Christopher Jon Prime v Bryan Keith Morden No. SCGRG 93/2378 Judgment No. 4395 Number of Pages 8 Criminal Law Sentence
[1994] SASC 4395
•21 January 1994
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J
CWDS
Criminal law - sentence - appeal against sentence - appellant pleaded guilty to two counts of assault, two counts of property damage, and contravention of a summary protection order - sentences totalling 23 weeks' imprisonment - whether manifestly excessive - whether sentences should have been suspended - sentence not manifestly excessive - appellant to be regarded as a first offender - community interests best served by the rehabilitation of the appellant - appeal allowed - sentence suspended and community service ordered. Vartsokas v zanker (1989) 152 LSJS 186, applied.
HRNG ADELAIDE, 21 January 1994 #DATE 21:1:1994
Counsel for appellant: Mr S Ey
Solicitors for appellant: Mangan Ey and Associates
Counsel for respondent: Mr S Gupta
Solicitors for respondent: Crown Solicitor
ORDER
Appeal allowed.
JUDGE1 DEBELLE J This is an appeal against sentence. On 12 November, 1993 in the Magistrate's Court at Christies Beach the appellant pleaded guilty and was convicted of five offences. The magistrate hearing the matter imposed a separate penalty in respect of each offence. The offences and the penalties ordered in respect of each are as follows:
1. That he assaulted Elizabeth Jane Miller contrary to s.39
of the Criminal Law Consolidation Act, 1935 ("the Act").
For this offence the appellant was sentenced to imprisonment
for 21 days.
2. That without lawful authority he damaged a motor
vehicle, the property of Elizabeth Jane Miller, contrary to
s.85 of the Act. For this offence the appellant was
sentenced to two months' imprisonment cumulative upon the
sentence ordered in respect of count 1.
3. That he assaulted Gladys Violet Chandler, contrary to
s.39 of the Act. For this offence he was sentenced to 28
days' imprisonment cumulative upon the sentence in respect
of count 2.
4. That he contravened a summary protection order contrary
to s.100(a) of the Summary Procedure Act, 1921. For this
offence he was sentenced to two months' imprisonment
cumulative upon the sentence ordered in respect of count 3.
5. That without lawful authority he damaged a fence, a
window and an air conditioner, the property of Elizabeth
Jane Miller contrary to s.85 of the Act. For this offence
he was sentenced to imprisonment for a period of two months
to be served concurrently with the sentence ordered in
respect of count 4. 2. In addition to these penalties he was ordered to pay court fees and levies. He was further ordered to pay compensation in the sum of $4,100 for the damage to the car, fence, air conditioner and window. 3. The appellant was, therefore, ordered to serve a total head sentence of some four months and 49 days imprisonment, which might be more conveniently expressed as some 23 weeks imprisonment. 4. The appellant appeals against the sentences on the ground that they were manifestly excessive. He further appeals against the sentences on the ground that the learned magistrate erred in not suspending the periods of imprisonment. There is a further ground of appeal in relation to the orders of compensation which were made, the effect of which seeks a reduction in the amount to be paid having regard to information which has subsequently been obtained, information which was not before the learned magistrate. 5. All of these offences occurred at Morphett Vale and on the same day. The appellant formerly lived in a de facto marital relationship with Elizabeth Miller. That relationship came to an end in 1986. Since then the appellant has been paying her maintenance and he has had access to the children of that relationship. It seems that for a period of time there was no substantial discord between them and, indeed, notwithstanding the fact that they had terminated the relationship, communication between them was cordial and there were no difficulties in relation to questions of access. 6. However, that position apparently deteriorated towards the end of 1992 or at least by the beginning of 1993. It seems that there were issues concerning the question of access, the detail of which I need not go into now. In addition another cause for discord was that Ms Miller had applied for an increase in maintenance. There may have been other slights, real or imagined, between the appellant and Ms Miller. For example, it appears the appellant complains that Ms Miller had laughed at him on some earlier occasions. 7. At all events on 15 April 1993 a summary protection order was made pursuant to s.99 of the Summary Procedure Act forbidding the appellant from assaulting or interfering with the peace of Ms Miller. The order also required him not to approach Ms Miller. Obviously the events which occurred on the evening of 8 October stem from the discord to which I have referred between the appellant and Ms Miller. Mrs Chandler, who is the victim referred to in the third count, is the mother of Ms Miller. 8. The events of 8 October can be summarised in this way. On that day the appellant had lost his job. He was not dismissed but retrenched because of a lack of business available. The appellant carried on business as a sub-contractor installing roller doors and the like. The person to whom he sub-contracted was a company called Airport Doors Pty Ltd. That company had experienced a decline in business and was unable to continue to offer work to the appellant. Although he was a subcontractor, he did all his work for the one company and it is convenient to refer to him as an employee of that company. The appellant would, quite understandably, have been very upset at the news he had received that day. He went to a restaurant called Sizzlers on South Road, Morphett Vale, with another woman and a child. Unfortunately, as events turned out, Ms Miller and her mother were also present at the restaurant together with two children of the former de facto relationship. 