COLLINS v Police

[2006] SASC 327

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

COLLINS v POLICE

[2006] SASC 327

Judgment of The Honourable Justice Sulan

1 November 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - GENERALLY

Appeal against a sentence - appellant pleaded guilty to refusing to submit to a breath analysis, assaulting a member of the police force with the intent to resist or prevent lawful apprehension and damaging a police vehicle - as to the offence of assault, the appellant was sentenced to six months imprisonment, to be released from custody after serving a period of one month and upon his release, to enter a bond to be of good behaviour for a period of five months - whether the whole sentence should have been suspended - factors the court should consider when determining a sentence - appeal allowed - total period of imprisonment suspended.

Criminal Law Consolidation Act 1935 s 43(c), s 85(3); Criminal Law (Sentencing) Act 1988 s 38, s 38(2a); Road Traffic Act 1961 s 47E, referred to.
Yardley v Betts (1979) 22 SASR 108, considered.

COLLINS v POLICE
[2006] SASC 327

Magistrates Appeal

1. SULAN J: The appellant pleaded guilty, first, to refusing to submit to a breath analysis, contrary to s 47E of the Road Traffic Act 1961; secondly to assaulting a member of the police force with intent to resist or prevent lawful apprehension, contrary to s 43(c) of the Criminal Law Consolidation Act 1935; and, thirdly, to damaging a police vehicle, contrary to s 85(3) of the Criminal Law Consolidation Act 1935.

2. The appellant was fined $700 and his driver’s licence was disqualified for a period of twelve months in respect of the offence of failing to comply with a reasonable direction of a member of the police force. As to the offence of assault, the appellant was convicted and sentenced to six months imprisonment. The Magistrate ordered that, pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988, the appellant be released from custody after serving a period of one month’s imprisonment and, upon his release, he enter into a bond to be of good behaviour for a period of five months.  The Magistrate entered a conviction without further penalty for the offence of damaging property.  The appellant was ordered to pay compensation to the South Australian Police Force in the amount of $430.10.

3. The appellant appeals against the sentence of imprisonment.  The appellant contends that the whole sentence should have been suspended.

   Background facts

4. The incident occurred on Wednesday, 30 June 2005 at 11.55 p.m.  The appellant was driving a utility along the Mount Barker Road when Constables Seppelt and Vonow, stopped his vehicle in order to require him to undergo a breath analysis.  The appellant underwent an alcotest and it returned a positive reading.  He was then directed by the police officers to return to the Mount Barker Police Station to undergo a breath analysis.  The appellant did not wish to go to the police station.  Constable Seppelt explained to him that he was required to attend, as the alcotest was only a screening test.  He refused to go to the police station.  He was offensive towards the police officers.  He was arrested.

5. Constable Seppelt took hold of the appellant, who resisted.  The appellant made contact with Constable Seppelt’s stomach.  This led to a struggle.  The appellant attempted to break free.  Constable Seppelt placed the appellant in a headlock to restrain him.  Constable Vonow, was attempting to place handcuffs on the appellant.  The appellant then complained that he could not breath.  Upon Constable Seppelt releasing him from the headlock, the appellant lashed out at Constable Seppelt and broke free.  A passenger in the appellant’s vehicle then got out of the car.  Constable Vonow turned her attention to the passenger, requesting that the passenger return to the car.  As this was occurring, the appellant overpowered Constable Seppelt and forced him onto the bonnet of the police car.  The appellant was kneeling on top of Constable Seppelt.  He punched the police officer in the face several times.  Constable Vonow then used capsicum spray to restrain the appellant.  At some stage, another police officer arrived on the scene and the two officers were able to remove the appellant from the top of Constable Seppelt and handcuff him.

6. Constable Seppelt and the appellant suffered effects from the capsicum spray.  Constable Seppelt sustained injuries to his face, neck, shoulders, left thumb, and the right side of his rib cage.  As a consequence of the assault, he has a bulging disc in his lower spine.  He was unable to undertake operational duties for about six months.  He continues to suffer pain in his back.  His active lifestyle has been reduced, and he has suffered from depression.

   The appellant’s personal history

7. The Magistrate took into account a pre-sentence report which detailed the appellant’s personal circumstances.  The appellant is 28 years old.  He came from an unstable background.  He was abused as a young child by an older female.  Over the years he has relied on alcohol and has used drugs to self-medicate a depressive disorder.  The Magistrate also had regard to a psychologist’s report and to a number of character references.

