Davidson v Police No. Scgrg-98-1627 Judgment No. S23

[1999] SASC 23

DAVIDSON v POLICE
[1999] SASC 23

Magistrates Appeal:  Criminal

1. PERRY J (ex tempore). The appellant appeals against the penalty imposed upon him in the Magistrates Court sitting at Tanunda following his plea of guilty to two counts, namely, that on 25 April 1998 he assaulted another man contrary to s39(1) of the Criminal Law Consolidation Act 1935, and that on the same day he damaged a Datsun utility the property of the same man, contrary to s85(3) of the Act.

2. The appellant was represented by counsel, Mr Rogers, who put submissions for leniency, including a submission that any penalty of imprisonment should be suspended. The learned sentencing magistrate proceeded to convict the appellant and impose one penalty pursuant to s18(a) of the Criminal Law (Sentencing) Act 1988, namely, six months imprisonment to commence forthwith, that is, on 16 November 1998. At the same time he ordered the appellant to pay $958.55 compensation for the damage to the utility.

3. There was a co-defendant, Andrew Glover.  He has not yet been dealt with and is due to appear in the Magistrates Court in February.

4. In his notice of appeal the appellant raises a number of grounds of complaint. He asserts that the learned sentencing magistrate did not sentence the appellant on the version of facts most favourable to him; did not take into account agreed facts as to the number of blows struck; and erred in failing to suspend the sentence of imprisonment. He further contends that the sentence was manifestly excessive, and that the order to pay compensation against the background of the custodial sentence indicates a failure to give due consideration to s13(1) of the Criminal Law (Sentencing) Act.

5. The appellant is a 35 year old unemployed man living in a de facto relationship, in the course of which he has fathered three children.  In March 1984, he appeared in the Supreme Court on a charge of armed robbery.  He was sentenced to three years imprisonment with a non-parole period of twelve months.  In May 1984, apparently while he was serving that sentence, he appeared in the Children’s Court on a charge of hinder or resist police, upon which he was convicted without penalty.

6. More recently, in August 1997, about eight months before the commission of the offence now in question, he appeared in the Magistrates Court on two counts of assault upon which he was convicted and fined $700.

7. I have the benefit of affidavits both from the police prosecutor, Mr Lloyd, who appeared on behalf of the respondent in the court below, and an affidavit from Mr Rogers, the appellant's counsel at first instance.

8. In the course of his affidavit, Mr Lloyd sets out a resume of the facts as they were narrated to the learned sentencing magistrate.  He supplements that in a further affidavit which was sworn just before the hearing of the appeal.

9. From this it appears that the victim was at the Hamley Bridge Hotel on the evening before the assault occurred.  He left a little after midnight after consuming about five schooners of beer.  The victim then lay down in his utility which was parked in the street immediately outside the hotel.

10. About fifteen minutes later he was awakened by a male person, who turned out to be the co-defendant Glover, yelling out words to the effect “You're him” or “You're it”.  The victim was of the opinion that Glover was very drunk.   Glover advanced on the victim and punched him twice in the face with his clenched fist.  The victim then saw the appellant grab something from the back of the utility and approach him while Glover continued to assault him.

11. The appellant then ran towards the victim holding a broom or rake with which he struck the victim on more than one occasion.  As a result, the victim fell to the ground whereupon he was struck further by the rake or broom, and kicked, as he put it, numerous times.  He managed to get up and run to the Hamley Bridge Police Station.  As he did so he heard banging noises coming from the vicinity of the utility, but he did not pause to look back.  It is a reasonable inference that the noise was caused by the appellant and Glover striking the utility.

12. The victim was taken from the police station to Gawler Hospital in an ambulance where he was treated for a corked right thigh, a lump on the top of his head, which was painful, and a sore jaw and a headache.  His wooden broom handle had been snapped in half and the rake handle split, which is suggestive of the use of force in the assault either on him, or the utility, or both.

13. So far as the utility is concerned, the right side door was dented and the window winding mechanism damaged.  The right front corner panel and the roof were dented.  Although the victim recognised Glover as a person who had been in the hotel during the evening, he did not provoke the assault in any way and did not speak to either Glover or the appellant in the course of the evening.

14. The compensation which was awarded was one half of the total compensation sought, which was $505.40 for an ambulance and $1,381.70 for damage to the utility.  Apparently, the order that the appellant pay half is based on the fact that he was a co-defendant.

15. Mr Mead for the appellant emphasised in his submissions before me that the actual involvement of the appellant was minimal compared with that of the co-defendant Glover.  He draws attention to the fact that agreed facts were put to the learned sentencing magistrate which confirmed that the activity of the appellant for which he was to be sentenced was two blows on the head of the victim with the wooden rake handle, and two kicks to his body after he had fallen down.  But as I pointed out to Mr  Mead, this was an attack by two persons in concert.  The appellant is therefore also responsible for the other assaults committed by Glover during the course of the incident.

16. Mr Mead submitted that the injuries were not serious.  That is true up to a point, but this was a violent and unprovoked assault which, quite apart from the physical sequelae, must have left its mark on the victim.

17. Quite properly, Mr Mead submitted that one must make allowance for the effect on the children of the appellant of the imposition of a prison term.  They are, as he pointed out, still young.

