Davis v Police - [2004] SASC 318

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DAVIS v POLICE
Judgment of The Honourable Justice Anderson
5 October 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING
Appellant serving life imprisonment for murder - whilst in prison, assaulted a prison officer - guilty plea to assault after four days of trial - Magistrate imposed sentence of twelve months - appeal on grounds that sentence manifestly excessive - jurisdictional question as Magistrate had failed to follow s32(5)(b) of the Criminal Law (Sentencing) Act 1988 (SA) - non-parole period required to be extended - whether time that appellant spent in G Division should be taken into consideration in imposing sentence - matters of general deterrence considered - whether Magistrate considered all relevant factors in sentencing - held: sentence imposed was manifestly excessive, reduced to six months, non-parole period extended by twelve weeks.
Criminal Law (Sentencing) Act 1988 (SA) 32(1)(b), 32(5)(b); Correctional Services Act 1982 (SA) 36(2)(d); Magistrates Court Act 1991 (SA) s42(5)(c), referred to.
O'Neil v South Australian Police (unreported, Judgment No.S5636, 16 May 1996); R v Morse (1979) 23 SASR 98, applied.
Musico v Police [2003] SASC 26, not followed.
Higgins v Fricker (1992) 63 A Crim R 473; Heal v Police (1999) 75 SASR 331; R v Shepperbottom (2001) 212 LSJS 486; R v Liddy No.2 (2002) 84 SASR 231; R v Priestley [2002] SASC 438, considered.

