Bux v Police - [2009] SASC 352

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BUX v POLICE
[2009] SASC 352
Judgment of The Honourable Justice Gray
20 November 2009
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
Appeal against sentence - appellant and defendant pleaded guilty to one count of breach of bail and one count of affray - discount of 15% on account of pleas of guilty - one sentence of nine months’ imprisonment imposed to be commenced on termination of an earlier sentence of imprisonment - in respect of that sentence, non-parole period of 10 months had been fixed - Magistrate extended non-parole by four months on account of further term of imprisonment - whether sentence manifestly excessive - whether Magistrate failed to have regard to absence of prior offences of violence when sentencing - whether 15% discount for pleas of guilty manifestly inadequate - whether Magistrate failed to have regard to mitigatory effect of defendant’s aboriginality - whether Magistrate erred in finding victim suffered injuries - whether Magistrate erred in not accepting defendant's explanation as to cause of offending.
Held: appeal dismissed - sentence imposed by Magistrate appropriate - absence of prior offences of violence does not warrant leniency in sentencing in circumstances - 15% discount for pleas of guilty within discretion of Magistrate - no evidence before court regarding mitigatory effect of defendant's aboriginality - Magistrate made no finding as to any injury suffered by victim - explanation proffered by defendant no excuse for offending conduct.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Shannon (1979) 21 SASR 442; Veen v The Queen (No 2) (1988) 164 CLR 465; R v Martin [2009] SASC 26; R v Teague [2007] SASC 65; R v McNamara [2009] SASC 227; R v Tjami (2000) 77 SASR 514; R v Morgan (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Matheson, Perry & Nyland JJ, 21 January 1977), considered.

BUX v POLICE
[2009] SASC 352
Magistrates Appeal
GRAY J:
Introduction

On 27 August 2009 the defendant and appellant, Jamie Richard Bux, entered pleas of guilty to one count of breach of bail and one count of affray. Following sentencing submissions, the Chief Magistrate, utilising her powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA), imposed the one sentence of nine months imprisonment.
The Magistrate ordered that this sentence commence on the termination of an earlier sentence of imprisonment imposed on 20 May 2009 for the offences of driving a motor vehicle without consent and driving whilst disqualified. The sentence imposed on that occasion was for a period of one year, nine months and 26 days, backdated to commence on 1 May 2009. In respect of that sentence, a non-parole period of 10 months had been fixed. When sentencing, the Magistrate, having regard to the further term of imprisonment of nine months, extended the non-parole period by a further four months.
As a consequence, the defendant was to be imprisoned for a total period of two years, six months and 26 days, commencing on 1 May 2009. He is eligible for parole on 1 August 2010.
The defendant has appealed with respect to the sentence of nine months imprisonment and the four month extension of the non-parole period.
Background
The circumstances of the offending were that the defendant was involved in acts of unlawful violence toward an adult female at about 3:00am on 26 February 2009.
The defendant was seen to associate with the female victim in the vicinity of Skycity Casino, Adelaide. They both attempted to gain entry to the casino but were refused entry. Subsequently, the defendant and the victim attempted to procure a taxi but were apparently repeatedly refused service.
Following an altercation over a bottle of alcohol, the defendant threw the victim to the ground and repeatedly punched and kicked her about the head and back. The defendant then kicked the victim in the face causing her to lose consciousness. The defendant removed the victim’s top and dragged her toward the nearby tram stop. The apprehension report observes that the defendant’s conduct was such that a person of reasonable firmness present at the scene would have been in fear for their personal safety. It is relevant to note that the apprehension report also records that the defendant was too intoxicated to be spoken to in regard to the allegations in respect to the affray.
The defendant has a number of antecedents, including dishonesty offending and drug offending. He also appears to have at least two previous convictions for failing to comply with bail agreements. When sentencing, the Magistrate remarked:
You have prior convictions for failing to comply with a bail agreement and you are currently serving a sentence in relation to driving matters. Part of that sentence included a period of unexpired parole.
