Clavell v Police - [2014] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CLAVELL v POLICE
[2014] SASC 142
Judgment of The Honourable Justice Gray
24 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appeal against sentence. The defendant was convicted following his pleas of guilty to four counts of driving unauthorised, one count of driving at an excess speed, one count of driving with a prescribed drug in his oral fluid, one count of possessing a prescription drug without authority or reasonable excuse, two counts of assault and two counts of assault causing harm. The offences were committed between August 2013 and January 2014. The defendant was sentenced in the Magistrates Court to a total sentence of imprisonment of three years and eight months, with a non-parole period of two years and two months.
Whether the overall head sentence and non-parole period were manifestly excessive. Whether the Magistrate erred in failing to have regard to whether the four offences of assault were part of a course of conduct so as to warrant the imposition of concurrent or partially concurrent sentences. Whether the Magistrate erred in utilising section 18A of the Criminal Law (Sentencing) Act 1988 (SA) only in regard to two of the offences of assault. Whether the Magistrate erred in sentencing the defendant on the basis that he was aware at the time of his offending that his steroid use made him aggressive. Whether the Magistrate erred in providing inadequate reasons for the sentences imposed. Whether the Magistrate erred in mischaracterising two of the offences of driving unauthorised as offences of driving unlicensed. Whether the Magistrate erred in making a reduction to the head sentence on account of time spent in custody, rather than backdating the sentence to the time at which the defendant was taken into custody.
Held:
1. The overall sentence and non-parole period imposed by the Magistrate can be characterised as being particularly merciful and at the lower end of the range of appropriate sentences, having regard to the unprovoked and recurring nature of the offending and the impacts upon the victims. It is not appropriate to interfere with the sentence.
2. The four offences of assault should be properly characterised as amounting to separate incursions into criminal conduct.
3. Although the Magistrate’s approach in applying section 18A of the Sentencing Act was unusual, no error of law has been demonstrated.
4. The Magistrate when sentencing did not act on any misunderstanding of fact regarding the defendant’s steroid use.
5. It was within the sentencing discretion of the Magistrate to commence with the same notional starting point in relation to the offence of assault committed on 23 December 2013 and the offence of assault causing harm committed on 22 January 2014.
6. The Magistrate proceeded under the misapprehension that the defendant faced maximum terms of imprisonment in relation to each of the offences on 3 and 8 October 2013 of two years. Accordingly, the sentences imposed by the Magistrate of one month’s imprisonment in respect of each of those offences are ordered to be served cumulatively.
7. No error of law arises as a result of the Magistrate’s decision to reduce the head sentence on account of time spent in custody, rather than backdating the sentence to the time at which the defendant was taken into custody.
8. Appeal allowed for the limited purpose of ordering that the sentences imposed in respect of the two offences of driving unauthorised on 3 and 8 October 2013 be served concurrently.
Motor Vehicles Act 1959 (SA) s 74(2); Australian Road Rules r 20; Road Traffic Act 1961 (SA) s 47BA(1)(a); Controlled Substances Act 1984 (SA) s 18(3); Criminal Law Consolidation Act 1935 (SA) s 5AA, s 20(3) and s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A and s 30(2); Correctional Services Act 1982 (SA) s 37A, referred to.
R v Barnes [2014] SASCFC 79; R v Rossi (1988) 142 LSJS 451; Frank v Police (2000) 77 SASR 273; R v Malesevic (1999) 204 LSJS 32, considered.

CLAVELL v POLICE
[2014] SASC 142
Magistrates Appeals: Criminal
GRAY J.

This is an appeal against sentence.
On 26 May 2014, the defendant and appellant, Daniel Joel Clavell, was sentenced in the Magistrates Court following his pleas of guilty to the following offences:
-on 22 August 2013, at Goolwa South, he drove a motor vehicle unauthorised, contrary to section 74(2) of the Motor Vehicles Act 1959 (SA);
-on 28 August 2013, at Port Elliot, he drove a motor vehicle unauthorised, contrary to section 74(2) of the Motor Vehicles Act;
-on 3 October 2013, at McLaren Vale, he drove a motor vehicle at an excess speed, contrary to rule 20 of the Australian Road Rules;
-on 3 October 2013, at McLaren Vale, he drove a motor vehicle unauthorised, contrary to section 74(2) of the Motor Vehicles Act;
-on 8 October 2013, at Camden Park, he drove a motor vehicle unauthorised, contrary to section 74(2) of the Motor Vehicles Act
-on 2 December 2013, at Victor Harbour, he drove a motor vehicle while there was present in his oral fluid a prescribed drug, namely, methylamphetamine, contrary to section 47BA(1)(a) of the Road Traffic Act 1961 (SA);
-on 2 December 2013, at Victor Harbour, he had in his possession a prescription drug without lawful authority or reasonable excuse, contrary to section 18(3) of the Controlled Substances Act 1984 (SA);
-on 23 December 2013, at Victor Harbour, he assaulted Leonat Kolaj, contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA);
-on 17 January 2014, at Glenelg, he assaulted Christopher Leonard Huxtable, contrary to section 20(3) of the Criminal Law Consolidation Act;
-on 21 January 2014, at Glenelg, he assaulted Matthew Norman Drever and thereby caused him harm, contrary to section 20(4) of the Criminal Law Consolidation Act; and
-on 22 January 2014, at Plympton Park, he assaulted Jon Bernard O’Connor and thereby caused harm to him, contrary to section 20(4) of the Criminal Law Consolidation Act.
