DOKOWICZ v Police - [2008] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DOKOWICZ v POLICE
[2008] SASC 154
Judgment of The Honourable Justice Nyland
13 June 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Appeal against sentence - plea of guilty to charge of assault - faeces thrown at victim in public place - whether penalty mainfestly excessive - whether magistrate took into account appellant's history of schizophrenia - whether s 19C(1) Criminal Law (Sentencing) Act 1988 applied - medical evidence did not provide any link between appellant's mental disability and commission of offence - circumstances of offending serious - magistrate took into account appellant's mental health and progress with rehabilitation in exercising discretion to suspend sentence - no error demonstrated - appeal dismissed.
Criminal Law (Sentencing) Act 1988 ss 3(1), 10, 11 and 19C(1); Criminal Law Consolidation Act 1935 s 39(1); Summary Offences Act 1953 s 23(2), referred to.
R v Wiskich (2000) 207 LSJS 431, applied.

DOKOWICZ v POLICE
[2008] SASC 154
Magistrates Appeal
NYLAND J:
Introduction

This is an appeal against a sentence imposed by a stipendiary magistrate sitting in the Magistrates Court at Elizabeth on 9 November 2007. The appellant was charged on complaint that on 3 March 2006 at Parafield Gardens, he assaulted K, contrary to the provisions of s 39(1) of the Criminal Law Consolidation Act 1935. He was further charged with wilfully performing a grossly indecent act in a public place, namely, on a TransAdelaide passenger train, contrary to the provisions of s 23(2) of the Summary Offences Act 1953.
When the matter was called on for hearing, counsel for the appellant informed the magistrate that the appellant would plead guilty to the charge of assault, as a result of which the magistrate dismissed the charge of gross indecency. The appellant then entered a plea of guilty to the charge of assault. Thereafter submissions were made by the police prosecutor and defence counsel, Mr Koehn. Mr Koehn was also counsel for the appellant on the hearing of the appeal.
Personal history of appellant
In the course of submissions, Mr Koehn referred to a psychiatric report of Dr Michael Schirripa and Dr Narain Nambiar, forensic psychiatrists, dated 4 October 2007. They had also provided an earlier report dated 9 August 2007. Both reports were ordered by the court but that of 4 October 2007 was particularly concerned with the issue of the mental competence of the appellant to commit the alleged offences. That report concluded that although the appellant had a diagnosis of schizophrenia, there was no evidence to link that illness to the commission of the offences. There are, however, some aspects of the report which give an insight into the circumstances in which the offending occurred. It appears from the report that the appellant has suffered from serious mental illness since the age of 16. He apparently had a positive childhood with no developmental delays, traumas or problems and enjoyed the benefit of supportive parents. He was, however, seriously assaulted when he was a teenager. This caused a great deal of trauma for a continuing period of time, resulting in nightmares and distress, a likely precipitant of his later mental illness. His symptoms became progressively psychotic in nature and he began to experience delusions and hallucinations. Despite functioning at an average level academically at school, the assault also led to a decline in his scholastic ability. He eventually left school in year 11 (having completed year 10).
The appellant first consumed alcohol at the age of 14 and developed a pattern of alcohol consumption consistent with binge drinking by the age of 16. The appellant began consuming cannabis on a regular basis as a teenager, causing periodic psychotic symptoms. He first used amphetamines as a 17 year old, which led to significant psychotic symptoms. The appellant was first diagnosed with schizophrenia in 2002 during an admission to the Women’s and Children’s Hospital. Thereafter, the appellant was intermittently treated in hospital for relapses of psychosis, during which time, when acutely unwell, he experienced irrational thoughts and also “heard voices”. The appellant asserted that his illness was responsive to stress levels, and according to psychiatric reports, his alcohol and illicit substance use were a major factor in the exacerbation of such psychotic symptoms.
Although the appellant had been charged with some minor offences as a juvenile this was his first significant offence as an adult.