9. Mrs Chandler, the mother of Ms Miller, had, it seems, gone to select some desserts with one of the children. While she was doing so and was absent from the table, the appellant came over to the table occupied by Ms Miller and her mother and poured a glass of beer over the head of Ms Miller. Ms Miller went then and telephoned the police. Mrs Chandler returned to the table and, on learning what had occurred, went over to the appellant and remonstrated with him. It appears that she approached him and picked up an empty stubbie bottle of beer and shook it in front of his face, abused him and called him "stupid". He took the bottle from her. She then picked up the glass of Coca Cola which was then on the table and threw it into the appellant's face. After that incident she turned away. As she did so the appellant kicked her in the lower back and on the buttocks. He kicked her with sufficient force to cause her to fall forward against another table. The appellant then picked up a chair and held it over his head and advanced towards Mrs Chandler. Several patrons of the restaurant then restrained him. 10. Not content with that, on leaving the restaurant, the appellant jumped on to the bonnet of Ms Miller's car then parked in the car park. He then tore off the driver's side rear view mirror, windscreen wipers and a radio aerial. The damage was estimated to be $2,500. The appellant then drove his four wheel drive motor vehicle to the house occupied by Ms Miller. That house is some one to two kilometres distant from the Sizzlers Restaurant. He drove his vehicle through the front metal fence causing damage to it. He also picked up a sledgehammer and smashed a bedroom window and air conditioning unit. The damage to the fence, window and air conditioner was estimated to be some $2,000. 11. The appellant is aged 37. He has two prior convictions in 1984 and in 1985. One of those is for disorderly behaviour. Whilst in that sense his previous record is relevant, I do not think that any real regard should be had to it. Although he cannot be described as having an unblemished record, by the same token his record is quite a good one, particularly as he is aged 37 years. The learned magistrate appears to have dealt with him on the basis that he was a first offender. His remarks on sentencing contain no reference to his prior offending. I see no reason why he should not be dealt with upon that footing. 12. What is particularly relevant is that the appellant was bound by a summary protection order to keep the peace towards Ms Miller. In addition, it was an unprovoked assault upon Ms Miller. Although he did not display any physical violence towards Ms Miller, the act of pouring a glass of beer over her head in a public place was plainly very humiliating. 13. The attack upon Mrs Chandler was, in one sense, more serious. Mrs Chandler was aged 62. The appellant kicked her when her back was turned and, after that, he picked up a chair and was advancing towards her. As Mr Ey has pointed out, the assault upon Mrs Chandler was provoked. She had gone across to him and remonstrated in a way which went, perhaps, a little beyond ordinary protest at what had occurred. Her acts, in one sense, might have been understandable. Her proper course was to leave the matter to the police, a course which her daughter had already put in train. There was no occasion for Mrs Chandler, concerned as she might have been at the assault upon her daughter, to act in the way that she did. Nevertheless, whatever provocation there might have been in the conduct of Mrs Chandler, it does not excuse the response which the appellant made. On any view, an attack by a fit man of some 37 years upon a person some 25 years older is altogether quite an unreasonable response to those actions. 14. As I mentioned, neither of the assaults resulted in any severe physical injury to either victim. It appears that Mrs Chandler later consulted a medical practitioner who noticed bruising and tenderness over her coccyx. She was also, as the practitioner notes: `Considerably wheezy in the chest, consistent with an asthma exacerbation.' The doctor reports that Mrs Chandler had not had asthma for some years and it was the doctor's opinion that the asthma attack had been brought on by the emotions associated with this incident. 15. The gravamen of these assaults lies more in the humiliation and embarrassment to each of the victims and any apprehension that they might have felt in consequence of the appellant's conduct and a concern as to what might follow later. That apprehension had to be weighed against the fact that they were in a public restaurant where others might come to their assistance. But they might reasonably have had an apprehension as to whether they would be subjected to any further assault as they went to the car park to drive home, or later that evening. 16. It is relevant also to have regard to the proper concern of the community concerning violence towards women. That was referred to by the learned magistrate in the course of his sentencing remarks. 17. The magistrate was plainly influenced by a need to impose a sentence which was both a general and a personal deterrent. It cannot be said, that having regard to either of those factors, that he has erred in any respect. The need for a personal deterrent was emphasised by the fact that a summary protection order had already been made against the appellant. 