The defendant was convicted without further penalty for the offences of driving unauthorised committed on 22 and 28 August 2013, the offence of driving at an excess speed and the offence of possessing a prescription drug. In respect of the offence of driving with methylamphetamine present in his oral fluid, the defendant was fined $900.00. In respect of each of the offences of drive unauthorised committed on 3 and 8 October 2013, the Magistrate imposed separate cumulative sentences of imprisonment of one month. In respect of the offence of assault committed on 23 December 2013, the Magistrate sentenced the defendant to 12 months’ imprisonment. In respect of the offences of assault committed on 17 January 2014 and assault causing harm committed on 21 January 2014, the Magistrate imposed the one sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of imprisonment for 18 months. In respect of the offence of assault causing harm committed on 22 January 2014, the Magistrate imposed a sentence of 12 months’ imprisonment. The Magistrate ordered that all sentences were to be served cumulatively, resulting in a total sentence of imprisonment of three years and eight months. The sentence was then reduced by four months on account of time spent in custody. A non-parole period of two years and two months was fixed. The head sentence and non-parole period were both ordered to commence on the date of sentencing.
The Magistrate’s Remarks
The sentencing process confronting the Magistrate was complicated by the need to sentence the defendant for multiple offences committed over a period of time. For this reason, it is convenient to extract the Magistrate’s sentencing remarks in some length, so that there can be a proper understanding of the approach taken by the Magistrate in regard to each offence.
The Magistrate addressed the defendant’s personal history and noted:
… I take into account that you are 26 years of age. You are one of 10 children, five sisters and four brothers. There has been much instability in your personal life. I am told your father was originally a prison guard, who gave you support and was a role model to you. In your teen years, he developed a drug problem and was also responsible for domestic violence, which had a profoundly bad effect on your family life. Around the age of 15 or 16 when still under the influence of your father, you commenced using steroids. There was no censure from your father in relation to that use and influenced by him, you wanting to keep fit and to encourage muscle repair and used steroids. Your steroid use has become a significant problem. You are now aware that as you increased your dose, your steroid use led to a heightened level of aggression, problems with anger control and dysfunctional thought patterns, which, as I will refer to later, brought about a number of very serious assaults.
Your father was involved in criminal activities, shot and imprisoned when you were 16. It is easy to imagine the disruption and dysfunction such events would cause a person of 16 years of age. In a background of disruption, it is to your credit that you completed year 11 at the Pasadena High School. You then completed an apprenticeship to be a barber and you have maintained on and off employment at Castle Plaza, disrupted by your criminal activity; as shown by the matters brought before courts and a number of resulting terms of imprisonment.
The Magistrate noted the defendant’s extensive criminal antecedents and observed:
You appeared in the Children’s Court for offences of dishonesty back in 2005, also aggravated serious criminal trespass, common assault and offences which showed you were defiant and belligerent; failing to comply with a bail agreement, stating false personal particulars in both bail agreements and to police officers. You were committed for trial in 2006 and then sentenced in the District Court for attempted robbery, an offence from 2005. You were sentenced to four years imprisonment with a non-parole period of two years. Since that time you have been convicted in the Port Adelaide Magistrates Court of using or threatening to use unlawful violence; no prison term was imposed. You have been convicted of possession of prescription drugs without prescription and numerous offences of breach of bail. In 2011 in the District Court, you were sentenced to one year, five months and 30 days imprisonment with a non-parole period of 11 months. In the following year, you were once more convicted of possession of prescription drugs without a prescription. Your licence was disqualified earlier this year and you have appeared before the Adelaide Magistrates Court and Christies Beach Magistrates Court for a number of offences of driving without a licence, having never held a drivers licence. You currently have District Court proceedings, firearm offences, which are outstanding in Mount Gambier. You are to be arraigned on those charges and I am told you are pleading not guilty, which means in sentencing you today I can take into account the time that you have spent in custody since 22 January.