DAVIS v POLICE
[2004] SASC 318

ANDERSON J The appellant is currently serving a life sentence of imprisonment for murder. In relation to this matter he pleaded guilty for an assault occasioning actual bodily harm which was upon a prison officer but only after a trial had commenced and proceeded for four days.
He was sentenced by the learned Magistrate to a period of imprisonment for twelve months. The maximum penalty for the offence was a term of imprisonment not exceeding five years.
A question arose at the outset of this hearing about my jurisdiction given that the Magistrate, in error, had failed to follow the provisions of s32(5)(b) of the Criminal Law (Sentencing) Act 1988 (SA) because the appellant was serving a sentence of life imprisonment and the subsection required that the question of whether a non-parole period should be extended, to be referred to the Supreme Court because that court was the court in which the sentence of life imprisonment for murder was imposed.
This question was dealt with by allowing a cross-appeal from the respondent out of time. The appellant did not oppose this late cross-appeal.
I was referred to the decision of O’Neil v South Australian Police (unreported, judgment no.S5636, 16 May 1996) on this point. Set out hereunder is the order which Prior J made as follows:
“I also allow the appeal for the purpose of setting aside the order extending the non-parole period fixed by the magistrate, substituting an order referring into this court the question whether the appellant’s non-parole period with respect to the sentence of life imprisonment for murder should be extended. That order being made, I proceed now to exercise the jurisdiction of this court and consider whether, in the face of the sentence substituted for that passed by the magistrate, the non-parole period should be extended.”
With respect to his Honour, I adopt the same procedure which seems to me to avoid the unnecessary complication of my referring it back to the Magistrate so that he in turn can refer it to this court exercising its criminal jurisdiction.
I realise that this is contrary to the remarks of Mullighan J in Musico v Police [2003] SASC 26. In particular [at 44], his Honour declined to follow the course adopted by Prior J. With respect to Mullighan J, it seems that he was influenced by a view that it was only appropriate to act upon an application by the Director of Public Prosecutions, and not the police who were the respondent in that matter.
I take the view that it is neither the police nor the Director of Public Prosecutions which are the relevant instigator. S32(5)(b) requires the sentencing Magistrate to refer the matter to the court which imposed the sentence of life imprisonment.
Because that was not done, I consider that the course adopted by Prior J in O’Neil is the pragmatic and correct solution. I consider it is justified by s42(5)(c) of the Magistrates Court Act 1991 (SA).
The circumstances of the offence are that the appellant, because he was upset and depressed as a result of an argument he was having with prison authorities, consumed a bottle of disinfectant which required him initially to be taken to the Yatala Labour Prison infirmary where he was treated and then transferred to the Royal Adelaide Hospital. He apparently expected, on his return from the Royal Adelaide Hospital, to be taken back to the infirmary.
After having been examined at the Royal Adelaide Hospital, he was taken back to Yatala but placed in G Division, which is effectively solitary confinement. The appellant became particularly upset about this, and more so when he was instructed by a prison officer, the victim, to remove his clothing for the purpose of being strip searched. The appellant had been sexually abused at an early age and found this suggestion difficult to cope with. As a result, he failed to allow the strip search to proceed and force was used upon him when the victim and a number of other prison officers were involved. In the course of a general struggle between the appellant and the prison officers, the victim received an injury being a bruised right eye, bruising on his cheekbone, and a 2.5 cm cut to below his eyelid.
Some history in relation to the appellant is required because when he was an infant he was unfortunately severely assaulted by his father to such an extent that his skull was fractured and a plate remains in his skull. He suffered a brain injury as a result of this assault. This has affected him in various ways, and in particular has led to him not being able to control his emotions.
At the time of this offence, he was suffering from a mental illness in the nature of a paranoid psychosis, and was not receiving proper treatment. Fortunately treatment has now become effective and he is taking medication.
The learned sentencing Magistrate described this offence as, “a serious one”. The appellant has submitted that it was not serious and that the offence should have been regarded as being at the lower end of the scale because it was not premeditated, it was spontaneous, he was upset and thought he was being treated unfairly, he had previously been the victim of a sexual assault and he found the whole process of the strip search traumatic, he was mentally unwell at the time, and he had suffered serious brain damage from the time he was a baby.
In those circumstances, it was submitted before me, that if any term of imprisonment was warranted, the length of twelve months was manifestly excessive given the circumstances as described.
I was asked also to take into account that following the incident, once the appellant was subdued, he was then subjected to what was described to me as humiliating treatment in that he was placed in a padded cell left naked lying face-down on the floor with his hands and ankles handcuffed for approximately two hours.
Following that, he was kept in G Division. I have been informed by Mr Muscat, counsel for the respondent, that Mr Davis spent the period between the 6^th of November 2002 and the 31^st of December 2002 in G Division pursuant to s36(2)(d) of the Correctional Services Act 1982 (SA) for his assault on the prison officer.
Although the learned sentencing Magistrate said that, “the appellant had already received, as a result of being confined in G Division, a significant amount of punishment” [at 8] of his reasons, it was submitted that he effectively gave no discount or reduction for that aspect.
There was some argument about how much account should be taken of the time spent by the appellant in G Division. It was suggested that Higgins v Fricker (1992) 63 A Crim R 473 and R v Liddy No.2 (2002) 84 SASR 231 support the notion that the time spent in G Division should not be given too much prominence in sentencing considerations. But Mr Katsaras, counsel for the appellant, urged that the decision in R v Priestley [2002] SASC 438 left the matter open. It seems to me that it probably did leave the matter open, but nevertheless the views expressed tend to indicate that there should be a reduction in sentence.
In any event, the fact is that in this particular matter the learned Magistrate said he did take account of the time that the appellant spent in G Division as is apparent from the sentencing remarks referred to earlier.
In considering whether the sentence of imprisonment imposed is manifestly excessive, I follow the matters set out by King CJ in R v Morse (1979) 23 SASR 98 (at 99) as follows:
“1.     The maximum sentence for the crime;
2.     The standards of sentence customarily imposed for the crime;
3.The place at which the criminal conduct occupies in the scale of seriousness for crimes of that type; and
4.     The personal circumstances of the offender.”
It is submitted by the respondent that the maximum penalty, being five years imprisonment, means that the twelve months imposed by the learned Magistrate is not manifestly excessive, and in particular, having regard to the late time at which the guilty plea was entered.
Perhaps more importantly, it was submitted that there is a clear need to protect prison officers, and that as a matter of general deterrence, any sentence must act as a deterrent to other prisoners. See Higgins v Fricker and O’Neil v Police referred to earlier.
The appellant has significant antecedents which include a history of violence, and he has on three previous occasions assaulted prison officers and been sentenced to terms of imprisonment. The most recent of these offences were in August and September 2001 when a head sentence of seven months imprisonment was imposed for both offences with an increase in the non-parole period of three months. The appellant was warned by Besanko J on that occasion that any further unlawful aggressive behaviour was likely to result in lengthier extensions of the non-parole period.
There is no discretion not to increase an existing non-parole period pursuant to that section. See Heal v Police (1999) 75 SASR 331 and R v Shepperbottom (2001) 212 LSJS 486.
Having fully considered the submissions made by counsel on both sides, it is my view that the term of imprisonment imposed in all of the circumstances was manifestly excessive, but in view of the record of the appellant, I agree that some term of imprisonment was warranted. In my view, six months imprisonment was appropriate, and I would extend the non-parole period by twelve weeks.
The order therefore is that the appeal is allowed and the sentence of twelve months imprisonment is reduced to a period of six months.
I further order that pursuant to s32(5)(b) of the Criminal Law (Sentencing) Act 1988 SA, the non-parole period be extended by twelve weeks.