I am told that the reason why all this occurred was that you had been to the casino; you were intoxicated, which, of course, might be an explanation but could not in any way be an excuse for anything that happened; that you won a good deal of money; that you had missed your train; that you tried to flag down taxis; they refused to take you, perhaps because of the state of your intoxication, perhaps because of their concern about payment. You showed that you had the money to at least one of them. They still would not take you home. The woman who you had met who you are not able to identify and who had intended to share the taxi with you then snatched your wallet and it was in those circumstances that the violence occurred. I note that, notwithstanding the appearance of the police in the course of this incident, no complaint was made by you, to them, about any theft.
The offences, particularly the violent offence, is clearly serious and it clearly had a serious impact on the victim.
I give you credit for your pleas of guilty. In fact I give you a 15% discount for your pleas of guilty but in my view the appropriate and the only appropriate sentence is a sentence of imprisonment.
Giving you as much credit as I can and bearing in mind the need both for personal deterrence, in other words to send a message to you, and also general deterrence, the need to send a message to anybody else who might be minded to act in this appalling manner, I impose the following penalties.
There will be convictions recorded, one sentence of imprisonment, a sentence of imprisonment of 9 months cumulative on the sentence to which you are currently subject.
As for the non-parole period, I consider that it is appropriate to extend the non-parole period. These are quite different offences, including a violent offence and both offences require the appropriate penalty. In the circumstances I extend the non-parole period by a period of 4 months.
The Appeal
On appeal the defendant contended that the sentence of imprisonment was manifestly excessive and that the circumstances surrounding the offence should have caused the Magistrate to consider a lesser penalty. It was further submitted that the Magistrate erred in finding that a reduction in sentence of 15% was appropriate despite the defendant pleading guilty at the earliest opportunity. The defendant contended that the Magistrate erred in finding that the victim suffered injuries when no such suggestion was made and when there was no evidence that the victim required medical attention. The defendant further contended that the Magistrate erred in not accepting the defendant’s proffered explanation as to why the scuffle between he and the victim commenced. It was submitted that the Magistrate erred in failing to consider the Aboriginality of the defendant and in failing to place sufficient weight on the defendant’s lack of prior violent offences when sentencing.
Before coming to discuss the submission that the penalty was manifestly excessive, it is convenient to first deal with a number of the other complaints advanced on the appeal.
Reduction for Plea
It was contended on appeal that the reduction of 15% on account of the pleas of guilty was manifestly inadequate. It was argued that it is customary for a reduction of 25% to be made on account of an early plea. It was said that the primary consideration in the reduction in sentence on account of a plea of guilty is the timing of the plea, and in the circumstances the plea of guilty was entered at the earliest opportunity and warranted a reduction in sentence in the order of 25%. The Magistrate addressed this topic as follows:
I give you credit for your pleas of guilty. In fact I give you a 15% discount for your pleas of guilty but in my view the appropriate and the only appropriate sentence is a sentence of imprisonment.
It has long been recognised that a judge has a wide discretion with respect to a reduction on account of an early plea.[1] Although it is common for sentencing judges to make a reduction of 25% on account of an early plea, any weight to be given to a plea of guilty is a matter of discretion for the sentencing judge.[2] There is recent authority to suggest that a discount of 15% in circumstances such as those in the present case is not inappropriate.[3]
[1]    R v Shannon (1979) 21 SASR 442 at 446 (King CJ).
[2]    R v Shannon (1979) 21 SASR 442 at 446 (King CJ).
[3]    R v Martin [2009] SASC 26 at [29] (Kelly J, with whom Anderson & White JJ agreed); see also R v Teague [2007] SASC 65 (Perry J, with whom Gray & David JJ agreed).
An additional argument raised was that given the nine-month sentence, a reduction of 15% suggested that the Magistrate chose an elusive starting point for sentencing. Counsel contended that the reduction of 15% and the consequent sentence arrived at was mathematically illogical and suggested that there was no clear starting point for the exercise.
In my view, the Magistrate, when speaking of a reduction of 15% was referring to a reduction of that order, which would suggest a notional starting point of between 10 and 11 months. I do not consider that the approach adopted by the Magistrate is indicative of any material error.
