Ettridge v Police
[2022] SASC 96
•2 September 2022
Supreme Court of South Australia
(Magistrates Appeal: Criminal)
ETTRIDGE v POLICE
[2022] SASC 96
Judgment of the Honourable Justice McDonald
2 September 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Appeal against a sentence imposed by a Magistrate.
On 16 November 2021, the appellant was sentenced for two counts of aggravated assault, three counts of assault of a prescribed emergency worker, three counts of property damage, two counts of disorderly behaviour, assault and breach of bail committed across a period of approximately one month in late 2020 for which he had entered pleas of guilty. After imposing separate sentences, the Magistrate made a reduction on account of proportionality and totality and ultimately imposed a single head sentence for all of the offending of 12 months imprisonment. A non-parole period of four months and 27 days was fixed. Whilst there are five grounds of appeal, they all underpin a complaint that the Magistrate erred in not exercising his discretion to suspend the term of imprisonment or order it be served on home detention.
The respondent argues that the sentence was not manifestly excessive, nor did the Magistrate make the alleged process errors, and the appeal should be dismissed.
Held:
1.In light of the seriousness of the offending and having regard to all of the appellant’s personal circumstances, it cannot be said that the imposition of a term of immediate imprisonment was outside of the permissible range of sentences available to the Magistrate.
2. None of the grounds of appeal have been established.
3. The appeal is dismissed.
Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20AA(3), s 85(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 13; Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 11, s 29, s 69, s 71; Summary Offences Act 1953 (SA) s 7(1)(a); Supreme Court Criminal Rules 2014 (SA) r 104V(1)(a), referred to.
Teasdale v Police [2022] SASC 64; R v Dell & Dell (2016) 126 SASR 571; Pateras v The Queen [2021] SASCA 107, applied.
Dinsdale v The Queen (2000) 202 CLR 321; Lowndes v The Queen (1999) 195 CLR 665; R v Mark [2019] SASCFC 48; The Queen v Morse (1979) 23 SASR 98; Wittwer v Police [2004] SASC 226, discussed.
ETTRIDGE v POLICE
[2022] SASC 96Magistrates Appeal: Criminal
McDONALD J.
Introduction
This is an appeal against a sentence imposed in the Magistrates Court on 16 November 2021. The appellant pleaded guilty to two counts of aggravated assault,[1] three counts of assault of a prescribed emergency worker,[2] three counts of property damage,[3] two counts of disorderly behaviour,[4] assault,[5] and breach of bail.[6] He received a head sentence of 12 months with a “lower than usual”[7] non-parole period of four months and 27 days. These offences involved five victims and occurred in six separate contexts or episodes. Whilst there are five grounds of appeal, they are all underpinned by a complaint that the Magistrate erred in not exercising his discretion to suspend the term of imprisonment or order that the sentence be served on home detention.
Circumstances of the offending
[1] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA).
[4] Contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA).
[5] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[6] Contrary to s 17(1) of the Bail Act 1985 (SA).
[7] Sentencing Remarks at 6.
14 October 2020
On 14 October 2020, the appellant attended an Australia Post office to collect three packages. On his arrival, he was told by an employee that he only had sufficient identification to collect one of the packages. Upon hearing this, the appellant became upset and abusive and proceeded to jump on to the counter, breaking two computer screens and kicking over a display, causing $370.00 worth of damage.
16 October 2020
The appellant was granted bail in respect of the 14 October 2020 offences. One of the conditions was that he reside at a nominated address which he provided to the police for the purpose of the bail agreement. However, on 16 October 2020, when spoken to by police, the appellant admitted that he had not been living at that address. This resulted in him being charged with breaching bail.
26 October 2020
On 26 October 2020, the appellant committed the offences of assault, property damage and disorderly behaviour. The victim of these charges was a Centrelink employee who worked at Status Employment Services in Elizabeth (‘Status Employment’). She had been working with the appellant in relation to his Centrelink payments. On this date, the victim telephoned the appellant to inform him that the payments he had been receiving would be cut off due to his non-attendance at scheduled appointments. The appellant proceeded to become verbally aggressive and called the victim “a cunt”, before threatening to come to the office and “gut her”. This was particularly distressing to the victim given that at this time she was 16 weeks pregnant.
Following these threats, the victim immediately left her workplace to report the appellant to the police. Whilst she was away, the appellant attended at the office armed with a tyre iron. Using that weapon, the appellant damaged seven computer monitors, two keyboards, a telephone, a door handle and a security alarm panel whilst yelling out “start my payments again”. On her way back to the office, the victim received a call from one of her co-workers who warned her that the appellant was at her workplace with a tyre iron. This undoubtedly added to the distress that the victim had experienced as a consequence of the threatening phone call.
The appellant was arrested for these offences three days later. At that time, he admitted the conduct and acknowledged that he had caused the victim to fear that she may be assaulted. However, he went on to say that he did not regret his actions as he had been very angry at the time.[8]
[8] Magistrates Court Transcript 3.
14 November 2020
On 14 November 2020, the appellant committed two aggravated assaults and two assaults on prescribed emergency workers. The offending can be divided into two separate episodes.