The circumstances of the offending
At about 8.00 pm on the day in question, K was a passenger on a Gawler line train heading south towards Adelaide. The appellant was also a passenger. He was carrying a baseball cap which was filled with faeces. He approached K and slapped her in the face with the baseball cap. He then continued to walk through the carriage and sat down. K said that the hat and faeces hit the side of her face and mouth. As a result her face was sore and there was a small lump on the inside of her lip on the right-hand side of her face which required medical treatment.
The incident happened suddenly and without warning. Although the appellant accepts that he committed the assault, he apparently has little memory of it. It was, however, a serious assault which caused K a great deal of humiliation and embarrassment, quite apart from the physical injury. As she said in her victim impact statement:
I was in absolute shock … terrified, extremely embarrassed and humiliated …I feel so violated … part of me was destroyed.
She continues to have ongoing concerns and is afraid that people will recognise her. She has had a multitude of tests done for HIV and the like, in addition to seeing a psychologist.
Conduct of the appellant post the offence
Mr Koehn told the magistrate that following the commission of this offence, the appellant had successfully completed a rehabilitation program at Karobran New Life Centre near Naracoorte, and had regular psychiatric consultations. The program at Karobran involved intensive counselling and was focused on drug and alcohol rehabilitation and learning basic life skills. After completing the program, the appellant moved into rental premises at Morphett Vale where he continues to reside. The accommodation was arranged by his mother who has been and is of considerable support to him. She keeps in contact with the appellant on a daily basis.
It appears that since the commission of this offence, there has been no further offending and the appellant’s situation has improved considerably. He is managing well and his mental health is stable. He is subject to a community treatment order, is receiving medication regularly and has regular contact with mental health services in the southern suburbs of the Adelaide metropolitan area.
Sentencing remarks
The learned magistrate in the course of his sentencing remarks referred to the appellant’s mental health problems and his reliance upon his mother for support. He also referred to the matters set out in the medical report as to his mental health history. He determined, however, that a sentence of imprisonment was appropriate. After allowing a credit of 30% for the appellant’s plea of guilty, he sentenced the appellant to eight months imprisonment. Having regard to the appellant’s lack of previous convictions, his history of mental illness and circumstances generally, the magistrate found that there were good reasons to suspend the sentence and released the appellant on a bond to be of good behaviour for a period of 18 months, on condition that he be under the supervision of a Community Corrections officer and obey the lawful directions of that officer with particular reference to continuing attendance for psychiatric treatment and programs for personal development and counselling as to victim awareness.
Grounds of appeal
The grounds of appeal are as follows:
1.A term of imprisonment of eight months was manifestly excessive in all the circumstances.
2.The sentencing magistrate erred in failing to consider whether to exercise his powers under s 19C(1) of the Sentencing Act, 1988.
3.The sentencing magistrate erred in failing to give adequate weight to the appellant’s participation in an intervention program after the commission of the offence for which he was sentenced.
Ground 1
The appellant’s argument with respect to this ground focused on s 11 of the Sentencing Act which in effect provides that imprisonment is a sentence of last resort except in certain circumstances, the criteria for which it was argued were not fulfilled in this case. The appellant also relied on the provisions of s 10 of the Sentencing Act which required the magistrate to take into account such matters as the appellant’s mental health[1], the steps taken towards his rehabilitation[2], the effect of imprisonment on that rehabilitation, and lack of previous offending as an adult[3].
[1]    s 10(1)(l)
[2]    s 10(1)(m)
[3]    s 10(1)(o)
On the face of it, the sentence imposed was reasonably severe. The maximum penalty for this offence is two years imprisonment, but the starting point for the sentence imposed, before the allowance for the discount, was almost 12 months. This was, however, a serious offence, consisting of an unprovoked assault upon a stranger in a public place, in circumstances which the magistrate appropriately described as “disgusting”. The assault, not surprisingly, has had a significant impact upon the victim. Although the appellant suffers from a mental illness which to some extent explains the offending conduct, there was no evidence before the magistrate of a direct causal connection between the appellant’s health problems and the commission of this offence. There is nothing to suggest that the magistrate failed to give appropriate weight to the matters set out in ss 10 and 11 of the Sentencing Act. This was a case in which questions of both personal and general deterrence had to be given significant weight.