   The Magistrate’s decision

8. The Magistrate concluded that there were sufficient reasons to suspend the sentence but, nevertheless, determined that the offending was so serious that the appellant must serve some period of time in gaol.  The appellant has previous convictions, including convictions for disorderly behaviour, minor drug offences, and motor vehicle offences.  The appellant has no convictions for assault or offences involving violence.  In imposing the penalty, the Magistrate emphasised the overriding duty of the court to have regard to the welfare of police officers, and to deter those who are prone to acting violently to police officers from doing so.  The Magistrate highlighted that, by the very nature of their job, police officers are in a vulnerable position. The Magistrate considered that the offending was so serious that a period of the sentence must be served in gaol.

   The appellant’s submissions

9. Counsel for the appellant accepts that general deterrence is an important factor when considering offending of this nature.  He submits that the appellant’s antecedent history was relatively minor, and that the Magistrate placed too much weight on personal deterrence. 

10. The main thrust of counsel’s submissions before is that the Magistrate failed to take into account, or have sufficient regard to, a material matter which explains, in part, the appellant’s conduct.

11. Counsel for the appellant, who also appeared as counsel before the Magistrate, submits that he had informed the Magistrate that the appellant suffered from an unresolved feeling of frustration and anger towards the police and, in particular, towards Constable Seppelt.  It is not disputed that on a number of prior occasions the appellant’s brother had been reported for driving offences.  On these occasions, the appellant’s brother had given the appellant’s name when asked to identify himself.  Constable Seppelt had attended at the appellant’s home on occasions looking for the appellant in order to serve him with summonses for alleged offences which he had not committed, but for which his brother was responsible.  The appellant had had contact with Constable Seppelt and explained his frustration to the police at his brother’s conduct.  Apparently, on one occasion, Constable Seppelt had spoken to the appellant’s mother, and the appellant genuinely believed that the police had been rude to her.  He was frustrated by the situation which was not of his own doing, and he wrongly, but genuinely believed that the police were victimising his mother and himself.  The frustration that the appellant was harbouring explained his personal aggression towards Constable Seppelt. 

12. The appellant accepts that Constable Seppelt was doing no more than his duty as a police officer on the occasions when he was seeking out the appellant.  He also accepts that Constable Seppelt was doing no more than his duty when he requested that the appellant go to Mount Barker Police Station on the relevant day.  The appellant does not suggest that Constable Seppelt acted other than properly in carrying out his duties as a police officer.  The appellant’s counsel emphasised that it was the appellant’s perception that Constable Seppelt was victimising him and his mother.

13. The Magistrate, who gave detailed reasons, made no mention in his reasons of the matters to which I had referred when he set out the circumstances of the offence and the personal circumstances of the appellant.  The incident was mentioned by Mr Fugler, a psychologist, who reported that the appellant recognised Constable Seppelt as the police officer who had previously attended at his mother’s home on two occasions in relation to a traffic matter involving his brother, The appellant’s mother perceived Constable Seppelt’s behaviour as aggressive and rude and she felt intimated.  She had communicated this to the appellant, and it is likely to have influenced his attitude and response towards Constable Seppelt when breath tested on 30 June 2005. 

14. Counsel for the respondent accepted that this is a material matter which the Magistrate should consider.  Counsel for the respondent conceded that if the Magistrate had failed to have regard to this matter, then that would constitute an error.  She accepts that the appellant’s perception about Constable Seppelt was a matter material to sentence. 

15. The Magistrate does not appear to have considered the submission.  He made no mention of it in his extensive reasons for sentence.  Although it is not a requirement that a sentencing court refer to every submission of counsel when delivery sentencing remarks, where a matter is material to the exercise of the court’s discretion, some mention of it is required.

16. Counsel for the appellant further submits that the Magistrate erred in stating that the court has an overriding duty to have regard to the welfare of police officers. Counsel submits that this error resulted in the Magistrate not having sufficient regard to other relevant factors relating to the personal circumstances of the appellant. He submits that the emphasis the Magistrate placed on the need to protect police officers led the Magistrate to erroneously conclude that part of the sentence should be served in custody. He submits that s 10 of the Criminal Law (Sentencing) Act 1988 (“the Act”) places no specific requirement on the court to have regard to the welfare of police officers over and above other factors relevant to the exercise of the sentencing discretion. The Act makes specific reference to home invasions and arson in requiring the court to have regard to the primary policy of the criminal law to protect the security of occupants of premises from intruders. In the case of arson, the Act requires the Court, in determining penalty, to emphasise to the offender the extreme gravity of the offence.