The first related to the appellant’s former partner, who at the time resided with him. They had been in a relationship for two years. On this date, the appellant and the victim had an argument in their bedroom which culminated in the appellant punching her in the face, causing her lower lip to bleed. This constituted count one, with the aggravating circumstance being the fact that they were in a domestic relationship. The appellant left the bedroom, returning with a metal broom handle. He then used the broom handle to strike the victim across her body three or four times. A neighbour could hear screaming coming from inside the house and called the police. The police attended the scene and asked the appellant, when he answered the door, whether there was a woman inside the house. The appellant replied that there was no one in the house. The police did not believe the appellant and entered the house, where they found the victim with obvious injuries. The appellant was taken into custody.
Episode two occurred once the appellant was in custody. Whilst in a holding cell, the appellant behaved in a belligerent and antagonistic fashion. He urinated on his clothing, removed his trousers and aggressively threw them from a distance of under two metres at a police officer. The trousers hit the police officer across his face and chest. This conduct constitutes count three. Another police officer then became involved and told the appellant that he was going to be charged with assaulting a prescribed worker. The appellant responded by spitting at the police officer. The police officer managed to avoid the spit by moving out of the way.
The appellant also damaged the police cell for which he was charged with property damage.
16 November 2020
On 16 November 2020, whilst still in custody, the appellant committed a further assault against a prescribed worker. The appellant had been taken to Lyell McEwin Hospital by the police. Whilst there, he asked a police officer whether he could have a cigarette. After being told he could not, the appellant threw a telephone at the officer. The police officer managed to avoid being struck by the telephone by moving out of the way.
The Magistrate’s reasoning
In sentencing the appellant, the Magistrate had to strike a balance between giving appropriate weight to the appellant’s personal circumstances and the seriousness of the offences. The Magistrate took into account the fact that the appellant only had prior convictions for the relatively minor offences. These included being on a premises without lawful excuse and carrying an offensive weapon. Further to this, that the appellant had grown up in an environment of familial domestic violence and alcohol abuse. The Magistrate placed particular emphasis on the fact that just prior to the offending, the appellant had been made aware that his daughter had been sexually assaulted by his son. The Magistrate acknowledged that this sent the appellant into a “downwards spiral” of alcohol and amphetamines abuse, which exacerbated his underlying depression and caused him to become mentally unstable.
The sentence
The Magistrate put together a carefully crafted sentence, endeavouring to give weight to the offences that were the most serious. The sentences imposed for the various offences are set out in the table below that I have conveniently adopted from the appellant’s outline of argument.
14 October 2020
Count Offence Maximum Penalty Penalty imposed Discount Applied Maximum available discount 1 Property Damage Imprisonment for 10 years Conviction without further penalty N/A 30% 2 Disorderly Behaviour $1,250 or imprisonment for 3 months Conviction without further penalty N/A 30%
Count Offence Maximum Penalty Penalty imposed Discount Applied Maximum available discount 1 Breach of Bail $10,000 or imprisonment for 10 years Conviction without further penalty N/A 40% 26 October 2020
Count Offence Maximum Penalty Penalty imposed Discount Applied Maximum available discount 1
Assault
Imprisonment for 2 years
6 months imprisonment. Reduced to 4 months and 27 days.
30%
30%
2 Disorderly Behaviour $1,250 or imprisonment for 3 months 1 month imprisonment
Section 26 concurrency with count 3. Cumulative upon the penalty for count 1.4 months and 27 days.
30% 30% 3 Property Damage Imprisonment for 10 years 1 month imprisonment
Section 26 concurrency with count 3.
1 month imprisonment
Section 26 concurrency with count 3. 4 months and 27 days.30% 30% 14 November 2020
Count Offence Maximum Penalty Penalty imposed Discount Applied Maximum available discount 1 Aggravated Assault Imprisonment for 3 years 12 months reduced to 8 months and 16 days 30% 30% 2 Aggravated Assault Imprisonment for 4 years 12 months reduced to 8 months and 16 days 30% 30% 3 Assault a prescribed emergency worker acting in the course of official duties Imprisonment for 5 years 1 month to be served cumulatively upon the penalty for count 4. Reduced by 30% to 2 months and 3 days.
To be served cumulatively upon the sentence for counts 1 and 2.
30% 30% 4 Assault a prescribed emergency worker acting in the course of official duties Imprisonment for 5 years. 2 months served cumulatively upon the penalty for count 3. Reduced by 30% 2 months and three days. To be served cumulatively upon the sentence for counts 1 and 2. 30% 30% 16 November 2020
Count Offence Maximum Penalty Penalty imposed Discount Applied Maximum available discount 1 Assault a prescribed emergency worker acting in the course of official duties. Imprisonment for 5 years. 1 month reduced to 21 days. 30% 30% 14 November 2020
Count Offence Maximum Penalty Penalty imposed Discount Applied Maximum available discount 1 Property Damage Imprisonment for 10 years Conviction without penalty N/A 30% Notice of appeal
As this is an appeal to a single judge of the Supreme Court against the sentence of a Magistrate, the appeal is of right pursuant to s 42(1) and s 42(2)(b) of the Magistrates Court Act 1991 (SA). Specifically, the appellant is seeking that the head sentence of 12 months and the non-parole period of four months and 27 days imprisonment be set aside and the Court re-sentence the appellant.
