Bridges v Police - [2017] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
BRIDGES v POLICE
[2017] SASC 35
Judgment of The Honourable Justice Stanley
23 March 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY
Appeal against Magistrate's decision imprisoning the appellant for an assault contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).
Where the appellant was self-represented on a plea of guilty. Where the respondent acknowledged that the sentencing discretion had miscarried due to (a) the Magistrate's failure to inform the appellant of his right to dispute facts upon which he was sentenced; and (b) the failure of the Magistrate to obtain sufficient information as to the appellant's personal circumstances as relevant to the possible term of imprisonment.
Held: Appeal allowed. A House v The King error having occurred, the appellant must be resentenced [19].
Criminal Law Consolidation Act 1935 (SA) s 20(4); Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1988 (SA) s 10(1), referred to.
House v The King (1936) 55 CLR 499; Cooling v Steel (1971) 2 SASR 249, applied.
Police v Dorizzi (2002) 84 SASR 416; Police v Cadd (1997) 69 SASR 150; R v Wilton (1981) 28 SASR 362; Fewings v Police [2008] SASC 205; Police v Chilton (2014) 120 SASR 32; England v Police [2001] SASC 367, considered.

BRIDGES v POLICE
[2017] SASC 35
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal against sentence.
The appellant, who was unrepresented, pleaded guilty to the charge of assault cause harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). A magistrate imposed a sentence of imprisonment of four months and four weeks, suspended after serving two months imprisonment on entering into a bond to be of good behaviour for two years.
The offence involved an unprovoked attack at a workplace following threats made to the victim. The victim was known to the appellant.
The magistrate sentenced on the basis that the appellant kicked the victim in the face and proceeded to kick and stomp on the victim’s head for a period the victim estimated to be about three minutes. The victim experienced intense pain, although he was able to escape from the attack. There was evidence before the Court of the victim suffering lacerations and swelling to his face and head as well as some injuries to his neck.
The magistrate imposed the sentence of imprisonment against a background of an earlier conviction for assault for which a suspended sentence was imposed in March 2012 and a subsequent conviction for property damage later the same year.
There are five grounds of appeal. They are that the learned magistrate erred in:
1.not wholly suspending the sentence;
2.proceeding to sentence to an immediate term of imprisonment without adequately informing himself of the personal circumstances of the appellant;
3.not ordering a pre-sentence report in circumstances where the appellant was unrepresented and where an immediate term of imprisonment was being contemplated;
4.placing too much weight on the appellant’s prior conviction for assault; and
5.failing to inform the appellant that he was entitled to dispute facts which were contested.
Subsequent to the institution of the appeal the appellant was granted bail pending the hearing and determination of the appeal. He was released on bail on 6 February 2017.
During the hearing of sentencing submissions the appellant told the Court that in 2007 he was the victim of a home invasion and brutal assault committed by four men of whom the victim of this offending was the ringleader. The appellant told the magistrate that he still experiences symptoms as a result of the injuries he sustained in this attack.
During the hearing of submissions the police prosecutor made plain that he was submitting that the appropriate penalty for the offending for which the appellant fell to be sentenced was a term of immediate imprisonment. While there is some issue as to precisely what was and was not said during the course of submissions, it is clear that the magistrate advised the appellant that in the circumstances he should seek a remand to obtain legal advice and to produce documentary evidence of his claims concerning the previous assault on him by the victim of this offending. He did not do so.
When the appeal came on for hearing, counsel for the respondent acknowledged that having considered the transcript of the hearing before the magistrate, the sentencing discretion had miscarried because of the magistrate’s failure to inform the appellant he had the right to dispute the facts upon which he fell to be sentenced and in not obtaining sufficient information from the appellant of his personal circumstances relevant to a possible sentence of imprisonment.
The magistrate’s sentencing remarks
After describing the circumstances of the offence and the injuries suffered by the victim, the magistrate made the following sentencing remarks:[1]
[1] Remarks on Penalty at [4] – [14].
You claim that some years ago you were subjected to a brutal attack by four men, from which you still suffer injuries. You say Mr Willis was one of the men.
You were invited to obtain information in relation to this earlier offence and this alleged attack. You declined to do so. You said the attack occurred 12 years ago, and then you said it occurred in October 2007. Some aspects of your claims were inconsistent.
You have a history of violence. In March 2012 you were sentenced to two months imprisonment for assault. That sentence was suspended. You claim that the assault was only verbal. It is surprising if that is the case, that the sentence imposed was as high as it was. A sentence of imprisonment is a sentence of last resort.
In the same year you were convicted of property damage and ordered to pay compensation of $520, another apparent crime of anger.
Mr Bridges, as you claim to know, assaults have an ongoing effect on a victim. They also have an effect on those close to the victim, because to the extent that the victim’s behaviours and ability to cope with life and work are affected, then those upon which he depends are similarly affected. I am, I must confess, somewhat sceptical of what you put to me concerning your motivations for this attack. There is no objective support for it at all today.
For whatever reason your assault against Mr Willis, was sustained and violent. Apparently a witness attempted to intervene without success. You claim that statement to be untruthful.
However, despite lengthy advice from the Bench for you to seek a remand and get documentary material concerning your claims or legal advice, you have declined to do so. You are entitled to a 40 percent reduction for your early plea.
Having regard to your history of violence and the seriousness of this attack, the only penalty that the Court can reasonably impose is a period of imprisonment. The maximum penalty for an assault cause harm is three years. That of course, is for the most serious of assaults. I sentence you on the basis that your victim suffered no harm other than swelling and lacerations.
He was certainly able to walk away and hide and he was able to report the matter to police. Although scans were taken, at this stage I cannot sentence you on a basis other than as set out in the apprehension report and the photographs.
