Carter v POLICE - [2011] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CARTER v POLICE
[2011] SASC 199
Judgment of The Honourable Justice Vanstone
30 November 2011
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - appellant pleaded guilty in the Magistrates Court to aggravated assault - appellant spat in the face of an ambulance officer while being placed in ambulance - she was sentenced to eight months imprisonment, suspended - whether magistrate failed to take into account the appellant's mental health at the time of the offending and her participation in a Magistrates Court Diversion Program.
Held: appeal dismissed.
Mental Health Act 1993 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 11, s 19C, s 10, referred to.

CARTER v POLICE
[2011] SASC 199
Magistrates Appeal

VANSTONE J: Sharon Deanne Carter appeals against the severity of a sentence of eight months imprisonment, suspended, imposed in the Magistrates Court for an offence of aggravated assault.
The appellant and another had been drinking and there was some sort of altercation. The appellant suffered a self inflicted injury. An ambulance was called and the two female officers were placing the appellant into the ambulance so that she might be taken to hospital. She spat into the face of one of them. There was a fear that the victim might have been infected with hepatitis C, but fortunately that was not the case. The maximum penalty for an assault, which is aggravated, is three years imprisonment.
Background
The offence occurred on 21 August 2009. The delay in its processing occurred because the appellant was referred into the Magistrates Court Diversion Program. The basis of her acceptance into that program was her diagnosis of post-traumatic stress disorder and polysubstance abuse. The sentencing magistrate was sitting in a division of the Court referred to on the Certificate of Record as the “Adelaide Mental Impairment Court”. He had before him reports of officers working within that program.
The appellant is 38 years of age. She has a lengthy history of appearances before the courts, including for offences of violence. At the time of the offence she was on parole after serving part of a sentence arising from driving offences, resisting arrest and a breached bond. Her unexpired balance of parole at that time was seven months and seventeen days. Very shortly before the offence she had completed a period of home detention prison.
In sentencing, the magistrate said that he had considered all sentencing options not involving imprisonment, but had reached the opinion imprisonment was the only appropriate sentence. He took a starting point of twelve months imprisonment and reduced it to eight months on account of the appellant’s early plea of guilty. It is to be noted that the appellant claimed that she had no recollection of the event. If so, she was necessarily acting on the strength of statements by the ambulance officers. In that light, the generous reduction she was given for the plea of guilty was justified. The magistrate found that there was good reason to suspend the sentence. That decision was taken despite the fact that the appellant had previously had the benefit of a number of suspended sentences. It would appear that good reason was found in the state of severe anxiety in which the appellant was at the time of the offence. In fact she was detained under the Mental Health Act 1993 (SA) for three days immediately following her arrival at hospital. She has a marked history of mental health issues. There were particular stressors in the period immediately prior to the offending, which included a recent miscarriage, the break up of her relationship and an attempt at suicide.
Arguments on the appeal
Counsel for the appellant conceded that the offence was a serious one and, in other circumstances, could properly attract a sentence of imprisonment. However, it was argued that the magistrate failed to give appropriate weight to the fact that the offence was born of the appellant’s anxiety and the level of emotional stress under which she was operating. Counsel also submitted that the magistrate gave insufficient weight to the fact that the appellant had completed a “Mental Health Diversion Program”, even if the final report as to the outcome was rather qualified. It was put that a penalty of imprisonment was not, in all the circumstances, warranted, particularly having regard to s 11 of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) which limits the circumstances in which imprisonment can be imposed, and that another lesser penalty would have adequately reflected the appellant’s culpability and circumstances.
Section 19C(1) and (2) of the Act give the court wide powers to deal leniently with an offender who has completed an intervention program and who fulfils other criteria. Section 10(5) of the Act allows the court to treat a defendant’s participation in such a program as a matter relevant to sentence. Section 10(6) renders irrelevant a failure to participate, or poor performance within a program.
As I mentioned, the appellant’s involvement in the intervention program was not wholly successful. It was said to be characterised by “varying levels of engagement” and progress was hampered by intermittent substance abuse. Overall, it was considered that the appellant had been “somewhat successful” in the completion of the program.
Analysis
In my view this was a difficult case. In arriving at a just sentence the magistrate had to balance a number of factors tending both ways. On the one hand the offence was a serious one committed by a person who had previously demonstrated a tendency to commit offences of violence. On the other, she had made some progress in the intervention program and was certainly, on the day of the offence, affected by significant stressors and in a heightened emotional state sufficient to require her detention.
I consider that the magistrate was justified in imposing a sentence of imprisonment. The offence was serious. Having regard to the appellant’s history of violent offending and her ongoing substance abuse (often associated with offending) a lesser penalty would not have been sufficient. I agree with the magistrate’s assessment that a substantial discount for the early plea was justified.
However, I cannot but observe that the starting point of 12 months was a severe one, even for a person with a long record and who was on parole. Nonetheless, the magistrate was in a good position to judge the degree of criminality involved – particularly having regard to the appellant’s heightened emotional and mental state – and to evaluate her response to the diversion program. I do not think it can be said that the magistrate was not alive to the challenges facing the appellant. He was, after all, sitting in the very branch of the court dealing with defendants having such problems.
The case is finely balanced, but, in the end, I am not persuaded that the sentencing process miscarried.
Conclusion
The appeal will be dismissed.