18. All of these factors point to the conclusion that, although the penalties for the assaults were severe, particularly as no physical injury was caused to either of the victims, they were, nevertheless, within the discretion of the magistrate. While I think the penalty was heavy in the case of each assault, I do not think it was manifestly excessive. 19. I turn to the offence of acting in breach of the summary protection order. The magistrate was obviously concerned to ensure that those who are served with a summary protection order understand that the courts will enforce them and will seriously view a failure to comply with them, particularly where that breach involves violent behaviour towards the victim. Here again, there are elements of personal and general deterrence present in the mind of the learned magistrate, in my view, correctly. 20. In the course of his reasons, the learned magistrate said:
"The matter is, of course, made all the worse by virtue of
the fact that the defendant was restrained by Court order
from assaulting or interfering with the peace of Elizabeth
Jane Miller. Women must be able to have recourse to the
Courts and obtain Summary Protection Orders to protect
themselves from violent behaviour by men. If a man has been
served with such an order then it must be made quite clear
to him, by orders of the Court, that breaches of those
orders will not be tolerated. By virtue of a specific court
order he was not to assault Elizabeth Jane Miller and he
breached that Court order in a most fundamental way." 21. The learned magistrate was plainly correct in taking that view. It was appropriate that the penalty be of a kind to remind the appellant that the order which had been made was to be observed. The conduct of the appellant on that evening indicated an unwillingness on his part to comply with that order. The assault upon Ms Miller was quite unprovoked. However, it must also be borne in mind that the offence, to all intents and purposes, involved the same conduct as was the subject of the count for assault upon Ms Miller. While, therefore, it was appropriate to order a penalty in respect to that offence, that penalty should have been ordered to have been served concurrently with the penalties for the other offences. 22. I turn to the offences of wilful damage. There were two sets of separate wilful acts. In both cases, quite extensive damage was caused, although it was not as serious as originally estimated. The damage to the motor car was estimated to be $2500. The actual repair bill was $2,179. The damage to the window and air conditioner is of the order of $1500, compared with the estimate of $2,000. I do not think that the difference between the estimates and the actual costs of making good the damage have any substantial bearing on the question of penalty. I merely acknowledge that the penalty for wilful damage varies according to the amount of damage caused. Where the damage exceeds $2,000, but does not exceed $25,000, the penalty is imprisonment for three years. Where the damage does not exceed $2,000, the penalty is imprisonment for two years. 23. What is particularly material in relation to these two offences is that on leaving the restaurant, the appellant engaged in two separate acts of wilful damage to the property of Ms Miller. Given that the damage to the car exceeded $2,000, the maximum penalty was three years imprisonment. 24. In causing that damage, it would have been necessary, as Mr Gupta, who appeared for the respondent, pointed out, for Mr Prime to have searched for and located the motor car in the car park at the Sizzlers Restaurant. Then he drove on to her house and, not content with driving his car through the fence, stopped the car, got out, picked up a sledgehammer and caused the damage already mentioned. Although the maximum penalty prescribed for this latter course of offending is less than that prescribed for the damage to the motor car, it must, nevertheless, be pointed out that there were two separate acts involved in the damage and there was an interval between them, namely, when the appellant would have stopped the car, got out, approached the house and then caused the damage mentioned. 25. The penalties for these two offences are very much at the lower end of the scale. I do not think it can be said that they are manifestly excessive. Further, the learned magistrate has ordered that both sentences be served concurrently. The sentences are well within his discretion and I do not think that they can be said to be manifestly excessive. 26. I turn to the question of whether the sentences should have been suspended. In this context, Mr Ey, who appears for the appellant, emphasises the following matters:
(1) the appellant's early plea of guilty;
(2) the degree of provocation associated with count 3;
(3) his remorse, expressed through his counsel to the court;
(4) the lack of premeditation. (I interpolate that is more
appropriately considered in relation to the assaults than in
relation to the wilful damage.);
(5) it is unlikely that this offending will recur or that he
would reoffend;
(6) the need for deterrence;
(7) the fact that there is now employment available to the
