BROOKS v Police - [2009] SASC 157

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BROOKS v POLICE
[2009] SASC 157
Reasons for Decision of The Honourable Justice Kelly (ex tempore)
2 June 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty to making a false report to a member of the police force and doing so knowingly - magistrate imposed a sentence of two months imprisonment suspended on account of appellant entering into a good behaviour bond for a period of eighteen months - whether sentence manifestly excessive - whether magistrate erred in taking into account circumstances of aggravation which were irrelevant and innaccurate.
Held: no error was demonstrated by magistrate - magistrate was entitled to take into account the prior history of the appellant including a prior false report of the same nature and circumstances of aggravation - sentence not manifestly excessive when having regard to personal and general deterrence and factors personal to the appellant which mitigated the offending.
Summary Offences Act 1935 (SA) s 62(1)(a)(i), referred to.

BROOKS v POLICE
[2009] SASC 157
Magistrates Appeal
KELLY J (ex tempore)

This is an appeal against a sentence imposed in the Mount Gambier Magistrates Court on 24 March 2009.
The appellant was convicted on her plea of guilty to making a false report to a member of the police force and doing so knowingly contrary to s 62(1)(a)(i) of the Summary Offences Act 1935 (SA).
The maximum penalty for this offence is two years imprisonment or a fine of $10000.
The learned magistrate recorded a conviction and imposed a penalty of two months imprisonment, which he suspended upon the appellant agreeing to enter into a bond in the sum of $500 to be of good behaviour for an eighteen month period.
The sentence took into account the appellant’s guilty plea and her ongoing rehabilitation as outlined in sentencing submissions before the magistrate by Ms Annells.
The appellant appeals the sentence on the basis that a sentence of two months imprisonment is manifestly excessive and that the learned magistrate erred by taking into account circumstances of aggravation which were both irrelevant and inaccurate.
The respondent, on the other hand, submitted it was open to the magistrate to impose a term of imprisonment, that the magistrate did not err in arriving at the ultimate sentence imposed and in fact exercised a degree of mercy.
The circumstances of aggravation that the appellant contends were wrongly relied on by the magistrate, arise out of the magistrate’s reasons commencing at [3], he said:
I cannot overlook though, the seriousness of this offence. It seems that Mr Bartlett, in desperation, attempted to hang himself.
The appellant contends that by effectively causally connecting the hanging attempt with the allegation of the false report by the appellant to the police the magistrate has made a material error.
The appellant is a twenty four year old woman. She has a history of traffic offences and a number of prior offences for dishonesty.
This offence occurred on 19 September 2008. The appellant reported to police that her former partner, Mr Bartlett, had attempted to gain entry into her house while she was there and had assaulted her by smashing a window when she was standing nearby. She also, on that occasion, reported that he had assaulted her previously.
Shortly after that report to the police, about a week later, Mr Bartlett was located by the police, arrested and bailed to attend court.
Later in the month of September 2008 the appellant telephoned the police and told them that she had made a false report. She also told the police that Mr Bartlett was still living with her and he was still her partner at the time she had made the false report.
Sentencing submissions before the magistrate revealed that the appellant had been in a violent relationship and that she had wished to end the relationship at the time she made these false reports.
She admitted that making the false report was the incorrect way for her to end the relationship. The relationship, in fact, did continue for some time, although as both counsel have pointed out both the parties seem to have problems of a mental nature and a history of instability. Eventually the relationship did end after Mr Bartlett tried to hang himself apparently in front of the appellant and her two year old daughter.
The court also heard evidence that the appellant had previously made a false report to police in relation to the same partner. I was informed during submissions this morning that the first report about Mr Bartlett was made in November 2007. The appellant had not been convicted of that matter at the time she re-offended. She was ultimately sentenced for the earlier offending in February 2009 in respect of which she was fined.
The magistrate obviously took that prior history into account when determining to impose the sentence of imprisonment. He was entitled to take that matter into account.
I have considered the impugned remark in the context of the sentencing remarks as a whole. Although on one interpretation, Mr Stokes’ submission might be quite correct, it seems to me that all the magistrate was endeavouring to do was to describe a historical fact that after the making of these false allegations, and in the course of the continuing relationship, there was an attempt by Mr Bartlett to hang himself.
I consider the magistrate was entitled to take into account the circumstances of Mr Bartlett’s life after the making of that false report and it seems to me, a material matter, whether or not it was one of the factors or just a minor factor; the fact is that in the course of the relationship and after the making of these false reports, Mr Bartlett did attempt to hang himself.
As the magistrate observed, making a false report is a very serious offence, even in the absence of an earlier conviction. It is a material circumstance of aggravation in this case that there had been an earlier prior false report by the appellant, albeit one in respect of which she had not yet been convicted.
Making false reports seriously undermines the foundations upon which our system of justice is built, that is, to efficiently and expeditiously administer a course of justice for genuine complainants.
Making false complaints also, in this particular case, showed a serious disregard for Mr Bartlett’s individual liberty and his rights and a complete disregard for the waste of police time and resources, which are very necessary in protecting the wider community including, as I said earlier, genuine complainants.
Accordingly, in my view, there was a need to impose a sentence which reflected both personal, and general deterrence.
In sentencing the appellant, the learned magistrate carefully considered the factors personal which mitigated the offending. It is obvious from his remarks that he took them into account. In my view, he imposed a sentence which is appropriate and well within the exercise of his discretion having regard to the two year maximum sentence for this offence.
The factors personal to the appellant, including the fact that she was in continued and progressive drug rehabilitation and her desire to focus on regaining access to her children were matters he quite properly took into account when determining the length of the sentence and later when determining to suspend it.
In all of the circumstances, I do not consider that a sentence of two months imprisonment can be said to be manifestly excessive. I remind myself it is not a question of what I would have done if I had been the sentencing magistrate. In my view, there has been no error of fact or law, even if there is a slight ambiguity in [3] of the magistrate’s remarks. However I do not consider that to be a material error which has infected the sentence.
In my view, the circumstances did call for a deterrent sentence, which in the circumstances could only have been a custodial sentence.
I am not sure that I would have imposed a sentence quite as high however, as I said earlier, that is not the test. In my view, it was within the magistrate’s discretion. I see no error, therefore the appeal is dismissed.