17. Section 10 of the Act refers to a number of matters to which a court should have regard when considering a sentence. They include the circumstances of the offence, the personal circumstances of any victim, any injury resulting from the offence, the degree to which a defendant has shown contrition, the plea of guilty, the deterrent effect of any sentence upon the defendant, the character, antecedents, age, means and physical or mental condition of the defendant, the rehabilitation of the defendant and the need for adequate punishment. The court must perform a balancing exercise between competing factors in determining a sentence.

    The appeal

18. The Magistrate was correct in concluding that police officers are in a vulnerable position.  The risk that police officers confront in carrying out their duties is an important factor to consider when sentencing persons who commit acts of violence against police officers in the course of their duties.  The court has a responsibility to protect police officers who are assaulted in the performance of their duty.  It is important to ensure that penalties will act as both a general and personal deterrent to those who are inclined to commit this type of offence, particularly where the violent conduct is sustained and causes serious injuries.  A sentence of imprisonment is justified and warranted for this conduct.

19. In considering whether to suspend the sentence, the Magistrate had regard to the appellant’s personal circumstances.  It is conceded by counsel for the respondent that the Magistrate failed to refer to relevant factors personal to the appellant which contributed to his conduct. 

20. The appellant has suffered a depressive disorder for the past five years.  He self-medicated with the use of alcohol and drugs, which exacerbated his mood swings, anger and aggressive behaviour at the time of the offence.  His aggressive behaviour was to a large extent due to his feelings of anger and frustration towards the police, particularly Constable Seppelt.  Constable Seppelt’s conduct throughout was exemplary.  However, the appellant genuinely perceived that Constable Seppelt had caused his family, and in particular his mother, distress.  The Magistrate failed to refer to the unusual circumstances which caused the appellant to believe that he and his mother were being victimised.

21. The Magistrate concluded that there was good reason to suspend the sentence, but he considered that a minimum period of one month’s imprisonment should be served.  He concluded that there was an overriding duty to have regard to the welfare of police officers and to deter people such as the appellant, who are prone to react violently to police officers.  I consider that the Magistrate placed too much emphasis upon the overriding duty to have regard to the welfare of police officers. 

22. The Magistrate emphasised the personal deterrence that the sentence would have on the appellant.  However, he failed to have sufficient regard to steps taken by the appellant to avoid offending in the future.  I consider that the Magistrate attached too much weight to the seriousness of the offence and insufficient weight to the factors personal to the appellant, which explained his conduct.   The failure of the Magistrate to have sufficient regard to the factors peculiar to the appellant’s conduct constitutes an error.  I would set aside the sentence.  It therefore falls upon me to re-sentence the appellant.

23. The assault took place in unusual circumstances.  This offending was out of character.  The appellant has stable employment and is well regarded within the community.  He has demonstrated contrition and has changed his lifestyle in order to deal with his depression and with his excess use of alcohol.

24. Counsel for the appellant relies on the dicta of King CJ in Yardley v Betts,[1] in which the then Chief Justice observed that cases of assault vary greatly in seriousness.  Offenders vary from the normally law-abiding person who is caught up in a situation of stress which erupts into violence, to the habitual bully and thug.  The Chief Justice observed that, in some cases, a term of imprisonment is justified.  In other cases, a term of imprisonment can be counterproductive to an offender who has shown contrition and has a stable life and a stable family situation.

    [1] (1979) 22 SASR 108.

25. The appellant has no prior convictions for violence.  The offending was out of character.  The appellant has taken steps to address his feelings of anger and his depression.  He has reduced his alcohol consumption, and is consulting his general practitioner.  He has taken genuine steps to change his lifestyle.  He is in regular employment and has support of his family, his employer and other friends.   He has taken a number of steps towards his rehabilitation.  Regard should be had to his rehabilitation.  A short immediate custodial sentence is unlikely to assist his future rehabilitation.

26. The Magistrate was satisfied that good reason existed to suspend the major portion of the sentence.  Although the offending is serious, I believe there is good reason to suspend the entire sentence.  There is insufficient reason to order that part of the sentence be served forthwith.

27. The appeal is allowed.  The sentence for the offence of assault a member of the police force with intent to resist or prevent lawful apprehension is revoked.  I impose a sentence of six months imprisonment, suspended upon the appellant entering into a recognizance in the sum of $500 to be of good behaviour for twelve months, to be under the supervision of a Community Corrections Officer, and to undertake any medical or psychological treatment as directed by the Community Corrections Officer.  Further, that the appellant is to perform 120 hours of community service, to be performed within six months.

28. The orders of the Magistrate are affirmed in respect of the other offences to which the appellant pleaded guilty.  The order for compensation is affirmed.