The Magistrate first considered the two offences of driving unauthorised committed on 22 and 28 August 2013. In relation to these offences, the Magistrate observed:
You have never held a drivers licence. You have never made the effort to get one. I understand domestic disruption, lengthy periods of imprisonment and the fact that your licence would have been disqualified from time to time, has discouraged you from doing so. You have defiantly continued to use vehicles as shown by the fact that there are four such offences before the court, two of which pre-date a sentence of imprisonment that was imposed in another Magistrates Court together with fines for similar offences. From your criminal record, which has been tendered, there is a need to determine whether you are to be dealt with as a first or a second offender for offences under s 74(2). Given; the time you have spent in custody, the fact that these two offences predate other matters where you have been fined, that fact that you are serving a period of imprisonment, you owe thousands of dollars worth of unpaid fines and you are to be sentenced to gaol today, for the offences from 22 August and 28 August you will be convicted without penalty. I remit everything except the Victim of Crime levies and the prosecution costs.
The Magistrate next considered the offences of driving unauthorised and driving in excess of the speed limit committed on 3 October 2013, as well as the offence of driving unauthorised committed on 8 October 2013:
The next two offences, committed on 3 October and 8 October, occurred shortly after you had appeared in the Adelaide Magistrates Court in September and were fined for the same offence. You face a maximum period of imprisonment for two years for such offending. Of relevance to the sentence is: your age, your defiance, your belligerence, the fact that you continued to drive after your vehicle was impounded on 28 August and you incurred $3,464.60 worth of impoundment costs. The fact you got into a car in October, in my view, warrants a period of imprisonment in relation to both matters. What would have been six weeks imprisonment is discounted to one month’s imprisonment. So I fix a nominal period of one month’s imprisonment in relation to both of those offences.
In relation to the allegation of speeding, you will be convicted without penalty. I remit the court fees. You will be required to pay Victim of Crime levies.
In relation to the offence of unlawful possession of a prescription drug committed on 2 December 2013, the Magistrate noted:
In relation to the offence of possession of steroids, I am not sure if there was a drug diversion before the matter was remitted to court. As you are in custody and likely to be there for a while, you will be convicted without penalty and there will be no court fees. You will pay a Victim of Crime levy and $100 towards prosecution costs.
In relation to the offence of driving while there was present in the defendant’s oral fluid a prescribed drug, namely, methylamphetamine, the Magistrate observed:
You face a minimum penalty for driving with methamphetamine of a $900 fine and a three month loss of licence; both penalties I impose. I remit the court fees. You will be required to pay a Victim of Crime levy and nothing further towards prosecution costs. There is only one award of prosecution costs. In relation to the two offences, there is three years disqualification from holding or obtaining a drivers licence in relation to both matters. I will come back to whether they will be concurrent or cumulative when I finish the sentencing process.
The Magistrate then turned to the offences of violence. The Magistrate first addressed the circumstances relating to the offence of assault committed on 23 December 2013:
On 23 December 2013 you were in a cafe in Albert Place at Victor Harbor. A stranger was eating his breakfast with his wife. This stranger, the person we now know to be Mr Kolaj, sensed that you were looking at him. He felt uncomfortable. He decided to exit the cafe with his wife and as he did so there was a conversation which you commenced and then without warning you punched him twice. He left, went to the safety of a shopping precinct to await the police and you were subsequently arrested. Mr Kolaj was 38 years of age and in his Victim Impact Statement he said ‘I was very distraught, shocked and embarrassed at what happened. My wife and I travelled to Hindmarsh Island and rented a house for the Christmas period to relax and recharge our batteries. We arrived the day before and decided to go out for breakfast. I had no idea anything of this nature would happen. Over the next few days I did not feel comfortable leaving the house we rented due to the state of my face and my wife and I were extremely worried that he...’ meaning you ‘...would come after us because we went to the police. I couldn’t talk to my family over Christmas. I didn’t speak to them for a week or a week and a half because I didn’t want to upset them about what had happened. I have struggled with myself since this happened and I have been extremely anxious and will be until this is all over.’ He developed a large black eye, a large haematoma underneath his eye, suffered three weeks of dizziness and jaw and neck pain and felt a very heavy headache for two weeks. He was prescribed Panadeine Forte, Buprofen for treatment of a headache and jaw pain. He worked as a subcontractor and as a result of the dizziness the doctor told him he could not work until it had gone. He lost six working days which cost him $1,500. He has provided proof of a number of bills he has received for X-rays, medical imaging, petrol, and prescription medication. I have a receipt from Chemist King. He claims to have lost a holiday booking. He was unfit for work until 5 January and there is a statement for his medical expenses.
As noted by the Magistrate, the defendant was arrested following this offence. The defendant was interviewed by police and was released. The Magistrate made the following observations in sentencing the defendant for the offence:
In sentencing you for this offence, I note that you do not rely on any medical, psychological, psychiatric reports or pre-sentence reports. As you have been in the prison system, there would have been assessments and there would be some information that may assist me to consider the likelihood of your rehabilitation. You admit and wish to be sentenced on the basis that you took steroids for your own vanity or health when you knew that they made you more aggressive. I do not know what your base level of aggression was, but it is suggested to me and accepted by prosecution that this random attack on an unknown person was as a result of this elevated level of aggression brought about by steroid use.
