a regulation pursuant to s 131(1) of the Liquor Licensing Act 1997.
2.On 1^st July 2004 at Adelaide in the said State, the appellant being a person reasonably suspected by Kym Hansen, a member of the police force, of having committed an offence, namely, possession of liquor in a dry zone, and having been required by such member of the police force to state his full name and address, refused or failed without reasonable excuse to comply with the requirement contrary to s 74A(3)(a) of the Summary Offences Act 1953.
3.On 1^st July 2004 at Adelaide in the said State, the appellant behaved in a disorderly manner in a public place, namely, North Terrace, contrary to s 7(1)(a) of the Summary Offences Act 1953.
4.On 1^st July 2004 at Adelaide in the said State, the appellant resisted Kym Hansen, a member of the police force, in the execution of his duty contrary to s 6(2) of the Summary Offences Act 1953.
5.On 2^nd July 2004 at Adelaide in the said State, the appellant used offensive language in a public place, namely Gouger Street, contrary to s 7(1)(c) of the Summary Offences Act 1953.
The appellant entered pleas of guilty in relation to the above offences on the first occasion they came before the court.
The maximum penalty for the first offence is a fine of $1,250. The maximum penalty for each of the second, third and fifth offences is a fine of $1,250 or imprisonment for three months. The maximum penalty for the fourth offence is a fine of $2,500 or imprisonment for six months.
The Magistrate recorded convictions in relation to each charge and he imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“CLSA”). He sentenced the appellant to one month’s imprisonment suspended upon him entering into a bond in the sum of $10 to be of good behaviour for a period of one year.
The circumstances surrounding the offending were that at about 4:00 pm on 1^st July 2004 the appellant was seen by police officers to be in possession of liquor in contravention of the Adelaide City Dry Zone. The appellant had a three quarter full water bottle containing a red liquid. He was approached by the police officers who attempted to speak to him as they believed the liquid was liquor. The appellant became enraged and started swearing and shouting. The appellant refused to speak with either of the police officers and either ignored their questions or loudly shouted at them to “fuck off”. The police officers repeatedly asked the appellant for his name and address, however, each time he responded by saying “fuck off”. The appellant was then cautioned that if he continued to act as he was he would be arrested. The appellant then stood within approximately 30 centimetres of Mr Kym Hansen, who was one of the police officers, with his fists clenched at his side, and again he shouted at him to “fuck off”. At this point, the police officers advised the appellant that he was under arrest and attempted to hold him by the upper arms. The appellant broke free and stood in a fighting stance facing the police officers. He was then restrained by the officers and the appellant kicked out at them and tensed his arms to prevent the police officers from placing handcuffs on him. The handcuffs were eventually applied, and the appellant was placed in a waiting cage car and taken to the City Watch House where he was charged. The water bottle was inspected by the police officers and was found to contain a liquid that smelt like port. At the time of the incident, there were approximately 30 people of various ages in the area and waiting at nearby bus stops. Most of these people were looking in the direction of the appellant and appeared to hear what he was saying.
At approximately 8:13 pm on 2^nd July 2004, police officers were speaking with a witness, Mr Russell Davies, on the northern side of Gouger Street, approximately 100 metres east of West Terrace about some traffic matters. At this time, the appellant walked past where the officers and Mr Davies were standing and said “what the fuck are you looking at”. The police officers warned the appellant at this time about using offensive language. The appellant started walking again and then stopped a little further up the footpath, turned to face the police officers and the witness and continued to swear, saying “I don’t give a fuck. What are you going to do, lock me up? This is my fucking land cunt so don’t tell me what to do.” The police officers then warned the appellant again about using offensive language, however, the appellant continued to swear at the police officers and Mr Davies using the words “fuck” and “cunt” repeatedly in sentences. At this time, there was a group of about 10 people on the first floor of a building next to where the police officers were standing with Mr Davies looking out of the window at the appellant and they appeared to hear what he was saying. The police officers finished speaking with the witness and then arrested the appellant for using offensive language. Mr Davies told the officers that he was offended by the appellant’s language.