At the time of the present offending, the defendant was on bail, granted by a Chief Magistrate on 17 February 2009. The terms of bail required the defendant to remain at his home between the hours of 9:00pm and 7:00am each day. On 26 February 2009, at or about 12:20am, police performed a curfew check at the defendant’s home address and determined that he was not present. He was located later that morning on North Terrace in the vicinity of Skycity Casino, at 3:10am. Video footage taken from about 3:00am that morning recorded the defendant’s attack on the female victim. In these circumstances it is relevant that the defendant had no apparent defence to the charges and was facing an overwhelming Police case. Particularly in light of the video footage, the defendant had no apparent basis to contest the charge.
A review of the attendance records in the Magistrates Court reveals that on 24 June 2009, the Court was informed that “the matter is currently contested”. The records further show that the pleas of guilty were not made until 27 August 2009, the date of sentencing. Counsel for the defendant contended that the reason the Court was informed that the matter was contested was that the file was provided to the defendant’s solicitors on that occasion and there had been no opportunity to seek instructions. However, the Court was not informed of this position. Rather, the Court was informed that the matter was contested. This was not correct.
It is not correct to say that that the pleas were made at the earliest opportunity. The defendant was made aware of the charge against him on 26 February 2009. The pleas of guilty were only entered on 27 August 2009. It is to be observed that in the face of an overwhelming Police case even a plea entered at the earliest opportunity would not carry the same weight as a plea entered in circumstances where a clear potential defence had been identified.[4]
[4] R v Martin [2009] SASC 26 where a discount of 10% was considered not inappropriate in light of the very strong Crown case where a finding of guilt was almost inevitable. See also R v Teague [2007] SASC 65, where the court in deciding that a discount in the order of approximately 12% was appropriate, commented that in such a case where a conviction is inevitable, little allowance could be made for the plea of guilty; see also R v Morgan (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Matheson, Perry & Nyland JJ, 21 January 1997) where Perry J observed that when the evidence pointing to the guilt of the defendant is overwhelming, very little discount can be allowed for a plea of guilty.
In these circumstances, it was open to the Magistrate to allow a reduction in the order of 15% on account of the pleas of guilty. In the circumstances as outlined, this was, in my view, an appropriate reduction.
Factual Misunderstandings
It was contended that the Magistrate erred in finding that the victim of the affray suffered injuries when there was no material before the Magistrate to justify that finding. A review of the sentencing remarks discloses that the Magistrate made no mention of any injury suffered by the victim. The Magistrate recorded that the victim had been attacked by the defendant and rendered unconscious and that this conduct had a serious impact on the victim. On the hearing of the appeal, counsel for the defendant clarified this contention, claiming that the Magistrate was in error when remarking that the attack had a serious impact on the victim, when no allegations of injury were made and the victim elected not to take the matter further when spoken to by the police. It was said that there was no evidence that any injuries were sustained and the victim was capable of walking freely from the incident.
The conduct of the defendant was such that he rendered the victim unconscious for some minutes. Irrespective of the lack of complaint to the police and the possibility of no lasting injury, such events involved a serious immediate impact on the victim. In my view, there is no substance to this complaint.
It was further contended that the Magistrate erred in rejecting an explanation as to why the attack on the female victim occurred. It was said that while trying to procure a taxi, the female victim snatched the defendant’s wallet and that it was in this circumstance that the violence occurred. The material before the Magistrate disclosed that the defendant had made no allegation to the police of the taking of his wallet. Counsel for the prosecution contended that had the snatching of the defendant’s wallet antagonised him to the extent claimed, the failure to make a complaint was significant. The Magistrate’s remarks suggest that she did have regard to the explanation provided by the defendant, but noted that no complaint was made at all about any theft.
In any event, even assuming there had been a snatching of the wallet, such conduct might provide an explanation but no excuse for the beating and kicking of the victim by the defendant. As earlier noted, the female victim was thrown to the ground, punched in the head, kicked in the back and head and then kicked in the face, causing her to fall backwards, limp and unconscious, remaining so for some minutes. The defendant then removed her top and dragged her toward the tram stop. In my view, there is no substance to this complaint.