Your counsel has rightly conceded that, pursuant to s 11 of the Sentencing Act, given that you have shown a propensity for violence, this offence warrants a period of imprisonment. Pursuant to s 10, the sentence imposed needs to be one of imprisonment because the sentence has to fit for its purpose and there are a number of apparent purposes. The paramount consideration is the need for a strong public and personal deterrence to anybody who is involved in random, unwanted and inexcusable acts of violence. What you did to this man was inexplicable and completely unwarranted. I take into account the impact that the injury has had upon him and the randomness of your attack. Other sentencing considerations are inconsequential because I have not heard of contrition or remorse, but even if I accept that is the case, you are not in a position to make compensation. There is nothing that you have done personally to make good this injury and in my view the starting sentence would be 15 months imprisonment which, in view of your plea of guilty, leads to a sentence of 12 months imprisonment.
The Magistrate next addressed the circumstances relating to the offence of assault committed on 17 January 2014:
Moving on to the next assaults that you have admitted. The sentencing considerations that I have already outlined are equally applicable to this matter, although in my view what makes your offending worse is that the victim was over the age of 60 years when the assault occurred, I am told he was 67 years of age. At 8.55 a.m. the victim was walking alone along Jetty Road at Glenelg. You took umbrage when walking with a female and approached this man and said, ‘What are you fucking looking at?’ He said, ‘Nothing mate. It’s good. I’m cool’. That did not stop you from punching him to the right side of his stomach, causing a sharp pain and then you said to him ‘Fuck you paedophiles’.
The Magistrate addressed this offence together with the offence of assault causing harm committed on 21 January 2014, which was charged on the same Information. The Magistrate noted the circumstances of this offence as follows:
The second count involves a man, Matthew Drever who, at 5.45 p.m. on 21 January arrived home at his unit at Gordon Street, Glenelg. He went to his mail box to retrieve mail. He then went to his car and sat down to have a cigarette. You resided in the same block of units and you approached him because you had some problem in relation to mail being taken out of your mail box. You asked him whether he had taken your mail. He said he hadn’t. You became verbally aggressive, put your face close to him and warned him that if he ever took mail out of your mail box you would punch his head in. You called him a ‘fucking paedophile dog’ then showed your teeth in the way a dog does before you punched him to the left side of his face with a clenched fist causing a facial fracture and a bloody nose. You threatened him, saying, ‘Don’t go to the cops. I will know it if you do and I will bash your fucking head in’. As a result of that he feared he would be assaulted if he reported the matter to police. A CT scan revealed a depressed facture of the interial wall of the left antrium.
The Magistrate made the following further observations in relation to these two offences:
These two citizens had done nothing wrong, had not provoked you and your level of aggression. Even if steroids trigger aggression, this use does not explain what cognitive functioning would lead you on two occasions within four days to pick on perfect strangers, deprive them of their enjoyment of life, their feeling of safety and shock them with these unprovoked attacks. I will impose a global penalty for the two assaults. What would have started at 24 months imprisonment will be reduced to 18 months given your plea of guilty. I take into account the need for strong deterrence. You had already been dealt with by police for the Victor Harbor matter on 23 December, yet made no alterations to your life.
There must be deterrence for those who know that they are susceptible to violence but take no assistance from doctors or otherwise and continue to offend. Your experience on 17 January should have been humiliating given the victim was 67 years of age, yet you then pick on somebody in the block of units where you reside. The need for personal deterrence is strong, to protect those people against unprovoked, unwarranted attacks by strangers.

The Magistrate lastly addressed the offence of assault committed on 22 January 2014:
Your next assault occurred the day after. You were in a gym. Mr O’Connor, this victim, was in a steam room and going about his business. He left the steam room and met you because he had come out of the steam room to rinse off. You said, inexplicably to him ‘What are you looking at? Why are you looking at little girls?’ He denied that and was puzzled by it. You attacked him, punched him and broke his right eye socket. In his Victim Impact Statement he says, when asking about the non-physical trauma and under the heading ‘Fear’, ‘I’ve great difficulty feeling comfortable out in public, especially entering toilets or confined spaces when in the company of strangers. I now no longer use pools or saunas or spa facilities at my local health club. Rather I return home after a gym session and shower. I’m very fearful of being out in public spaces. I received a broken nose, a broken eye socket in the assault, I had three stitches above my right eye. I have had chiropractic treatment for neck pain which I believe was caused by the assault. The ambulance cost me over $900, my chiropractic treatment has cost me $100 to date’ and he has provided the invoices in relation to that treatment. He says ‘When out in public I don’t feel I’ll ever feel completely safe again as a result of this incident. I’m 50 years old. I’ve never been in any trouble with the law. I believe I’ve been a good, honest and law-abiding citizen. I did not deserve to be beaten like this and I truly hope that my attacker is dealt with in a severe manner as he deserves to be’.