The original Notice of Appeal contained only one ground, that is that the sentence is manifestly excessive. Specifically, the appellant contended that:
1.1The Learned Sentencing Magistrate erred by declining to suspend the sentence of imprisonment or have the sentence of imprisonment served on home detention.
1.2The Learned Sentencing Magistrate did not notify the parties during submissions that he would decline to suspend the appellant’s sentence. The prosecution did not oppose the suspension of the appellant’s sentence.
1.3.The Learned Sentencing Magistrate failed to consider these alternative sentencing options when counsel requested the court consider home detention or a remand pursuant to s 29 of the Sentencing Act 2017 (SA).
Counsel for the appellant subsequently abandoned ground 1.3 on the basis that it was unarguable. Given that ground 1.2 was directed towards procedural fairness rather than a particular of manifest inadequacy, it was redrafted as a separate ground of appeal - ground 2. Counsel for the appellant also applied for leave to add four additional grounds. These redrafted grounds are now:
Ground 2
The Learned Sentencing Magistrate erred in failing to accord the appellant procedural fairness during the sentencing process in that the appellant was not put on notice that the Court would act other than to suspend any term of imprisonment imposed.
Ground 3
The Learned Sentencing Magistrate erred in failing to apply the correct test to the determination of whether or not the sentence of imprisonment ought to have been made the subject of a home detention order.
Ground 3A
In the alternative to Ground 3, the Learned Sentencing Magistrate erred in failing to provide adequate reasons for declining to order that the sentence be served on home detention.
Ground 4
The Learned Sentencing Magistrate erred by taking into account an irrelevant consideration when exercising the sentencing discretion, namely, that the appellant failed to complete the abuse prevention program.
Ground 5
The Learned Sentencing Magistrate erred in calculating the total term of imprisonment as being 17 months and three days.
The respondent did not oppose leave being granted to amend the Notice of Appeal to add the additional grounds.
I grant leave for the Notice to be amended.
Extension of time
The applicant was sentenced on 16 November 2021. The Notice of Appeal was filed on 14 December 2021. The rules surrounding the institution of an appeal of this nature are set out in Chapter 12A of the Supreme Court Criminal Rules 2014 (SA) (‘Criminal Rules’). Pursuant to r 104G(1) of the Criminal Rules an appeal must be instituted within 21 days after the date of the judgement, order or decision the subject of the appeal. It follows that the Notice was filed seven days out of time and consequently the appellant requires an extension of time. It was put to me that the delay was a consequence of an oversight on the part of the appellant’s solicitor who, at the time, had conduct of the matter. The respondent does not oppose an extension of time on the basis that they are not prejudiced.
In circumstances where the appeal was filed one week out of time, and it is of no prejudice to the respondent, I grant an extension of time.
Principles on Appeal
This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and chapter 12A of the Criminal Rules. Appeals from a Magistrate to a single Judge of the Supreme Court are by way of rehearing pursuant to r 104V(1)(a) of the Criminal Rules.
In order to interfere with the exercise of a sentencing discretion, there must be a demonstrated error of the kind described in House v The King.[9] The approach to be adopted was summarised by White J in Wittwer v Police:[10]
The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or it if has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly: House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324 – 325 [3] – [4]; Naera v Police (1995) 184 LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60.
[9] (1936) 55 CLR 499.
[10] [2004] SASC 226 at [16].
The Court will not interfere merely because it would have exercised the sentencing discretion in a different way to the sentencing Magistrate.[11]
[11] R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665 at [15].
It is the appellant’s submission that the sentence imposed by the Magistrate was infected by both outcome and process error. The approach to be adopted by an appellate court in relation to each type of error was conveniently summarised by Stanley J in R v Mark:[12]
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
(Footnotes omitted)
[12] [2019] SASCFC 48 at [18].
In Lowndes v The Queen, the Court observed that:[13]
… a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. … The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
Grounds of appeal
[13] Lowndes v The Queen (1999) 195 CLR 665 at [15].
Ground 1
Particulars
1.1The Learned Sentencing Magistrate erred by declining to suspend the sentence of imprisonment or have the sentence of imprisonment served on home detention.
Although the particulars for this ground relate to the exercise of the Magistrate’s decision to suspend the term of imprisonment or order that it be served on home detention, during submissions, counsel for the appellant also appeared to submit that the sentence was too long, particularly that portion attributed to the conduct towards the Centrelink employee.[14] On that basis, I will assume that the appellant takes issue with both the duration of the sentence and the determination by the Magistrate to impose an immediate custodial sentence, even though it is not expressly the subject of the grounds of appeal.
Length of the sentence
[14] Magistrates Court Transcript 3.
When it is submitted that a sentence is manifestly excessive, it is not sufficient for an appellate court to merely conclude that it would have come to a different decision from that reached by the original sentencing judge, or that the sentence imposed is markedly different from sentences imposed in other cases.[15] Rather, for a sentence to be manifestly excessive, it must be established that the sentencing judge came to a decision that was unreasonable or plainly unjust. To put it another way, the sentence must be “outside” the permissible ranges of sentences for the offender and the offence.[16]
[15] Bugmy v The Queen (2013) 249 CLR 571 at [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[16] Kentwell v The Queen (2014) 252 CLR 601 at [35] (French CJ, Hayne, Bell and Keane JJ).
In The Queen v Morse,[17] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. These include the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.
[17] (1979) 23 SASR 98 at 99.