Relevance of Criminal Antecedents
It was complained that the Magistrate failed to have regard to the absence of offences of violence when sentencing. Counsel conceded that the prior history of the defendant precluded any argument that the defendant was a person of good character. However, it was said that in light of the absence of prior violent offences, the conduct the subject of the charge should be considered as an uncharacteristic aberration.
In Veen (No 2),[5] members of the High Court treated the criminal history of the defendant as relevant to showing that the current offending before the Court was not out of character but a continuing attitude of disobedience before the law. Mason CJ, Brennan, Dawson and Toohey JJ observed:[6]
…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
[footnotes omitted]
[5] Veen v The Queen (No 2) (1988) 164 CLR 465.
[6] Veen v The Queen (No 2) (1988) 164 CLR 465 at 177 - 178.
The following observations made in McNamara[7] are also apposite:
…In my view it was wrong to give any credit for the lack of prior convictions for offences of violence. It is not consistent with principle to compartmentalise issues of character in this way. The fact is the respondent could not claim credit for prior good character. …
[7] R v McNamara [2009] SASC 227 at [31].
In my view, it would be inappropriate to allow leniency because of prior good character in the present case. The defendant’s antecedent report discloses serious dishonesty offending, including the offence of aggravated serious trespass leading to orders of imprisonment on several occasions, serious driving offences leading to a term of imprisonment and a number of breach of bail offences. The defendant’s conduct demonstrates a continuing attitude of disobedience to the law and to authority and cannot be characterised as an aberration.
Aboriginality
A further complaint advanced was that the Magistrate had failed to have regard to what was said to be the mitigatory effect of the defendant’s Aboriginality. It was said that the defendant’s personal details, and particularly the defendant’s use of petrol and aerosols, were not alluded to in the Magistrate’s sentencing remarks. It was contended that these matters were associated with the defendant’s Aboriginality and should be considered in the sentencing process.
Considerations of a defendant’s Aboriginality were discussed in Tjami[8] where Nyland J observed:
[8] R v Tjami (2000) 77 SASR 514 at [8] - [9].
In [Fernando], Wood J, of the Supreme Court of New South Wales, had the task of sentencing an Aboriginal man who had pleaded guilty to one count of malicious wounding with a knife. During submissions, counsel referred his Honour to numerous authorities, reports and papers which discussed the sentencing of Aboriginal offenders. Wood J gave a summary of the propositions emerging therefrom which I respectfully adopt (at 62):
The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.
The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."
The propositions listed by Wood J do not, nor do they purport to, alter the sentencing process which is to be applied to Aboriginal offenders. Rather, the propositions reaffirm that the same sentencing process should apply to all offenders. This does not, however, mean that sentences are simply applied rigidly. Sentencing is a flexible process and there are, therefore, many considerations of aggravation and mitigation which the court may and should take into account when reaching a decision as to an appropriate sentence. In carrying out this exercise, a sentencing judge needs to be sensitive to the fact that there are particular mitigating factors which might apply more readily to Aboriginal offenders. The matters set out by Wood J are therefore a useful guide to be borne in mind in such cases.
[emphasis added]
The observations of Nyland J are relevant and apposite to the within proceedings.

There was no evidence before the Court to support either the defendant’s history of petrol sniffing, or any associated diminution of capacity or capability that could relevantly be taken into account as a mitigatory factor. Furthermore, there was no evidence to suggest that the Magistrate did not keep in mind the Aboriginality of the defendant when assessing the appropriate sentence.
The defendant’s claim in this respect is without substance.
Manifestly Excessive
Finally, it was contended that the sentence was manifestly excessive. In my view, this contention should be rejected. The defendant’s breach of bail was a serious breach. He only had his liberty on bail subject to a clear nighttime curfew. His breach of that curfew on this occasion was deliberate and sustained. It is clear that he had no intention of complying with his terms of bail. This offence was committed against the background of a number of breach of bail offences. It is apparent that the defendant had no regard to his obligations. Had he attended to his bail terms, this offence of affray would not have occurred. The attack on his female victim was brutal. As the Magistrate observed, “the offences, particularly the violent offence, is clearly serious and it clearly had a serious impact on the victim”. In my view, the sentence imposed by the Magistrate was an entirely appropriate sentence.
Conclusion
This appeal is dismissed.