Cook v Police No. Scciv-03-1410

COOK v POLICE
[2001] SASC 385
Magistrates Appeal

PRIOR J: The appellant complains that a sentence of 48 months imprisonment with a non-parole period of 32 months is manifestly excessive. The sentence results from sentences and orders imposed by a magistrate on 10 September 2003. The magistrate had the unenviable task of having to sentence the appellant for some 16 offences committed between April 2002 and July 2003. All but three of those offences constituted breaches of three suspended sentence bonds.
The bonds were entered on 11 June 2002. One related to another bond entered on 2 April 2001. On that first occasion the respondent had been sentenced to one month’s imprisonment for disorderly behaviour and resisting police. That offence occurred on 17 November 2000. The sentence of one month’s imprisonment was suspended on the appellant entering into a bond to be of good behaviour for 12 months and performing 80 hours of community service in six. Breach of that bond occurred because of the offences dealt with by the other two bonds. A further bond was imposed on 11 June. The respondent admitted that the three June bonds were breached by the other 16 offences already referred to.
The offences the subject of two of the bonds entered into in June 2002 were one of assaulting a family member in January 2002, for which the respondent was sentenced to three months imprisonment, suspended on entering into a 12 month good behaviour bond, and offences of disorderly behaviour, failing to cease loitering, hindering and assaulting police. A sentence of four months imprisonment for assault police was suspended on the respondent entering into a 15 month good behaviour bond with 12 months supervision.
The most serious offending dealt with by the magistrate related to three convictions for indecent assault. The three charges involved two girls. A single sentence of 30 months imprisonment was imposed. The victims were schoolgirls aged 13 and 14. Two of the offences occurred on 6 August 2002. They involved each of the two girls. The third was committed between April and May 2002 against one of the girls the subject of the other two charges. All three offences occurred when the girls were on a bus going home from school. There were other young people on the bus at those times.
The charges of indecent assault were the subject of a trial before the magistrate. The charges were found proved on 26 June 2003. With respect to the offence first in point of time, being the third count on the information, the magistrate found that the young girl was leaning out of a window of the bus speaking with a friend when the appellant sat near her and said to a boy seated on his left ‘She’s pretty hot’ whilst pointing with his right thumb to the girl. The appellant then started to rub the outside of the girl’s left leg over her skirt. He was rubbing the top of her skirt over the girl’s left leg and made contact in the area between her hip and knee. The appellant rubbed back and forth but did not grip the girl’s leg. He attempted to rub her leg again whilst saying ‘She’s pretty hot’.
The magistrate properly described the appellant’s actions as lurid forms of behaviour, offending to a substantial degree against recognised standards of common propriety.
With respect to the two August offences, the magistrate found that the same girl was confronted by the appellant after he walked from the front of the bus saying that the bus driver had given him permission to fuck anyone he wanted. The appellant was also heard to say that he could rape the girl the subject of the first count and that he asked her whether she was as horny as he thought she was.
The girl said that after the appellant sat down in front of her, he turned and faced her saying that he had not had a fuck in a while and asking ‘Would you blow me?’. The girl replied ‘No’, with the appellant saying ‘Oh, please’. The magistrate found that the appellant then started to rub the girl’s right leg in a downward direction above her knee. There was no skin contact, but the appellant was saying ‘Please, please’ at the time, the duration of the contact being for a few seconds before the girl brushed the appellant off and moved.
With respect to the first count, involving another young girl, the magistrate found that the appellant placed his right hand between the upright back of the seat near the rear of the bus and the seat cushion and said ‘Creepy hand’ while moving the fingers of his right hand up and down as he did so. He then touched that girl on the left side of her bottom area and rubbed and scrubbed her left leg in the thigh area on her left side.
The appellant then attempted to touch her in the region of her breasts and then actually touched one of her breasts on two occasions. All contact was on the outside of the girl’s clothing. As already noticed, before that occurred, the appellant said things about what the bus driver had given him permission to do and made allusions to that girl being horny.
There was evidence before the magistrate that after those assaults the appellant lay back in his seat and for a few seconds placed his hand over his crotch rubbing himself on the outside of his pants with his eyes closed. He then stood up and walked over to where one of the girls was sitting and tried to sit on her lap. She pushed him off. The girls were shaken by what had happened. They got off the bus with some other students. The appellant followed them asking them where they were going. The two girls got into a car. The appellant undid his fly and started to urinate while smiling at the group who had got out of the bus.
The sentence for an indecent assault upon girls of the ages involved here is imprisonment for a term not exceeding eight years. These three offences were committed within two months of the appellant entering into the bonds already mentioned. That is a circumstance of aggravation in itself. All three offences must be described as serious, involving, as they do, vulnerable young girls.