In that context, in R v Mark, Stanley J made the following observation:[18]
Manifest excess is a conclusion. Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, as the plurality said in Wong v The Queen:
“[I]intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”
As the High Court said in Hili v The Queen, “that is a conclusion that does not admit of lengthy exposition”.
(Footnotes omitted)
[18] R v Mark [2019] SASCFC 48 at [20]-[21].
In considering the sentence imposed by the Magistrate, it is instructive to consider the method by which his Honour arrived at the ultimate sentence.
In respect of the first three offences of property damage, disorderly behaviour and breach of bail (committed between 14 and 16 October 2020), the Magistrate convicted the appellant but imposed no further penalty. This was undoubtedly intended to reflect that these offences were the first in time and were less serious than those that followed. Having said that, the property damage was a significant offence of its type.
For the 26 October 2020 offences, the Magistrate imposed a sentence of four months and 27 days imprisonment for the assault, one month imprisonment for the offence of disorderly behaviour, and one month imprisonment for the offence of property damage. The latter two sentences were to be served concurrently but cumulative upon the sentence for the assault. The reasoning behind the approach adopted by the Magistrate is plain. This episode involved two very serious incursions into criminal conduct. The first involved an aggressive verbal assault, made all the more serious by the appellant’s preparedness to act on it by attending at Status Employment and once there, behaving in a violent and erratic manner causing significant damage to property. In such circumstances, it is not reasonably arguable that the imposed sentence was excessive.
Counsel for the appellant made a discrete argument that involved a comparison of the length of the sentence for the offence of assaulting a prescribed worker, in which the appellant spat at a police officer, with the verbal assault of the Centrelink employee. It was submitted that given the serious nature of the spitting assault on the police officer, a comparison of the sentence imposed for that offence with the verbal assault of the Centrelink employee demonstrates that the Magistrate commenced with an “incredibly elevated starting point”,[19] and resultantly, the Magistrate erred in arriving at the sentence that was imposed in relation to the latter.
[19] T37.
There is no doubt that spitting on or at a police officer is a serious offence. The Courts have repeatedly reinforced that such offending, particularly involving a police officer, should not be treated lightly.[20]
[20] Fischetto v Police [2011] SASC 24.
In Police v Mason,[21] Kelly J considered an appeal against sentence that involved, amongst other offences, spitting at a police officer. Her Honour made the following observation:
Courts in recent years have taken a very serious view of offences which involve spitting. Not only is it a particularly degrading form of assault but as we now know it carries a serious risk of transmitting a number of infectious diseases.
General and personal deterrence must be important factors when sentencing for assaults of this nature. A review of the authorities in recent years reveals that sentences for offences involving spitting and similar forms of assault can vary greatly, attracting as little as two weeks imprisonment and as much as nine months imprisonment. There has been a trend in recent years for courts to impose immediate custodial sentences for offences of spitting, however, there appear to be many instances where judicial officers have found good reason to suspend. It all depends, it seems, on the overall circumstances of the offence and the offender, particularly the latter.
(Footnote omitted)
[21] [2012] SASC 22 at [13]-[14].
That is not, however, the end of the matter. There can be varying degrees of severity of spitting offences, just as there can be varying degrees of severity of verbal assaults. Minds may differ as to how you would precisely weigh or compare the current two examples of these offences. However, it cannot be suggested that it was not open to the Magistrate to evaluate and measure the gravity of the offences in the manner in which he did.
The threat made to the Centrelink employee was particularly serious given the appellant’s relationship with her, the circumstances in which the threats were made, the terms of the threats, the fact that she was 16 weeks pregnant at the time, and the profound impact that the threat clearly had on her. Submissions were made on the appeal about whether it had been accepted that the appellant knew that the Centrelink employee was pregnant. Ultimately it did not matter in that the Magistrate sentenced on the basis that the Centrelink employee “felt that [the appellant] must have been aware that she was pregnant”.[22] In one sense, it is of no consequence that the appellant may not have been aware that she was pregnant, given that an offender takes his victim as he finds them. There was also no dispute about the impact that the offence had on the Centrelink employee. An impact that was made all the more severe by her becoming aware that these had not been idle threats. No doubt playing on her mind in the aftermath of these events would have been the question of what may have eventuated had she not left the office to attend the police station.
[22] Sentencing Remarks at 2.
The Magistrate also had before him a victim impact statement that had been prepared by the Centrelink employee. His Honour described the impact set out in that document in the following terms:[23]
…Unsurprisingly she records the significant effect that your threat has had on her, and by threat it is encompassed within your assault.
She had to go on maternity leave, earlier than she actually had paid leave for, and this has resulted in the loss of wages to her, which she totals is something over $7,000. She also experienced significant anxiety during her pregnancy that required her to have extra care and that she is now extremely fearful of returning to work.
[23] Sentencing Remarks at 2.
In my view there is no merit to the submission that a comparison of these two sentences evidences any form of error by the Magistrate.
Turning back to the overall approach of the Magistrate in constructing the sentence that was imposed. The offences that occurred on 14 November 2020 were all offences committed on victims who fell within a particularly vulnerable category – a domestic partner and police officers.