The appellant is a 48 year old man of Aboriginal heritage.
He has a record for disorderly behaviour, offensive language and alcohol-related offences. He has also been convicted of offences involving hindering or resisting police.
There are two grounds of appeal. First, it is said that the Magistrate erred in that the sentence he imposed was manifestly excessive. Secondly, it is said that the Magistrate erred in imposing one penalty for all five offences when one of the offences, namely, the first offence, did not carry a penalty of imprisonment.
Counsel for the respondent concedes that the Magistrate erred in imposing one penalty with respect to all five offences. The first offence is an offence punishable by fine only and is not punishable by imprisonment. It cannot be one of the offences in respect of which a term of imprisonment is imposed even though the other offences are punishable by a term of imprisonment (Hermel v Police (2000) 76 SASR 336 per Duggan J at [7]; R v Mathew [2001] SASC 390 per Martin J at [4].
In those circumstances, it is necessary for me to sentence the appellant afresh. Both counsel said that this was an appropriate course rather than remitting the matter to the Magistrates Court.
The appellant submitted that in re-sentencing the appellant regard must be had to ss 10 and 11 of the CLSA. The appellant submitted that the five offences were nuisance offences, and that on both occasions, he was considerably intoxicated by alcohol and his behaviour was a reaction to police presence and not directed at members of the general public. The appellant submitted that he has very little criminal history. He submitted that a sentence of imprisonment of one month although suspended was manifestly excessive, and that the sentence of imprisonment was not justified by way of personal deterrence as was suggested by the Magistrate. The appellant submitted that the Magistrate failed to give him credit for his early guilty pleas. The Magistrate made very brief remarks on sentence. He expressly said that he took into account all that had been put to him. He did not specifically mention the appellant’s early pleas of guilty. The appellant submitted that the Magistrate gave undue weight to the appellant’s prior convictions. The appellant referred to s 11 of the CLSA and said that the only matter which might have justified the sentence of imprisonment was the fact that he had previously been convicted of an offence punishable by imprisonment. The appellant submitted that a sentence of imprisonment should only be imposed when all other sentencing options have been eliminated and that in this case a non custodial sentence was appropriate.
The respondent submitted that I should have regard to the fact that three of the offences carried a maximum penalty of imprisonment for three months and a fourth offence carried a maximum penalty of imprisonment for six months. The respondent pointed to the appellant’s prior convictions for offences of a similar nature. The respondent submitted that there was a need to ensure that any penalty imposed had a specific and a general deterrent effect.
The appellant is 48 years of age and at present he is unemployed. He is receiving unemployment benefits. He has worked as a labourer in the past. It was said that he was intoxicated at the time of the offences and that he had become intoxicated because of personal problems. It was said that the appellant has overcome a previous problem he had with alcohol.
I must give the appellant credit for his early pleas of guilty and I have considered carefully whether a sentence of imprisonment is appropriate having regard to the circumstances of the case and s 11 of the CLSA. I have also considered carefully the authorities to which I was referred including Heatlie v SA Police (1993) 172 LSJS 94; Fiegert v Fauser (Mullighan J, 21^st October 1992 unreported), Coulthard & Reinertsen v Police [2003] SASC 125; Birch v Police [2003] SASC 354. Most of the cases are distinguishable from the present either by reference to the nature of the offences involved or the prior record of the accused.
It seems to me that it is appropriate to impose one penalty in relation to the four offences for which a term of imprisonment is the maximum penalty. Furthermore, when regard is had to the appellant’s prior record and the fact that the offences he committed included the offence of resisting a police officer the imposition of a term of imprisonment suspended on the appellant entering into a good behaviour bond is appropriate. In my opinion, the appropriate period of imprisonment is one month. There should be a conviction without penalty in relation to the first offence.
I will make the following orders:
1. Appeal allowed.
2.As to the first offence listed above a conviction without penalty is recorded.
3.As to the other offences listed above, one penalty is imposed pursuant to s 18A of the CLSA being a sentence of one month’s imprisonment suspended upon the appellant entering into a bond in the sum of $10 to be of good behaviour for a period of one year.