It is a circumstance of aggravation that two offences were committed soon after the first offence and in similar circumstances. Where young children are involved in offences of this nature, the need to protect them is of particular significance, as is the need for personal and general deterrence. The offending was serious and was particularly harmful to the two young girls. I refer, in particular, to the victim impact statements and note what has been put to me in the course of submissions today.
It is necessary for courts to impose sentences which serve, as far as possible, as deterrence to those who attempt to commit crimes like this[1]. The magistrate had to regard the protection of these young girls against persons minded to commit this type of offence against them as the paramount consideration in the sentence he imposed.
[1] Beattie v R (1993) 169 LSJS 266
The other 13 offences dealt with by the magistrate were the subject of guilty pleas. They were committed in August 2002, March, April and July of 2003. Section 18A of the Criminal Law (Sentencing) Act 1988 was invoked by the magistrate to have sentences of imprisonment imposed with respect to these four separate occasions.
The offending consisted of two counts of assault police, one of resist police, one count of damage property, four counts of offensive language, three of disorderly behaviour and two of refusing to state name and address.
The magistrate had no reasonable alternative open to him but to proceed in the way that he did, revoking the three suspended sentence bonds, the eight months imprisonment being carried into effect and imposing sentences with all but one of them being cumulative upon each other, given that the groups of offences dealt with in the various matters before the magistrate represented separate incursions into criminal conduct[2]. The imprisonment imposed resulted in 10 months being added to the sentence of 30 months for the indecent assaults. The total sentence was therefore 48 months given the cumulative order with respect to the revoked suspended sentences.
[2] Attorney-General v Tichy (1982) 30 SASR 84 at 92 - 93
The sad fact is that besides all of those various offences, the appellant had a considerable list of antecedents including numerous previous convictions for similar offences.
The appellant had been previously sentenced to five periods of imprisonment, all of which had been suspended. As already noticed, he had breached a suspended sentence bond by further offending, a magistrate then excusing the breach and directing the appellant to enter into a fresh bond and imposing two further suspended sentence bonds for the breaching offences.
Plainly, the appellant’s prospects of rehabilitation were, and indeed still are, poor. His criminal antecedents and continued repeating offending were usually in combination with alcohol. The nature and number of his previous offending meant that the magistrate had little room for leniency.
The recent offending occurred whilst the appellant was receiving some support in monitoring for alcohol abuse from a clinical psychologist. As mentioned in the course of the hearing before me, the sad fact is that the appellant did not do what he had been urged to do, go and get more help than he actually sought.
Having regard to all that has been put to me, I acknowledge the strength of the submission that the sentence of 30 months for the indecent assaults was at the higher end of the scale rather than that it could be said to be manifestly excessive. However, in the circumstances as I have considered them, I am persuaded by what has been put to me by counsel for the appellant that the sentence imposed for these offences is, in all the circumstances, manifestly excessive. The magistrate has failed to take proper allowance for the personal circumstances of the appellant and the circumstances of that offending. Overall, I think he has given undue weight to the need for deterrence.
The appellant certainly had a dismal record of previous appearances before courts and convictions for offences that do him no honour. However, the indecent assaults were not a repetition of previous similar offending. All previous offending involved offences of a non-sexual nature. The appellant was plainly the worse for wear as a result of his intoxication and addiction to alcohol. He needed to do more than he was doing to curb his inclination to behave badly with no regard or respect for others.
Were it not for the total sentencing package imposed, I may have been minded to have accepted the Crown submission that the sentence for the indecent assaults is simply on the high side. However, uneasy as I am about the total sentencing package, I think that the interests of justice are best served by my interfering with the sentence imposed for the indecent assaults alone whilst indicating, very plainly, that but for my decision to have the other sentences stand, I may have imposed a higher sentence for the indecent assaults than I now propose to substitute. I substitute a sentence of 18 months imprisonment for the indecent assaults. The total sentence to be served is therefore 3 years. I fix a non-parole period of 24 months.
I dismiss the appeals against sentence on all but the sentence imposed for the indecent assault. There is some ground for critically reviewing the total sentencing package imposed for the offences other than those of indecent assault. However, it seems to me that the interests of justice are best served by allowing the appeal solely for the purpose of substituting the sentence of imprisonment I have indicated for the indecent assault charges. The sentence for those indecent assaults could well have been more than I have now substituted but for the retention of the other sentences which, in total, seem quite high.
I therefore order:
1. Extend time within which to appeal.
2. Appeal allowed.
3. Substitute for the sentence imposed for indecent assaults a sentence of 18 months imprisonment.
4.For the head sentence of three years imprisonment fix a non-parole period of 24 months, that sentence and non-parole period dating from 10 September 2003.

[2003] SASC 385

19 November 2003