I will deal firstly with the counts of aggravated assault that the appellant committed against his former partner. These offences were aggravated in two ways, firstly by virtue of the relationship, and in relation to count two, by the introduction and use of the weapon. They demonstrate that not only was the appellant someone who was prepared to lash out and vent his frustration in a public forum, but also behind the closed doors of his family home. For these two offences, the Magistrate imposed a single sentence of eight months and 16 days imprisonment. The seriousness of these offences were such that this sentence could not be said to fall outside of the range of appropriate penalties for offences of this type. That is particularly so when regard is had to the fact that after the initial assault, the appellant chose to leave the room and then return with a weapon; a metal broom handle, presumably to inflict greater pain.
For the offence of assaulting a prescribed emergency worker that involved throwing his trousers at the police officer, the appellant was sentenced to one month imprisonment and for the offence that involved the spitting at the police officer, the appellant was sentenced to serve two months imprisonment. Each of these sentences was to be served cumulatively. In my view, no complaint can be made about those sentences, either separately or in combination.
The remaining offence that arose as a consequence of the events of 14 November 2020 was damaging property. That offence related to damage that the appellant had caused to his police cell. For that offence, the appellant was convicted with no further penalty.
The final offence for which the appellant came to be sentenced, was a further count of assaulting a prescribed emergency worker on 16 November 2020. This involved throwing a mobile telephone at a police officer at the Lyell McEwin Hospital. For this offence, the Magistrate sentenced the appellant to 21 days imprisonment. Given that this was the third offence of its type that the appellant had committed over three days, it cannot be said that this sentence fell outside of the sentencing discretion.
The total sentence arrived at by the Magistrate was 16 months and seven days.[24] The Magistrate reduced that sentence to 12 months. He did so on the following basis:
The matters put to me in mitigation are powerful. They militate in favour of mercy being shown to you, therefore [in] relation to the term of imprisonment that I have imposed of 17 months and 3 days I have exercised the principle of proportion, the principles of proportionality and totality, mindful of the fact that you have been of good behaviour for the last year and that these are, as I have said, matters that you have committed in a month long period of crisis and I reduce the term of imprisonment to 12 months.
[24] The Magistrate accumulated the sentences to come to a total of 17 months and three days. It is accepted that the Magistrate’s remarks disclose an arithmetical error on the basis that the correct total was 16 months and seven days (if calculated on the basis of a 30 day month) or 16 months and 11 days (if calculated on the basis of a 28 day month). This error is the subject of ground 5 of the appeal.
In my view, to reduce the head sentence to such an extent, in circumstances in which the individual sentences appropriately reflected the gravity of the offending, was a merciful approach. It would seem that it is also not by chance that the Magistrate arrived at a head sentence of 12 months, that being the minimum sentence he could impose that would still enable him to set a non-parole period. I also regard the fixing of a non-parole period of four months and 27 days as similarly merciful given the nature and number of offences for which the appellant was sentenced. It follows that the length of the sentence imposed was not manifestly excessive.
Failure to suspend the sentence or order that the term of imprisonment be served on home detention
The second argument on this ground of appeal is that the Magistrate erred in declining to suspend the sentence of imprisonment or order that it be served on home detention. This complaint is a species of manifest excessiveness.[25] Consequently, the question for this Court is whether the decision fell outside the range of permissible dispositions. As Blue J noted in Teasdale v Police:[26]
On appeal, an outcome error in respect of a decision not to suspend a sentence will only be demonstrated if the appellate court is persuaded that it was not open to the sentencing judge or magistrate to decline to suspend the sentence.
(Footnotes omitted)
[25] R v Lutze (2014) 121 SASR 144 at [49] (Vanstone and Parker JJ) citing Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J).
[26] [2022] SASC 64 at [73].
During sentencing submissions, it was conceded that the imposition of terms of imprisonment was appropriate in the circumstances. This was on that basis that the submission advanced on the appellant’s behalf was, in large part, focused on there being good reasons to suspend any sentence of imprisonment or order the sentence be served on home detention.[27]
[27] Sentencing Remarks at 5.
In his reasons, the Magistrate indicated that he had turned his mind to suspension. After characterising the nature of the offending and reiterating his view that the only appropriate punishment was a term of imprisonment, the Magistrate considered the question of suspension, partial suspension and home detention. His Honour referred to the submissions made about these sentencing options by the appellant’s counsel. However, despite taking those matters into account and noting there were “powerful mitigating factors”,[28] the Magistrate declined to find good reason to suspend the sentence, partially suspend the sentence or order that it be served on home detention.
[28] Sentencing Remarks at 6.
In arriving at this decision, the Magistrate noted that the offending was “simply too serious, too violent and has affected too many people”[29] for any other course than the imposition of an immediate custodial sentence.
[29] Sentencing Remarks at 6.
The Magistrate’s characterisation of the offending was correct, and it follows that it was reasonably open to the Magistrate to decline to suspend the sentence, in whole or in part, or order that it be served on home detention.
Ground 2
Particulars
The Learned Sentencing Magistrate erred in failing to accord the appellant procedural fairness during the sentencing process in that the appellant was not put on notice that the Court would act other than to suspend any term of imprisonment imposed.
The genesis of this issue can be found in the sentencing submissions that were made by the prosecutor in the Magistrates Court. Having set out in some detail the various offences, the prosecutor put to the Court:[30]
It’s prosecution’s position that this offending does warrant a term of imprisonment, notwithstanding the lack of antecedents. I believe my friend will be asking that this should be suspended. I would not be opposed to that.
