BLUM v Police

[2016] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

BLUM v POLICE

[2016] SASC 52

Judgment of The Honourable Justice Stanley

20 April 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES

This is an appeal against sentence. The appellant was sentenced to a term of seven months and 14 days imprisonment for two counts of aggravated assault against a domestic partner contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) and one count of failure to comply with a term or condition of a bail agreement contrary to s 17 of the Bail Act 1985 (SA). Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) the sentencing magistrate imposed a sentence of seven months imprisonment in respect of the two counts of aggravated assault and a term of 14 days imprisonment for the offence of breach bail. Before the magistrate the appellant pleaded guilty to these offences. The magistrate discounted the sentences by 30 per cent pursuant to s 10B of the Criminal Law (Sentencing) Act 1988 (SA). The magistrate was not satisfied that good reason existed to suspend the sentence imposed.

The sole ground of appeal is that the sentence is manifestly excessive.  Subsumed within that ground is a complaint that the magistrate erred in failing to suspend the sentence in whole or in part.

Held per Stanley J (dismissing the appeal):

1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [12]).

2.  No error has been demonstrated in the approach taken by the magistrate in declining to find the existence of good reason to suspend the sentence imposed either in whole or in part (at [20]).

Criminal Law (Sentencing) Act 1935 (SA) s 20(3); Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10B, s 38, referred to.
Papdopoulos v Police [2008] SASC 165, distinguished.
R v Jongewaard (2009) 266 LSJS 283; Singh v Police [2013] SASC 155; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; The Queen v Morse (1979) 23 SASR 98; R v McPartland and Polkinghorne (2014) 120 SASR 69; Hili v The Queen (2010) 242 CLR 520; Wessling v Police (2004) 88 SASR 57; R v Wacyk (1996) 66 SASR 530; R v Lutze (2014) 121 SASR 144, considered.

BLUM v POLICE
[2016] SASC 52

Magistrates Appeal

STANLEY J:

Introduction

1. This is an appeal against sentence. The appellant was sentenced to a term of seven months and 14 days imprisonment for two counts of aggravated assault against a domestic partner contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of failure to comply with a term or condition of a bail agreement contrary to s 17 of the Bail Act 1985 (SA) (the Bail Act).

2. Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) the sentencing magistrate imposed a sentence of seven months imprisonment in respect of the two counts of aggravated assault and a term of 14 days imprisonment for the offence of breach bail.

3. Before the magistrate the appellant pleaded guilty to these offences. The magistrate discounted the sentences he would otherwise have imposed for this offending by 30 per cent pursuant to s 10B of the Sentencing Act.

4. The magistrate was not satisfied that good reason existed to suspend the sentence imposed. 

5. The sole ground of appeal is that the sentence is manifestly excessive.  Subsumed within that ground is a complaint that the magistrate erred in failing to suspend the sentence in whole or in part.

   Circumstances of the offending

6. This was an assault on the appellant’s domestic partner.  Late on the night of 13 September 2015 the appellant pushed the victim to the floor of the house they were sharing.  He sat on her striking her left leg with his knee, causing bruising.  The following morning, 14 September 2015, the appellant again assaulted the victim by grabbing her hair and biting her cheek.  She was asleep on the couch when the appellant verbally abused her before throwing flour over her, seizing her blanket and pushing it into her face.  The victim moved away from the appellant.  He came from behind her and pulled her hair.  He then pushed her in the face then pulled her hair and bit her on the cheek.  He again placed his hand in her face and pushed her head backwards.  When police attended later that morning the bite marks were clearly visible. 

7. The appellant was charged with aggravated assault on 13 September 2015 and released on bail on 16 September 2016.  It was a condition of his bail that he not consume illicit drugs.  On 7 October 2015 he returned a positive urine test for cannabis and methylamphetamine. 

   Appellant’s personal circumstances

8. The appellant is 32 years of age.  He was raised in the Murray Bridge area.  He left school after completing year nine.  He has worked as a farmhand and in hotels.  He is the father of two young children from a previous relationship.  He has supported them financially in the past but has not been in employment for sometime while he awaited the outcome of these proceedings.  His current partner is pregnant with his child.  He has been a regular user of marijuana since he was a teenager and he was kicked out of home by his stepfather.  Relevantly, in July 2012, he was dealt with by the Magistrates Court on two separate occasions.  First, he appeared on a charge of assault and breach of bail.  He was released without a conviction being recorded and no other penalty was imposed.  Later the same month he appeared before the Magistrates Court on charges of assault and affray.  A sentence of four months imprisonment was imposed but suspended upon him entering into a bond to be of good behaviour for a period of two years. 

   Magistrate’s sentencing remarks

9. After setting out the circumstances of the appellant’s offending and his personal circumstances the magistrate said:[1]

   As for the assaults in September it was conceded that it was appalling treatment of his partner and that a period of imprisonment was clearly the only appropriate penalty.  The thrust of counsel’s submissions were pitched at trying to convince the court that good reason exists to suspend any such period of imprisonment.