The same sentencing considerations are relevant to this matter. Your victim was 50. You had the physical strength over him. You also had the strength of a surprised attack. It was a random act of violence because of your mood, your elevated anger and this was the fourth time in public, because of your cognitive functioning or the way you were feeling at a particular time, you decided to pick on somebody and this particular person was vulnerable. He was relaxing. He was coming out of a steam room. He had no reason to expect such a matter and in relation to that attack, given the injuries that were caused, there will be a nominal sentence of 15 months which will be reduced to 12 given your plea of guilty.
Following this incident, the defendant was arrested in relation to the offending on 17, 21 and 22 January 2014.
In setting an overall head sentence, the Magistrate addressed the principle of totality as follows:
Your counsel has asked me to consider the totality principle and not give you a sentence that that principle suggests may be crushing. Adding up the five periods of imprisonment that I have imposed, you are liable to three years and eight months imprisonment and that is if I make the two offences of driving under disqualification also cumulative. I do not consider that, given your pleas of guilty, that three years and eight months is a crushing sentence, given the lack of explanation or justification for these serious assaults and also your on-going belligerence in relation to driving. I will start the sentence from today, but given that you have been in custody since 22 January the head sentence will now be three years and four months. I will give you credit for the time you have spent in custody.
When setting a non-parole period, I am aware of your age, your youth, your possible rehabilitation. You have determined to put little before the court to suggest there is any community-based rehabilitation programs that you are wishing to undertake. You have served lengthy periods of imprisonment as a very young man. You have graduated onto parole on at least two occasions. That has not led to your rehabilitation and there is certainly a defiant streak. You do things your own way as shown by your attitude in giving false particulars and your breach of bail. Your time in custody has led you to study the Quran and your aspiration is to use those religious studies and your involvement with Muslim religion to adopt the principles and requirements of that religion and be healthy, drug free, alcohol free and that would help you to rehabilitate yourself. It is not suggested that you are involved in any formal study or that there is any group to support you, I certainly hope that there is. At least one victim, Mr O’Connor, has said what is called upon in this situation is for there to be a non-parole period imposed to enhance the paramount consideration in sentencing you, that is for community safety and public and personal deterrence. I sentence you to a non-parole period of two years and two months dating from today’s date.
The Appeal
The defendant’s primary contention on the appeal was that the sentence imposed by the Magistrate was manifestly excessive. In addition, the defendant submitted that the Magistrate’s sentencing discretion had miscarried as a result of a number of particular errors.
Manifestly Excessive
The defendant submitted that the Magistrate erred in applying a manifestly excessive starting point of 15 months’ imprisonment in relation to the first charged act of violence, the offence of basic assault committed on 23 December 2013. It was contended that this was an objectively less serious offence than the last act of violence, the offence of assault causing harm committed on 22 January 2014, for which the Magistrate applied the same starting point.
The defendant also contended that the non-parole period fixed by the Magistrate was manifestly excessive. Taking into account the time already spent by the defendant in custody as at the date of sentencing, the defendant faces a total time in custody of two years, six months and four days before he will be eligible to apply for parole. This reflects a proportion of slightly above two thirds of the total head sentence that the defendant faced before a reduction was made on account of time spent in custody. The defendant contended that that non-parole period is manifestly excessive taking into account the circumstances of the defendant and, in particular, his relative youth.
The defendant further contended that in sentencing the defendant for the offences of assault, the Magistrate erred in placing excessive weight on the impact of the injuries to the victims and too little weight on circumstances personal to the defendant. As earlier noted, in relation to the assault on 23 December 2013, the Magistrate outlined the injuries to the victim and then observed:
… Other sentencing considerations are inconsequential because I have not heard of contrition or remorse, but even if I accept that is the case, you are not in a position to make compensation. There is nothing that you have done personally to make good this injury and in my view the starting sentence would be 15 months imprisonment which, in view of your plea of guilty, leads to a sentence of 12 months imprisonment.
The defendant submitted that a lack of evidence of contrition or an inability to pay compensation do not render inconsequential the circumstances personal to an offender. It was noted that at the time of sentencing, the defendant was in custody and not in a position to offer any reparation. Attention was drawn to section 13 of the Sentencing Act, which provides that a court must not make an order requiring a defendant to pay a pecuniary sum in such circumstances.
The injury, loss or damage resulting from an offence is but one of the considerations to which a court may have regard when passing a sentence in accordance with section 10 of the Sentencing Act. It was therefore not strictly correct for the Magistrate to state that other sentencing considerations were rendered inconsequential as a result of the defendant’s lack of demonstrated contrition.