[30] Magistrates Court Transcript at 3.
The effect of submissions on this topic was that from the point of this concession, the appellant’s counsel appearing on the sentencing submissions laboured under the misapprehension that the Magistrate would suspend any term of imprisonment that was imposed.
I do not accept that submission. No affidavit has been provided from the appellant’s previous counsel, despite the Court granting an adjournment to enable that option to be explored. It is not surprising that no such affidavit has been forthcoming given it is a basic sentencing principle in the criminal law that a judicial officer is not bound by such a concession from the prosecution in imposing a sentence.
Further to that, it is apparent from reading the transcript of the sentencing submissions that the appellant’s previous counsel was alive to the fact that it remained open to the Magistrate to sentence the appellant to an immediate term of imprisonment. After conceding that a sentence of imprisonment was appropriate, at least in relation to the 14 and 16 November 2020 offending, it was in fact to that very issue that counsel’s submissions were directed. The following passages from the transcript make it plain that the appellants previous counsel was well aware that the imposition of a suspended sentence was not a forgone conclusion:[31]
If your Honour accepts our submission concerning suspension, can be adequately addressed in conditions of a bond. …
…
… There is support on more recent times from Mr Thompson in his letter of 27 September. Mr Ettridge has been involved in the Church of Christ. He has the support of Mr Thompson. He volunteers in a program run by the Church of Christ two to three days a week that involves cooking and cleaning. They provide services not only for people with criminal backgrounds but also for the underprivileged and homeless in the Elizabeth area. He’s been undertaking that for about four months. It has given him, in my submission, purpose that he lacked and there is support from Mr Thompson going further in the community. Ultimately, notwithstanding the serious nature of the offences, there is good reason to suspend his sentence. … It would benefit not only him but the community the sentence of imprisonment obviously reflecting the gravity of many of the offences that warrant imprisonment in this matter but balancing general and specific deterrence. Suspending the sentence ultimately promotes his own rehabilitation. … So when your Honour looks at it that way, I submit each of the sentencing principles, both the paramount one and the secondary considerations, are each achieved by the penalty that I’m urging upon your Honour today and the Crown concedes is appropriate.
…
Yes one final matter your Honour and that’s concerning the defendants rehabilitation. If your Honour is not persuaded that good reason exists to suspend the sentence on the basis of the material before you today, then I urge you not to sentence him today and essentially issue a Griffiths remand and place him under strict supervision of corrections to test that responsivity.
…
I accept that. There is always the issue of home detention as well if the court pleases. That address is available.
(Emphasis added)
[31] Magistrates Court Transcript at 10-14.
To my mind there is no ambiguity about these passages of the transcript. It is abundantly clear that the appellant’s previous counsel was doing all that he could to persuade the Magistrate to impose any form of sentence that would not involve an immediate term of imprisonment in a custodial institution.
In those circumstances, I reject the suggestion that there was any procedural unfairness. There is no merit to this ground of appeal.
Ground 3
Particulars
The Learned Sentencing Magistrate erred in failing to apply the correct test to the determination of whether or not the sentence of imprisonment ought to have been made the subject of a home detention order.
Ground 3A
Particulars
In the alternative to Ground 3, the Learned Sentencing Magistrate erred in failing to provide adequate reasons for declining to order that the sentence be served on home detention.
It is convenient to deal with these two grounds together.
The appellant argues that the Magistrate’s sentencing remarks disclose an error in the process that his Honour undertook in determining to decline to order that the appellant serve his sentence on home detention.
Part 2, Division 7 – “Community based custodial sentences” of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) sets out the regime for the imposition of a home detention order. Section 69 of the Sentencing Act sets out the purpose of home detention:
69—Purpose of home detention
(1)The purpose of a home detention order is to allow a court to impose a custodial sentence but direct that the sentence be served on home detention.
(2)The paramount consideration of the court when determining whether to make a home detention order must be to protect the safety of the community (whether as individuals or in general).
Section 71 provides for the circumstances in which a home detention order can be imposed:
71—Home detention orders
(1)Subject to this section, if—
(a) a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 4 Division 2; and
(c) the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may order that the defendant serve the sentence on home detention (a home detention order).
…
(3)The court must take the following matters into consideration when determining whether to make a home detention order:
(a) the impact that the home detention order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the prisoner would, if released, be required to reside;
(b) the pre sentence report (if any) ordered by the court;
(c) any other matter the court thinks relevant.
In R v Aubrey,[32] the Court of Appeal considered the approach to be adopted in determining whether to order that a defendant serve a sentence on home detention:[33]
Section 71(1) of the Sentencing Act empowers the Court to order that a sentence of imprisonment be served on home detention if it considers that the sentence should not be suspended and that the defendant is a suitable person to serve the sentence on home detention. Section 69(2) provides that the paramount consideration when determining whether to make a home detention order must be to protect the safety of the community (whether as individuals or in general). Bleby JA observed recently in Liddicoat v The Queen.
In R v Dell & Dell, this Court concluded that whether to order home detention under the former s 33BB(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the predecessor to, and in materially the same terms as, s 71(1) of the Sentencing Act 2017 (SA)) required a two stage process of consideration. It held that this requires first, a narrow inquiry as to the suitability of the defendant for a home detention order, focusing on their personal circumstances. If the Court is satisfied that they are a suitable person, it may then proceed to exercise the broader description encompassed in the words, ‘the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention’.