appellant. 27. In that latter connection it is to be noted that the appellant can resume work on Monday next. Airport Doors Pty Ltd, the company with whom he sub-contracts, has now picked up its business and is able to re-engage him to do the work he was doing prior to his retrenchment in October 1993. 28. This court has frequently observed that rehabilitation is an important aspect of the sentencing process. I refer to and adopt the remarks of the Full Court in Vartzokas v Zanker (1989) 152 LSJS 186. In this respect, here is a man aged 37 who can for all intents and purposes be regarded as a first offender who has employment available to him. It seems to me that, although regard must be had to the elements of general and personal deterrence, elements which were plainly and properly in the mind of the learned magistrate, the interests of the community are best served by the re-establishment of the appellant as an honourable, law-abiding citizen. 29. There are other factors which I think are particularly pertinent to the question of rehabilitation. First, his former de facto partner seeks payment of maintenance. Plainly, that objective is best served by his being in employment and in a position to discharge it. Secondly, it appears that he is on good relations with his children, despite the discord which has occurred between him and his former marital partner. If he has the opportunity to continue to see his children, his prospects of rehabilitation must be better than if he is in gaol. 30. Those are all factors to which regard should be had, in my view, in determining whether the sentence should be suspended. I repeat, as this court has often done, that the suspension of a sentence does not permit the person sentenced to go, as it were, scot free. Should that person re-offend that person will have to serve the balance of his sentence unless he can point to some triviality in relation to that subsequent course of re-offending. The usual course is that a suspended sentence is served. 31. There is a further factor for consideration in this case. The appellant has spent one night in custody. The slamming of the door behind him and that night in custody would, to use the words of WS Gilbert, be the "short, sharp shock" to remind him of his obligations to the community and in particular to his former de facto wife. 32. Whilst, therefore, all of the matters to which the learned magistrate referred are important in terms of both personal and general deterrence, those factors can, I think, be acknowledged by the suspension of a sentence in the interests of the rehabilitation of this man. The suspension should be on terms that he comply with a bond to be of good behaviour for a period of two years. I think it also appropriate to order a period of community service which can be served consistently with his employment and in a way which would not adversely affect his capacity to pursue his occupation as a sub-contractor to Airport Doors Pty Ltd. 33. The appeal therefore will be allowed. The orders of the learned magistrate made on 12 November 1992 are varied to the extent that the penalty imposed in respect of count 4, the failure to comply with a summary protection order, will be ordered to be served concurrently with count 2. I further vary the magistrate's order to suspend the period of imprisonment upon the appellant entering into a bond to be of good behaviour for a period of two years. It will be a condition of that bond that he perform a period of community service, that period to be a period of 80 hours over a period of 18 months. The appellant has also put before me evidence to which I have already referred concerning the extent of damage. Since the matter was before the learned magistrate the damage has been assessed by the insurer which has indemnified Ms Miller in relation to the motor car and the damage to the window. As yet there has been no indemnity for the damage to the airconditioner, although that damage has been assessed. There has been no assessment of the damage to the fence. The magistrate's order in relation to compensation will, therefore, be varied to reflect these more accurate amounts and I vary the magistrate's order to substitute for the order of compensation made by him an order that he pay compensation in the sum of $3,678. That sum is to be paid to the Registrar for and on behalf of the CIC Insurance Company as to the sum of $2,432. The balance is to be paid to the Registrar for and on behalf of either Ms Miller or the insurer, as the Registrar determines. There will be twelve months in which to pay that compensation. 34. There is no need to fix a non-parole period at this stage. I further order that the imprisonment ordered in respect of the fifth count as I have listed them in my reasons be served concurrently with the term of imprisonment ordered in respect of count 2. There will be orders as follows:
1. Appeal allowed.
2. The orders of the learned magistrate made on 12 November
1992 are varied to the extent:
(a) that the penalty imposed in respect of Counts 4 and 5
will be served concurrently with Count 2;
(b) that the periods of imprisonment will be suspended upon
the appellant entering into a bond to be of good behaviour
in the sum of $500 for a 12 period of two years. It will be
a condition of that bond that he perform a period of
community service, that period to be a period of 80 hours
over a period of 18 months;
3. The respondent will pay the appellant's disbursements
only in relation to this appeal.
4. The orders in relation to compensation are revoked and
in lieu thereof it is ordered that the appellant pay
compensation in the sum of $3,678. Of that sum, the amount
of $2,432 is to be paid to the Registrar for and on behalf
of the CIC Insurance Company and the balance is to be paid
to the Registrar for and on behalf of either Ms Miller or
the insurer, as the Registrar determines. There will be 12
months in which to pay that compensation.
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