But for your plea the sentence I would impose would be eight months imprisonment. Having regard to your plea that will be reduced to four months and four weeks.
I have to consider whether that sentence should be suspended. You were given the benefit of a suspended sentence for assault in March 2012. This assault is more serious. It cannot be suspended, at least in its entirety.
The magistrate then proceeded to impose sentence.
Principles on appeal
This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA). It is an appeal by way of rehearing.[2] The appeal is governed by the principles in House v The King.[3]An appeal court will only interfere with a sentence if it is demonstrated the sentencing discretion miscarried, whether due to a mistake of fact or law, taking into account extraneous or irrelevant factors, or the failure to take into account some material consideration.[4]
[2] Police v Dorizzi [2002] SASC 356 at [27], (2002) 84 SASR 416 at 421; Police v Cadd (1997) 69 SASR 150 at 189.
[3] (1936) 55 CLR 499.
[4] House v The King (1936) 55 CLR 499 at 504 – 505; R v Wilton (1981) 28 SASR 362 at 363; Fewings v Police [2008] SASC 205 at [11].
In Police v Chilton[5] the Chief Justice, with whom David J agreed, made the following observations in relation to the exercise of the appellate jurisdiction relating to sentencing:[6]
Over familiarity with the decision in House v The King can at times obscure the strictness of the limited grounds for the appellate interference it prescribes. The grounds on which a discretion can be set aside are analogous to the grounds of judicial review. Neither the exercise of a judicial discretion, nor the making of an administrative decision, are vitiated by giving a relevant matter less or more weight than the judge before whom the decision is impugned would have given it. The Magistrates Court is a Court of Record.[7] Its judgments are final orders. They are not provisional opinions subject to the approval of this Court. The sentences imposed in the Magistrates Court can only be set aside for error in accordance with House v The King.
The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King.
[5] [2014] SASCFC 76, (2014) 120 SASR 32.
[6] [2014] SASCFC 76 at [18] – [19], (2014) 120 SASR 32 at 38.
[7] Magistrates Court Act 1991 (SA), s 5.
An unrepresented defendant
The principles applicable to the approach to be taken by a court where an unrepresented defendant is to be sentenced are well established. In Cooling v Steel[8]Wells J identified that the duty of a court in those circumstances is to ensure that the defendant is appraised of his rights and duties at all times and is vigilant to keep the proceedings free of error or misunderstanding. Wells J set out the following matters that should be observed:[9]
1.   Ensuring before a plea is taken that the defendant is informed of the offence with which he or she is charged;
2.   The defendant is made to appreciate that the plea is a matter for his or her own independent decision but that the defendant is entitled to legal advice and representation and to a reasonable adjournment to obtain the same;
3.   If the question of bail arises, the defendant is made aware of the right to apply for bail and the matters a court takes into account in relation to bail and the capacity to make submissions in support of such an application;
4.   If the matter is to proceed, the defendant should be informed of the seriousness of the charge and of the penalties that may be imposed, especially where the court has power to disqualify from holding or obtaining a driver’s licence, or order compensation, or direct forfeiture of property or order imprisonment;
5.   On a plea of guilty the defendant should be informed that he or she may put matters of mitigation by submission or on oath and that he or she may call witnesses or produce other relevant material;
6.   On a plea of guilty, before the prosecutor places the facts before the court, the defendant should be informed that he or she is entitled to dispute or comment on the facts, including prior convictions;
7.   If facts are disputed, the defendant should be given the opportunity to support his or her version by sworn evidence and/or calling witnesses, or, if appropriate, consideration should be given to treating the defendant’s contention as to the facts as a plea of “not guilty”;
8.   Special considerations apply to indigenous defendants and to persons with an inadequate grasp of the English language.
[8] (1971) 2 SASR 249.
[9] (1971) 2 SASR 249 at 250 – 252.
Consideration
As I have noted, the respondent concedes that the magistrate erred by not informing the appellant of his right to dispute facts that were contested. Upon consideration of the sentencing remarks it is clear the appellant disputed some of the circumstances surrounding the assault. The failure to offer the appellant the opportunity to dispute the facts which are contested is a failure to observe one of the principles identified in Cooling v Steel.
The respondent also concedes that the magistrate erred, in circumstances where the appellant was unrepresented, in failing to obtain information from him concerning his personal circumstances.
As was observed in England v Police[10] by Mullighan J, when an unrepresented defendant makes no submissions and imprisonment is a possibility, the magistrate should question the defendant to see if there is a basis for a more merciful approach to sentencing. That questioning must include matters concerning the personal character and antecedents[11] of the defendant and the impact upon the defendant of a sentence of imprisonment.
[10] [2001] SASC 367 at [19].
[11] See s 10(1)(l) Criminal Law (Sentencing) Act 1988 (SA).
In this case the failure of the magistrate to inform the appellant of his right to dispute or comment on the facts alleged by the prosecution, and the magistrate’s failure to ascertain the relevant personal circumstances of the appellant who was unrepresented in circumstances where a sentence of imprisonment was in contemplation, both individually and collectively, constitutes a miscarriage of the sentencing discretion. A House v The King error having occurred, the appellant must be resentenced.
Resentencing
The issue is whether this Court should resentence the appellant or the matter should be remitted for resentencing before a different magistrate.
At the hearing of the appeal counsel for the appellant and the respondent agreed that an adjournment was necessary to obtain additional materials relevant to the fresh exercise of the sentencing discretion and to explore whether certain facts relevant to resentencing could be agreed.
In these circumstances I am satisfied that the appropriate course is to remit the matter to another magistrate for resentencing.
Conclusion
I would allow the appeal. I would set aside the sentence imposed by the magistrate. I would remit the matter for resentencing by a different magistrate.