   Counsel attempted to put the offending into the context of a five year difficult relationship between the defendant and the victim.  It was described as a tumultuous relationship.  It was submitted that she had her own health issues and at times was non-compliant with her medication and that would make her behaviour somewhat unpredictable and it was very difficult for the defendant to cope with such behaviour.  It was mentioned that about a week after this incident the victim herself needed to be detained pursuant to the provisions of the Mental Health Act.  There has been no ongoing contact with her.  He has been bail compliant in that regard and I also note to his credit that an Intervention Order was confirmed on 18 January.  That is significant because it is consistent with him considering the relationship now to be over and it provides the victim with some on-going protection.

   I was told that after his arrest he spent four days in custody in G-Division which had a salutary effect on him. 

   [1]    Sentencing remarks at [9] – [11].

10. The magistrate recognised the impact any immediate period of imprisonment would have, not just on the appellant, but also on those close to him and those who are dependent on him.  He went on to say:[2]

    Counsel summarised by submitting that good reason exists to suspend given the impact on others, the four days he spent in custody being a salutary experience for him, his willingness to comply with supervision, his good employment record and the prospects of him gaining employment should he remain in the community and the fact that he was prepared to agree to the Intervention Order being confirmed.

    As I say, I revoked his bail and I have taken sometime to reflect on his overall circumstances.  I note all my sentencing options under the Criminal Law Sentencing Act. I am firmly of the view that the only appropriate penalty for his offending is a term of imprisonment.

    Dealing with the September offending, my starting point on a s 18A basis would be a period of ten months imprisonment but I would reduce that to seven months imprisonment to reflect his guilty pleas.

    As for the breach of bail, it is a positive urine test.  He may well not have been coping terribly well at the time but it was a blatant breach of serious bail conditions.  Again I am of the view a period of imprisonment is appropriate.  My starting point would be perhaps something in the vicinity of four weeks or so.  He has pleaded guilty and I also need to give him credit for the four days that he has spent in custody.  So what might have otherwise been a month imprisonment on that matter I reduce to 14 days imprisonment.  That 14 days is to be cumulative to the seven months.  So the sentence I impose is a period of seven months and 14 days.

    I turn to the issue of suspension.  That involves me revisiting all of the circumstances of this matter not just relating to his offending behaviour but also his personal circumstances.  I have considered all of those matters.  Notwithstanding everything that has been said upon the behalf of the defendant, I am firmly of the view that his offending, particularly in September, is simply too serious to justify suspension of any period of imprisonment.  I am not satisfied good reason exists to suspend and I decline to do so. 

    [2]    Sentencing remarks at [14] – [18].

    Approach on appeal

11. The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[3] where Doyle CJ said:[4]

    The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence.  This Court does not substitute its opinion as to an appropriate sentence.  The Court will intervene only if error is established.  As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:

    As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as “manifest inadequacy”.

    [3] [2009] SASC 346, (2009) 266 LSJS 283.

    [4] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288 – 289.

12. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence.  Only if there is an error of the kind described in House v The King[5] does the appeal court have the power to quash the sentence passed below.[6]  As was said in R v Kreutzer[7] by Kourakis CJ,[8] if the error identified by the Full Court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed.  If the error identified by the Full Court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable.  On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed.  In such a case, it will dismiss the appeal.

    [5] [1936] HCA 40, (1936) 55 CLR 499 at 504 - 505.

    [6]    Singh v Police [2013] SASC 155 at [33].

    [7] [2013] SASCFC 130, (2013) 118 SASR 211.

    [8] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215.

    Manifestly excessive?

13. In The Queen v Morse[9] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive.  He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[10]

    [9] (1979) 23 SASR 98.

    [10] (1979) 23 SASR 98 at 99.

14. To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing Judge.[11]In Hili v The Queen[12] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[13]

    … appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”.  Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.

    [Citations omitted].

    [11]   R v McPartland and Polkinghorne [2014] SASCFC 84 at [15], (2014) 120 SASR 69 at 77 – 78.

    [12] [2010] HCA 45, (2010) 242 CLR 520.

    [13] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538 – 539.

    Suspended sentence

15. The decision whether to suspend a term of imprisonment is governed by s 38 of the Sentencing Act. That section relevantly provides:

    38—Suspension of imprisonment on defendant entering into bond

    (1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

    (a)     to be of good behaviour; and

    (b)     to comply with the other conditions (if any) of the bond.

    (2)A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced—

    (a)     to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or

    (b)     as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or

    (c)     as an adult for a serious and organised crime offence or specified offence against police; or

    (d)     as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.

    (2a)Despite subsection (2)(a), if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 1 year, the sentencing court may, by order—

    (a)     direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and

    (b)     suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.