The corresponding provision in s 71(1) does not contain the words ‘may suspend the sentence under this Division and’, but that does not, in my view, alter the conclusion that a two-stage process is required.
(Footnotes omitted)
[32] [2021] SASCA 71.
[33] R v Aubrey [2021] SASCA 71 at [23].
The test, as described in R v Dell & Dell,[34] is one of two parts. The first enquiry in s 71(1)(c) is directed towards the suitability of a defendant to serve a sentence on home detention. The second is the exercise of the broader discretion that “the court may order that the defendant serve the sentence on home detention”. This process will encompass taking into consideration those matters referred to in s 71(3) of the Sentencing Act.
[34] (2016) 126 SASR 571.
In his reasons, the Magistrate considered the options of suspension, partial suspension and home detention together as a group. His Honour set out his reasoning in the following terms:[35]
I come to consider the questions of suspension, partial suspension or home detention.
It has been urged upon me that your pleas of guilty, your prior good record, the absence of any offending for a year as well as the opportunity that Mr Thompson offers you represents sufficient grounds or good reason for me to suspend or to otherwise deal with you than by an immediate term of imprisonment.
In my view, whilst they are powerful mitigating factors, in my view the offending is simply too serious, too violent and has affected too many people for them to amount to good reasons to suspend the term of imprisonment.
I make the same ruling in relation to the question of partial suspension as well as home detention.
[35] Sentencing Remarks at 6.
Counsel for the appellant contends that in expressing himself in that manner, the Magistrate has adopted the expression “good reasons” in terms of identifying the test to be applied in determining whether a home detention order should be made. The remarks do not purport to engage in a detailed examination of the two-stage test relating to home detention. Counsel for the appellant submitted that this portion of the remarks reveals that the Magistrate conflated the test for the suspension of a sentence and the applicable test for making a home detention order, and that it follows that the application of the incorrect test is an error which vitiates the sentence.
The remarks of the Magistrate are, however, capable of an alternative interpretation. In making “the same ruling” the Magistrate was saying no more than that he had come to the same conclusion, namely that partial suspension or home detention were not suitable options for the appellant.
Counsel for the respondent, contends that the appellant’s complaint fails to properly appreciate the context in which the Magistrate’s remarks were made. He submitted that as recently reaffirmed by the Court of Appeal, due regard must be given to the nature of the proceeding, and the “necessarily economical” sentencing remarks made in the Magistrates Court.[36] Further, it has been repeatedly stated that Magistrates are not under an obligation to mention every submission or argument raised before them, nor to catalogue every sentencing option available.
[36] Oatley v Commonwealth Director of Public Prosecutions [2021] SASCA 108 at [30]-[31].
In his written submissions counsel for the respondent summarised his position as follows:[37]
[44]The explicit mention of home detention, alongside partial suspension, demonstrates that the Magistrate had regard not only to the specific submissions that were made on behalf of the appellant, but the sentencing law that was not specifically raised. The mention, albeit brief, in the remarks, was adequate in the circumstances. The remarks are sufficient to enable this Court to understand the sentencing process. That the same factors underlay the Magistrate’s refusal to order that the sentence of imprisonment be suspended, partially suspended or ordered to be served on home detention is not controversial, nor is it indicative of error. The respondent submits that this was a matter as contemplated in the authorities where it was not necessary for the Magistrate to set out detailed reasoning in that aspect of his remarks.
[45]Further, it has been repeatedly observed that the combination of factors militating against suspension will not only lead to rejection of whole or partial suspension, but also on balance lead to a rejection of a submission that home detention is appropriate.
(Footnotes omitted)
[37] Respondent’s Written Submissions at [44]-[45]
I agree with those submissions.
It has frequently been said that sentencing remarks, particularly the “necessarily economical”[38] remarks of magistrates conducting busy lists, are not to be read and deconstructed with the same scrutiny as one might read written reasons for judgment.[39] It has been recognised that:[40]
…sentencing remarks are not reasons for judgment and are not to be read with a hypercritical eye but on the presumption that the sentencing judge knows the sentencing law.
[38] Craill v Police [2016] SASC 168 at [30] (Stanley J).
[39] Playford v Police [2017] SASC 26 at [23] (Vanstone J).
[40] KMC v Director of Public Prosecutions (2020) 267 CLR 480 at [28] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
The remarks made by the Magistrate do not indicate an erroneous approach to the question of home detention. Further, the remarks read as a whole adequately outline the reasons for the Magistrate’s ultimate conclusion that the offending was too serious for any non-custodial sentencing options.
Even if I am wrong in that the Magistrate did not apply the correct test, I would not allow the appeal on this ground. A proper application of the test to the appellant’s circumstances leads me to the conclusion that the outcome was correct. It was open to the Magistrate to come to the view that this was not an appropriate case in which to order that the sentence be served on home detention. I dismiss this ground of the appeal.
Ground 4
Particulars
The Learned Sentencing Magistrate erred by taking into account an irrelevant consideration when exercising the sentencing discretion, namely, that the appellant failed to complete the abuse prevention program.
By the time of the appeal, this ground was pursued with no real vigour by the appellant.