However, in the circumstances, I do not consider it appropriate to interfere with the sentence imposed by the Magistrate. The defendant’s offending was at the upper end of the range of seriousness for offences of assault. On four separate occasions over a period of one month, the defendant engaged in unprovoked and inexplicable attacks on members of the public who were unknown to him. Those attacks caused physical injuries to their victims, leading to the incursion of medical expenses and causing lasting detriment to their perceptions of personal safety. Further, the offending on 17, 21 and 22 January 2014 occurred after the defendant had been arrested and dealt with by police in relation to the assault on 23 December 2013. Considerations of personal and general deterrence are of particular significance in these circumstances. Members of the public are entitled to feel safe from acts of random and unprovoked violence.
In my view, the sentence and non-parole period imposed by the Magistrate can be characterised as being particularly merciful and at the lower end of the range of appropriate sentences, having regard to the unprovoked and recurring nature of the offending and the impacts upon the victims. It may be accepted that a degree of mercy was appropriate due to the defendant’s relatively young age of 26 years at the time of sentencing and his dysfunctional upbringing. However, these factors must be weighed against the defendant’s poor record of prior offending, including offences of attempted robbery, aggravated serious criminal trespass, theft, assault and numerous breaches of court orders. Furthermore, it must be borne in mind that a degree of mercy was extended to the defendant in relation to the offences for which he was convicted without further penalty. Accordingly, except for the remaining grounds of appeal to be discussed later in these reasons, I do not consider it appropriate to interfere with the sentence imposed by the Magistrate.
Concurrency and Section 18A of the Criminal Law (Sentencing) Act 1988 (SA)
The defendant submitted on the appeal that the Magistrate erred in failing to have regard to whether the four offences of assault were part of a course of conduct so as to warrant the imposition of concurrent or partially concurrent sentences. The defendant submitted that there was a strong argument for at least partial concurrency. In particular, the defendant submitted that the offences of assault were all committed within a period of one month and contained the following similar factors: they involved punching; the assaults were unprovoked; the victims were unknown to the defendant; and the offences were only explained by heightened aggression due to steroid abuse. The defendant submitted that, in these circumstances, the assaults constituted a course of conduct that justified the imposition of a concurrent or partially concurrent sentence.
In Barnes, I made the following observations regarding the principle of concurrency:[1]
There are no fixed criteria in determining whether sentences must be made cumulative and a flexible approach is always open to a sentencing judge to fashion a sentence appropriate to the circumstances. …
…
Generally, where there are truly two or more incursions into criminal conduct, cumulative sentences will be appropriate and, where a number of offences are one multi-faceted course of criminal conduct, concurrent sentences are likely to be appropriate. Even where offences involve separate incursions into crime it may be appropriate to make the sentences at least partially concurrent.
[Footnotes omitted.]
[1] R v Barnes [2014] SASCFC 79, [29], [31].
In Rossi, a defendant received cumulative sentences in relation to three offences of armed robbery that occurred in similar circumstances over a period of three months.[2] When considering the issue of concurrency, King CJ observed:[3]
These crimes were unrelated crimes, each involving its own distinct criminality and each deserving of the sentences which were passed by the learned sentencing judge for them. It is, therefore, not surprising that the learned sentencing judge made the order that the sentences be cumulative upon one another. This court has often said that offenders cannot expect a discount for quantity, and it is not to be thought that an offender who continues to offend is to be punished less severely for the subsequent offences.
[2] R v Rossi (1988) 142 LSJS 451.
[3] R v Rossi (1988) 142 LSJS 451, 452.
In my view, the four offences of assault should be properly characterised as amounting to separate incursions into criminal conduct. The offences occurred on different days over a period of one month and against different victims. The final three offences occurred after the defendant had already been dealt with by police in relation to the offence on 23 December 2013. Accordingly, the defendant had ample opportunity to consider his conduct and to seek assistance in curbing his aggression.
As earlier noted, the Magistrate imposed the one sentence pursuant to section 18A of the Sentencing Act in relation to the offence of assault on 17 January 2014 and the offence of assault cause harm on 21 January 2014. It is to be noted that those offences were charged on the one Information. The Magistrate gave no indication as to why she utilised section 18A only in respect of these two offences and not in relation to all four offences of assault. The defendant submitted on the appeal that the Magistrate had used section 18A inconsistently, resulting in a sentence that was manifestly excessive.
Although the Magistrate’s approach in applying section 18A of the Sentencing Act was unusual, no error of law has been demonstrated. Further, as earlier noted in relation to the ground of manifest excess, I consider that the overall sentence imposed by the Magistrate was well within her sentencing discretion and, indeed, was at the lower end of the range of available sentences. Accordingly, I do not consider that the Magistrate’s unusual application of section 18A has given rise to any error.
Steroid Use
A further complaint was advanced on the appeal that the Magistrate had erred in sentencing the defendant against an incorrect factual background. Attention was drawn to the following passage of the Magistrate’s remarks:
… You admit and wish to be sentenced on the basis that you took steroids for your own vanity or health when you knew that they made you more aggressive. I do not know what your base level of aggression was, but it is suggested to me and accepted by prosecution that this random attack on an unknown person was as a result of this elevated level of aggression brought about by steroid use.