18. He drew attention to two decisions of mine in the matters of Walsh v DSS[1] and Bates v Police[2] where I draw particular attention to that aspect of the sentencing process.  He then referred to a number of other cases dealt with, in the main, by this Court in which penalties were imposed, or reviewed for relatively minor assaults.  He drew attention to the fact that in one or two of those instances, sentences below six months imprisonment were imposed for assaults which, on the face of it, might fairly be regarded as more serious than this assault.

    [1] (1996) 67 SASR 143.

    [2] (1997) 70 SASR 66.

19. It is always possible to make those sorts of comparisons, but they are of limited utility as assault cases differ enormously, both in the immediate circumstances in which the assault might be committed, and in the personal circumstances and background of the offender.

20. The fact remains that the maximum penalty in this case was three years imprisonment.  I think that the only relevant comparison is to have regard to the sentence which was imposed against the background of that statutory maximum.

21. Ms Lee-Justine for the respondent submitted that this was an unprovoked attack in company, which circumstance alone warranted the imposition of a significant sentence.  She drew support for that submission from the decision of Bray CJ in Birch v Fitzgerald[3] and from the decision of Angel  J, sitting in the Supreme Court of the Northern Territory, in Sullivan v Pulford.[4]  As Bray CJ said in Birch v Fitzgerald:

    “... there are offences in which ... the deterrent purpose of punishment must take priority.  When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens, it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated. .....

    I am not, of course, saying that all such first offenders ought to be sent to gaol.  There is a wide range for the proper application of judicial discretion. .... But I cannot say in sentencing a first offender of good character to two months imprisonment for an unprovoked assault of this severity in these circumstances he exceeded the bounds of the sentencing discretion confided to him by the law.”[5]

    [3] (1975) 11 SASR 114.

    [4] (1989) 99 FLR 126.

    [5] 11 SASR 114 at 16-117

22. As Ms Lee Justine pointed out, at the time those remarks were made the maximum term for an assault was one year.

23. In dealing with the record of the appellant, Mr Mead stressed that the incident which resulted in the conviction on two counts for assault in 1997 should be regarded as relatively minor.  Apparently, it involved an incident at the Casino in Adelaide, the victims being two crowd control officers, and as it was put to the learned sentencing magistrate, there were mitigating circumstances.  It does not appear from the papers what those circumstances were, and Mr  Mead was not able to enlarge on them during the course of the hearing of the appeal before me, as there was no warrant to allow further information of that kind to be given.  But I am prepared to assume that the assaults in question which resulted in that conviction and sentence were not in the most serious category, as they were dealt with by way of a fine only.  Be that as it may, the appearance by the appellant in court to face up to those charges should have brought home to him the fact that he could expect to be dealt with more severely if he committed any further assaults.

24. Some of the remarks made by the learned sentencing magistrate during the course of sentencing the appellant are of concern to me.  He referred to “unprovoked serious violence in the form of home invasions”.  He referred to an incident involving an elderly couple at Hahndorf who were both assaulted by a man who used a hammer to hit them around the head, that having occurred on the previous weekend.  He also referred to other very serious incidents of people being assaulted in a violent fashion while going about their business.  That and other remarks made by the learned sentencing magistrate suggest to me that he may have diverted his attention from the immediate circumstances of the case at hand, and allowed himself to be influenced by a not unnatural reaction against a background of unprovoked violence involving innocent victims in the community.

25. Of course, it is perfectly proper for a magistrate sitting in a particular district to take into account the incidence of violence in it in determining the appropriate penalty for an offender who appears before him or her, but looking at the comments made by him as a whole, in my opinion, there might be justifiable cause for concern as to whether or not the learned sentencing magistrate allowed himself to be distracted unduly by those considerations at the expense of focussing more particularly on the case at hand.

26. In those circumstances, I think the proper course for me to take is to exercise the discretion afresh.

27. Standing back from the matter and exercising the discretion afresh, I must take into account, however, the fact that this was, however it is approached, a most serious assault involving an unprovoked attack in company.  It was a cowardly assault and the victim had done nothing whatever to excuse the manner in which the two offenders descended upon him.

28. Making every allowance for the appellant's personal circumstances and the affect upon his dependants and the other matters which were put to me very competently by Mr Mead, I am unable to accept the proposition that the appropriate penalty is other than an immediate custodial term.  So far as the length of that term is concerned, in my opinion, six months is not exceptional and, even approaching the matter afresh, in my opinion, the sentence of six months which was imposed should not be disturbed.

29. On the other hand, in my opinion, the learned sentencing magistrate has failed properly to apply the requirements of s13(1) of the Criminal Law (Sentencing) Act, which is mandatory in its terms.  It precludes the imposition of an order to pay a pecuniary sum if the defendant would be unable to comply with the order, or if it would unduly prejudice the welfare of dependants of the defendant.

30. Here, the defendant lives on Social Security, has three young children, and his de facto wife has only part-time or casual work to supplement their joint income.  In the circumstances, I think that it is unreal to suppose that the appellant could fairly be expected to pay the compensation which was ordered.

31. I allow the appeal for the limited purpose of quashing the order for compensation.

32. The appeal is, therefore, allowed for that purpose only.  The sentence of imprisonment is confirmed and the orders made by the learned sentencing magistrate in all other respects will remain in place.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1. (1996) 67 SASR 143.

2. (1997) 70 SASR 66.

3. (1975) 11 SASR 114.

4. (1989) 99 FLR 126.

5. 11 SASR 114 at 16-117