The learned magistrate clearly thought that the issues relating to the appellant’s mental health problems, the progress he had made with respect to his rehabilitation following the offence, and the impact of a sentence of imprisonment upon him were a appropriately taken into account when reaching a decision with respect to the suspension of the sentence. I do not consider that he was in error in taking that approach.
Grounds 2 and 3
These two grounds are concerned with s 19C(1) of the Criminal Law (Sentencing) Act 1988 and the weight to be given to the appellant’s participation in an intervention program: They can, for convenience, be dealt with together.
Section 19C(1) of the Sentencing Act provides:
19C - Mental impairment
(1)A court that finds a defendant guilty of a summary or minor indictable offence may release the defendant without conviction or penalty if satisfied -
(a) that the defendant -
(i)suffers from a mental impairment that explains and extenuates, at least to some extent, the conduct that forms the subject matter of the offence; and
(ii)has completed, or is participating to a satisfactory extent in, an intervention program; and
(iii)recognises that he or she suffers from the mental impairment and is making a conscientious attempt to overcome behavioural problems associated with it; and
(b) that the release of the defendant under this subsection would not involve an unacceptable risk to the safety of a particular person or the community.
Mental impairment is defined in sub-s (5) as:
(5) In this section -
…
mental impairment means an impaired intellectual or mental function resulting from a mental illness, an intellectual disability, a personality disorder, or a brain injury or neurological disorder (including dementia).
Mr Koehn argued that the appellant met the criteria for the application of s 19C on the basis that:
(a)He was found guilty upon his plea of guilty of a summary offence.
(b)He clearly suffered a mental impairment at the time of sentencing.
(c)The mental impairment explained or extenuated to some extent the offending conduct.
(d)He completed an intervention program, ie the rehabilitation program undertaken at the Karobran New Life Centre.
(e)At the time of sentencing he had insight into the fact that he suffered a mental impairment as appeared from para (6) of the psychiatric report dated 9 August 2007.
(f)By attending Karobran and continuing to restrain from drugs and alcohol and being compliant with the treatment he had clearly been making a conscious attempt to overcome behavioural problems associated with his mental impairment.
Mr Koehn argued that the appellant’s efforts at rehabilitation, his lack of significant adult prior offending and his lack of subsequent offending gave no cause to think that his release would cause an unacceptable risk for the safety of a particular person or the community.
The magistrate did not refer to s 19C in his sentencing remarks, but he was obliged to weigh up all sentencing options. Mr Koehn argued that the magistrate’s failure to mention the section suggested that the magistrate had not given any thought to its application, nor had he given sufficient weight to the appellant’s participation in the rehabilitation program.
The sentence imposed in this case was imposed by an experienced magistrate. The failure to refer to s 19C does not mean that he did not have regard to that or any of the other matters he was required to take into account when fashioning a suitable sentence for the appellant.
There is no doubt that the appellant suffers from a serious mental illness and that was a relevant matter to take into account. The medical reports provided to the magistrate, however, do not establish any connection between the appellant’s mental state and the commission of the offence. Dr Nambiar in his report dated 4 October, 2007 said:
Even though [the appellant] does have a diagnosis of schizophrenia I cannot find any evidence that links his illness to the current offences. There is no evidence that he was acting under the influence of any delusions or hallucinations at the time of the offences. It is far more likely that, on the balance of probabilities, he was intoxicated on alcohol at the time of the offences.
In view of that opinion it would have been inappropriate for the magistrate to have recourse to s 19C as a sentencing option. In R v Wiskich[4] Martin J conducted an extensive review of the approaches to sentencing in cases of mental illness and concluded:
[4] (2000) 207 LSJS 432
The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender's thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
It is commendable that the appellant has since made good progress with his rehabilitation as a result of his attendance at Karobran New Life Centre. That was, however, a matter which the learned magistrate clearly bore in mind when exercising his discretion to suspend the sentence for an offence which might have otherwise merited an immediate custodial sentence. The magistrate allowed the appellant a generous discount to reflect his plea of guilty which suggests that the magistrate was mindful of the appellant’s contrition for his misconduct.
No error has been demonstrated in the approach taken by the learned magistrate. The appeal is therefore dismissed.