[Emphasis added.]
The defendant contended that the Magistrate erred in sentencing the defendant on the basis that he was aware at the time of his offending that his steroid use made him aggressive. An affidavit sworn by Nikki Louise Conley, counsel appearing for the defendant at the time of sentencing submissions, was filed on the appeal. Ms Conley recalled having submitted to the Magistrate that it was not until the defendant ceased his steroid use as a result of being incarcerated that he realised the effect that steroid use was having on his behaviour. The defendant submitted on the appeal that this was an important factor that went some way to explaining the random nature of the attacks, and was the primary submission made in mitigation regarding the circumstances of the offending. It was further submitted that an important factor in considering the defendant’s prospects of rehabilitation was that he now had insight that steroid abuse makes him more aggressive.
Counsel for the police on the appeal accepted that the above extract did not accurately reflect the defence submission concerning steroid use. However, it was pointed out that the submission was not accepted or acted upon by the Magistrate as, later in her remarks, the Magistrate observed:
… Even if steroids trigger aggression, this use does not explain what cognitive functioning would lead you on two occasions within four days to pick on perfect strangers, deprive them of their enjoyment of life, their feeling of safety and shock them with these unprovoked attacks. …
It is also relevant to observe that at the outset of the Magistrate’s remarks, she noted:
… Your steroid use has become a significant problem. You are now aware that as you increased your dose, your steroid use led to a heightened level of aggression, problems with anger control and dysfunctional thought patterns, which, as I will refer to later, brought about a number of very serious assaults.
I am not satisfied that the Magistrate when sentencing acted on any misunderstanding of fact as suggested.
Identification of the Maximum Penalties
The defendant submitted that the Magistrate erred in providing inadequate reasons for the sentences imposed. In particular, the defendant pointed out that the Magistrate did not specifically identify the differing maximum penalties applicable to the offence of basic assault committed on 23 December 2013 and assault causing harm committed on 22 January 2014. It was contended that the Magistrate’s failure to identify the maximum penalties, together with the fact that she commenced with the same starting point in relation to both offences, left the impression that the defendant had incorrectly been sentenced in relation to the 23 December 2013 offending for the offence of assault causing harm.
The fact that the Magistrate considered the same starting point for the offence of basic assault committed on 23 December 2013 and assault causing harm committed on 22 January 2014 is not itself an error. Both offences were similar in nature. They were serious, unprovoked assaults, causing injuries to their victims. It follows that it was within the sentencing discretion of the Magistrate to commence with the same notional starting point in relation to both offences.
The defendant also complained on the appeal that the Magistrate had referred to the age of the victim of the 17 January 2014 offending as being 67 years, despite the prosecution withdrawing the aggravating feature that was initially charged that the victim was over the age of 60 years.
Section 5AA of the Criminal Law Consolidation Act defines a number of circumstances which render an offence an aggravated offence, including, pursuant to section 5AA(1)(f), where the offender committed the offence knowing that the victim was over the age of 60 years at the time. However, section 5AA(6) provides:
This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence.
Accordingly, the Magistrate was entitled to take into account the age of the victim, notwithstanding the withdrawal of the aggravating feature.
The Offending on 3 and 8 October 2013
The defendant submitted on the appeal that the Magistrate had erred in mischaracterising the offences to which the defendant had entered guilty pleas as a result of his conduct in driving on 3 and 8 October 2013. The Complaints relating to these dates each charged the defendant with an offence of driving unauthorised, contrary to section 74(2) of the Motor Vehicles Act. That offence carries a maximum penalty of a fine of $2,500.00 for a first offence, and a fine of $5,000.00 or imprisonment for one year for a subsequent offence. However, in dealing with these offences in her sentencing remarks, the Magistrate observed:
The next two offences, committed on 3 October and 8 October, occurred shortly after you had appeared in the Adelaide Magistrates Court in September and were fined for the same offence. You face a maximum period of imprisonment for two years for such offending. …
[Emphasis added.]
Later in her remarks, the Magistrate referred to these offences as follows:
Adding up the five periods of imprisonment that I have imposed, you are liable to three years and eight months imprisonment and that is if I make the two offences of driving under disqualification also cumulative.
[Emphasis added.]

On the appeal, the defendant contended that the Magistrate appeared to have sentenced the defendant on the mistaken basis that he had pleaded guilty to offences of driving under disqualification, contrary to section 91(5) of the Motor Vehicles Act. That offence carries a maximum penalty for a first offence of imprisonment for six months and a maximum penalty for subsequent offences of imprisonment for two years.