    (2b)Despite subsection (2)(b), if a defendant is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence, the sentencing court may, by order—

    (a)     direct that the defendant serve a specified period of the imprisonment in prison (which, if a non-parole period has been fixed in respect of the defendant, must be a period that is one-fifth of the non-parole period fixed); and

    (b)     suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.

16. Section 38 requires the court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentence.[14]  The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[15]  It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[16]  The decision to suspend must be made solely on the facts and circumstances of a particular case.

    [14]   Wessling v Police [2004] SASC 51 at [27], (2004) 88 SASR 57 at [63].

    [15]   R v Wacyk [1996] SASC 5622, (1996) 66 SASR 530 at 535.

    [16]   R v Wacyk [1996] SASC 5622, (1996) 66 SASR 530 at 535.

    Consideration

17. The maximum penalty for an aggravated offence of assault is imprisonment for three years.  Accordingly, the starting point of 10 months is less than 28 per cent of the maximum penalty for one count of that offence.  The appellant conceded that the term of imprisonment imposed for the two counts of aggravated assault could not be considered to be manifestly excessive.  That concession was properly made.  While the offending in this case was not of the most serious kind of domestic violence which the courts see, such offending is innately serious and far too prevalent in the community.  Further, it is the case that the appellant was being sentenced for two counts of aggravated assault, which, while only ten hours apart still represent separate courses of criminal conduct.  Moreover, the offences were committed in the victim’s place of residence.  A place where she particularly is entitled to feel safe.  Such offences, in all but the most exceptional of cases, require that the courts impose sentences which reflect the need for both personal and general deterrence.  Given the appellant’s previous history of violent offending and the lenience afforded him in the past, I consider that the term of imprisonment imposed was within the available range of sentences for offending of this nature.  The courts must impose sentences which afford protection to vulnerable and trusting partners who could legitimately expect the offender would protect them from violence, not inflict it. 

1. Likewise, the appellant concedes that the sentence imposed of 14 days imprisonment for the breach of bail, to be served cumulatively upon the sentence imposed for the two counts of aggravated assault, could not be considered manifestly excessive.  Again this concession was properly made.

2. The appellant’s real complaint is the failure to suspend the sentence.  The appellant submits that the magistrate erred in failing to find good reason existed to suspend some or all of the sentence imposed by reason of his personal circumstances and because of the public interest in the appellant’s rehabilitation. 

3. In my view no error has been demonstrated in the approach taken by the magistrate in declining to find the existence of good reason to suspend the sentence imposed either in whole or in part.   The magistrate considered whether good reason existed to suspend the sentence.  While the magistrate did not expressly refer to suspension of part of the sentence, I am satisfied that the magistrate, in considering this issue, understood that the power reposed in the court to suspend a sentence of imprisonment if good reason to do so is found to exist, extended to suspending part only of that sentence.  The magistrate said that he was firmly of the view that the appellant’s offending was simply too serious to justify suspension of “any period of imprisonment”.[17]  Whether good reason exists involves an evaluative assessment.  It is a discretionary judgment.[18]  The magistrate had regard to the relevant considerations in declining to find good reason existed to suspend the sentence.  The magistrate plainly had regard to the appellant’s personal circumstances.[19]  In relation to the public interest in the appellant’s rehabilitation, there was little that could be said in favour of the appellant to persuade the magistrate that his prospects for rehabilitation were favourable.  He had previously received the benefit of lenience from the court in relation to violent offending.  That appears to have been to no avail.  The appellant cited the approach taken by David J in Papadopoulos v Police.[20]That case is clearly distinguishable.  The court allowed an appeal against a decision of a magistrate who declined to suspend a term of imprisonment where the magistrate had failed to have regard to the lack of prior criminal history and a relevant feature of the appellant’s personal circumstances, namely, his good work record.  That is far from this case.  In any event, a failure to give adequate weight to a relevant consideration does not disclose error.[21]  The magistrate did not have regard to irrelevant considerations.  There is no patent error demonstrated.  Neither do I consider there is any latent error.  I do not consider that the failure to suspend was obviously so unreasonable or plainly unjust that the decision could only be made erroneously.  This was serious offending against a background of earlier offending.  In the exercise of its appellate function, this Court must give due deference to the sentencing discretion reposed in the magistrate.  It is not a question of whether I would have reached a different decision but whether the exercise of the sentencing discretion is infected by error.  In my view it was not. 

   [17] Sentencing remarks [18].

   [18]   Brookes v Police [2014] SASC 22 at [9].

   [19]   Sentencing remarks [12] – [13]. 

   [20] [2008] SASC 165.

   [21]   R v Lutze [2014] SASCFC 134 at [47], (2014) 121 SASR 144 at 154.

   Conclusion

4. I would dismiss the appeal.