This ground arises from s 11 of the Sentencing Act. This relevantly reads:
11—Individual sentencing factors
(1)In determining a sentence for an offence, a court must take into account such of the factors as are known to the court that relate to the following matters as may be relevant:
…
…
(6)If a defendant has participated in an intervention program, a court may treat the defendant's participation in the program, and the defendant's achievements in the program, as relevant to sentence.
(7)However, the fact that a defendant—
(a) has not participated in, or has not had the opportunity to participate in, an intervention program; or
(b) has performed badly in, or has failed to make satisfactory progress in, such a program,
is not relevant to sentence
An intervention program is defined in s 5 of the Sentencing Act as:
intervention program means a program that provides—
(a)supervised treatment; or
(b)supervised rehabilitation; or
(c)supervised behaviour management; or
(d)supervised access to support services; or
(e)a combination of any 1 or more of the above,
designed to address behavioural problems (including problem gambling), substance abuse or cognitive impairment;
During the course of sentencing submissions, the appellant’s previous counsel tendered a report indicating that the appellant commenced an Abuse Prevention Program on 11 March 2021. He had been recommended for that program under s 13 of the Intervention Order (Prevention of Abuse) Act 2007 (SA). The appellant’s counsel tendered the report in support of the submission that he made about the appellant’s contrition and remorse for his offending. It was put to the Court that the appellants voluntary attendance at the course demonstrated that he had some insight into his behaviour.
In his reasons, the Magistrate made the following reference to the report:[41]
You participated in the Abuse Prevention program. I have been provided with an interim report from that program which is dated the 24th of May this year. The report also records that you were admitted into the program on the 11th of March 2021. It is noted that you were a quiet member of the group but when you participated you showed deep understanding regarding the impact of domestic violence. The report goes on to record that more recently your mental health appeared to decline significantly. The author notes that you made mention of having other personalities. Your behaviour in the group sessions also appeared to have declined and you were noticed to have displayed dismissiveness to both the program and its other members.
You did say during at least one session that you were sorry for what you had done, and you felt ashamed.
[41] Sentencing Remarks at 4.
Counsel for the appellant initially put to the Court that this passage from the reasons suggested that the Magistrate had “impermissible regard to the termination of the appellant from the program”.[42] Sections 11(6) and 11(7) of the Sentencing Act provide, respectively, that participation and achievements in an intervention program is relevant to sentence, whilst bad performance, unsatisfactory performance or not participating in a program is not relevant to sentence. He submitted it follows that consideration of an irrelevant matter (the appellant’s less than optimal participation) is a circumstance that will vitiate the exercise of a discretion and that is what has occurred in this case.
[42] Appellant’s Written Submission at [31].
In response, counsel for the respondent made the submission that the success of this ground of appeal would necessitate expanding the interpretation of “intervention program” beyond that given to it by the Court of Appeal in Pateras v The Queen.[43] In that case, the Court, having considered the earlier authority of R v Wymond,[44] observed:[45]
The text, context and purpose of ss 11(6), (7) and 29 of the Act support a narrow construction of the expression “intervention program”. Properly construed, “intervention programs” are those ordered and monitored by a court pursuant to s 29 of the Act. Section 11 of the Act does not refer to the many and varied rehabilitation programs which may be undertaken by an offender.
[43] [2021] SASCA 107.
[44] [2013] SASCFC 12.
[45] Pateras v The Queen [2021] SASCA 107 at [34].
The Abuse Prevention Program undertaken by the appellant was not an “intervention program” that fell under s 29 of the Sentencing Act. It follows that it did not fall within the prohibition of s 11(7) of the Sentencing Act. Ultimately, counsel for the respondent conceded that if I was bound by Wymond, then it is inevitable that this ground will fail.
There is no merit to this ground of appeal.
Ground 5
Particulars
The Learned Sentencing Magistrate erred in calculating the total term of imprisonment as being 17 months and 3 days.
This ground can be disposed of expeditiously. Counsel for the appellant has correctly identified that the Magistrate made an arithmetical error when adding together the various sentences to arrive at a single head sentence. The total head sentence was 16 months and 7 days[46] instead of 17 months and 3 days, as calculated by the Magistrate.
[46] Based on a 30 day month.
The error does not undermine the exercise of the Magistrate’s discretion. The remarks disclose the Magistrate’s settled starting point for each constituted part of the overall head sentence. Further, the Magistrate clearly evidenced an intention to apply a reduction to the head sentence on account of proportionality and totality, to intentionally bring the sentence down to 12 months.
A reading of the Magistrate’s remarks in their entirety clearly demonstrates that the arithmetical error was not material. The “true intention”[47] of the Magistrate was to reduce the total period of imprisonment to 12 months. To have reduced the sentence any further would have had the effect of depriving the appellant of a non-parole period with the paradoxical outcome that he would be required to spend longer in custody.
[47] See R v Singh (2018) 132 SASR 1.
Conclusion
In light of the seriousness of the offending and having regard to all of the appellant’s personal circumstances, it cannot be said that the imposition of a term of immediate imprisonment of this duration was outside of the permissible range of sentences available to the Magistrate. In my view it was in fact an appropriate, if not merciful, sentence.
None of the grounds of appeal have been established.
Order
The appeal is dismissed.
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