The police accepted on the appeal that the Magistrate’s reference to the offence of driving under disqualification was a technical error, but submitted that there was no basis to support the assertion that the defendant was sentenced for this offence rather than the offence of driving unauthorised. Counsel for the police pointed out that the Magistrate expressly stated on two occasions in her remarks that the defendant had never held a driver’s licence, and correctly identified section 74(2) of the Motor Vehicles Act as being the applicable provision. Counsel for the police also contended that the Magistrate’s reference to “two years” was a reference to the maximum term of imprisonment for the aggregate of the two offences of driving unauthorised.
In my view, it is apparent that the Magistrate has proceeded under the misapprehension that the defendant faced maximum terms of imprisonment in relation to each of the offences on 3 and 8 October 2013 of two years. Accordingly, I consider it to be appropriate to make some adjustment to the sentences imposed in relation to those offences. As noted by the Magistrate, the defendant had previously been sentenced on a number of occasions for offences of driving unauthorised, having never held a licence. The sentences imposed by the Magistrate in respect of the offending on 3 and 8 October 2013 constituted the first occasion on which the defendant had received a sentence of imprisonment in respect of a driving offence. In these circumstances, I consider it appropriate to confirm the sentences imposed by the Magistrate in respect of each offence of imprisonment for one year, but to order that these sentences be served concurrently.
Time in Custody
The defendant’s final complaint on the appeal was that the Magistrate erred in failing to backdate the sentence to the date on which the defendant was taken into custody. As earlier noted, the defendant was arrested following the assault on 22 January 2014 and remained in custody at the time of sentencing on 26 May 2014. The Magistrate noted that the defendant was the subject of criminal proceedings in the District Court and observed:
… You are to be arraigned on those charges and I am told you are pleading not guilty, which means in sentencing you today I can take into account the time that you have spent in custody since 22 January.
After fixing sentences in respect of each offence, the Magistrate observed:
Adding up the five periods of imprisonment that I have imposed, you are liable to three years and eight months imprisonment and that is if I make the two offences of driving under disqualification also cumulative. … I will start the sentence from today, but given that you have been in custody since 22 January the head sentence will now be three years and four months. I will give you credit for the time you have spent in custody
The Magistrate fixed a non-parole period of two years and two months, commencing from the date of sentencing.
On the appeal, the defendant submitted that the Magistrate failed to adequately explain why she decided to make a reduction to the overall sentence on account of time spent in custody, rather than backdating the head sentence and non-parole period to commence on the date when the defendant was taken into custody. It was submitted that the decision to make a reduction on account of time spent in custody rather than backdating the sentence had consequences for the date on which the defendant would be eligible to apply for home detention pursuant to section 37A of the Correctional Services Act 1982 (SA).
The defendant further contended that the Magistrate did not explain why she reduced the head sentence by a period of four months on account of time spent in custody, when the defendant had actually been in custody for a period of four months and four days at the time of sentencing.
Section 30(2) of the Sentencing Act provides:
If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a)     make an appropriate reduction in the term of the sentence; or
(b)     direct that the sentence will be taken to have commenced—
(i)    on the day on which the defendant was taken into custody; or
(ii)     on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
Section 30(2) provides a clear statutory discretion to the sentencing Judge as to how to account for time spent in custody when sentencing a defendant. It has been held that, where possible, it is to be preferred that a sentence be backdated.[4] The reason for this is to ensure that the true extent of the penalty is clearly known. However, a departure from this general practice can be cured by the sentencing Judge making it clear that the period already spent in custody has been taken into account when arriving at the sentence imposed.
[4]    Frank v Police (2000) 77 SASR 273.
By expressly fixing a nominal head sentence and then reducing that sentence on account of time spent in custody, the Magistrate made clear the true extent of the penalty. While the defendant may have preferred that the sentence be backdated, there was no requirement for the Magistrate to adopt this approach and no error of law has arisen.
In relation to the additional four days of custody for which credit was not given, it is to be noted that nothing in the text of section 30(2) of the Sentencing Act requires a sentencing Judge to take into account time spent in custody when fixing either the head sentence or the non-parole period. In Malesevic, Doyle CJ considered the ambit of section 30(2) and observed:[5]
The language of the subsection is permissive and enables the court to "have regard" to the period spent in custody. It does not require that there be a strict mathematical calculation. …
It was therefore within the Magistrate’s discretion to give credit for only four months on account of time spent in custody.
[5] R v Malesevic (1999) 204 LSJS 32, [41].
Conclusion
The appeal is allowed for the limited purpose of ordering that the sentences imposed in respect of the two offences of driving unauthorised on 3 and 8 October 2013 be served concurrently. Accordingly, the defendant faces sentences of imprisonment for a total period of three years and seven months. I make the same reduction of four months on account of time spent in custody as did the Magistrate, leading to a total head sentence of three years and three months. In relation to this total head sentence, I fix a non-parole period of two years and one month. The orders of the Magistrate are otherwise confirmed. The sentence is to commence on 26 May 2014 the day on which the defendant was sentenced by the Magistrate.