Faulds v Police No. Scciv-02-174

FAULDS v POLICE
[2002] SASC 251
Magistrates Appeal

WICKS J This is an appeal against sentence.
On 15 December 2001 the appellant was charged with common assault on a person other than a family member, contrary to s 39(1) of the Criminal Law Consolidation Act 1935. She was also charged with refusing without reasonable excuse to state to a member of the Police Force her full name and address, as required by s 74A(3)(a) of the Summary Offences Act 1953.
Background
The background to this matter is that the appellant had been drinking with her boyfriend at Mick O’Shea’s Irish Pub at South Road, Hackham on the evening of 14 December 2001. During that evening they had an argument and that led her to drink too much so that she became very drunk.
The appellant and the security officer at the hotel had been friends, their relationship culminating in a sexual encounter one night. After that incident, the security officer pursued the appellant to become his girlfriend. She did not wish to pursue a long-term relationship with him. This offended him and thereafter he treated her rudely by ignoring her when she spoke to him and by giving her “dirty looks” at a distance. This state of affairs continued over a period of two years or so prior to the incident the subject of these proceedings.
The appellant said that on the night the subject of these proceedings she had not done anything wrong before being removed from the premises. No-one asked her to leave the premises. If asked to leave, she would have done so without the embarrassment of a scene.
The first she knew was that she was grasped by her left upper arm by the security officer and dragged violently to her left towards the outside door. Throughout this incident she was saying : “just let me get my shoes” because she had been “yanked” out of her shoes. Outside, the security officer let her go. She said that on the spur of the moment she punched him in the mouth. The police were called.
When the police attended the hotel the appellant refused to give her name and address, although subsequently she relented and gave that information claiming that her earlier refusal was a joke.
On 15 January 2002 the appellant pleaded guilty to both charges. The learned Magistrate sentenced the appellant to 14 days imprisonment on the assault charge, and recorded a conviction, without further penalty on the charge of refusing to provide her name and address. He declined to suspend the prison sentence.
The appellant had a previous conviction. She was convicted on 15 June 2000 of one count of common assault on a person other than a family member and one count of damaging property, for which the appellant was fined a total of $200.
Grounds of Appeal
There are three grounds of appeal in this matter. The first is that the learned Magistrate, in circumstances where the appellant faced an immediate period of imprisonment:
(a)failed to ensure the appellant appreciated the fact and the desirability of legal representation,
(b) failed to refer the appellant to the duty solicitor,
(c) failed to order a pre-sentence report,
(d)failed to inform himself adequately of the personal circumstances of the appellant,
(e)failed to ensure that the appellant appreciated the importance of raising matters of mitigation as to the circumstances of the offence.
The second is that the learned Magistrate erred in imposing a manifestly excessive penalty, namely a term of imprisonment. The third is that the learned Magistrate erred in not suspending the term of imprisonment, there being good reason to do so.
The first ground of appeal - should the Magistrate have referred the appellant to the duty solicitor for advice?
The appellant was unrepresented before the Magistrate. In an affidavit filed in this Court she said that she had intended to ask to see the duty solicitor on the morning of the 15 January 2002. However, upon her arrival at court, she forgot to ask to see a duty solicitor. The appellant said she remembered that the Magistrate inquired whether she was representing herself and whether she wanted Legal Aid. She confirmed that she told the Magistrate she did not want Legal Aid. She also said that the Magistrate told her that the penalty could be “imprisonment, community service or a fine.”
In his Remarks on Penalty the learned Magistrate stated that:
" For the record I have informed you that I have in mind to order a short period of imprisonment and I have offered you the opportunity to obtain legal representation but you have declined that."
An affidavit sworn by the prosecutor, Kevin Dollard, confirms that the defendant “was given a number of opportunities to obtain legal representation which she refused.”
In Cooling v Steel (1971) 2 SASR 249 at p 251, Wells J held:
" Next, the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation …
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed … especially where the court has the power to … record a term of imprisonment."
However in the present case, there is no doubt that the learned Magistrate correctly warned the appellant that a custodial sentence was being considered and asked her whether or not she wished to obtain legal representation.
The appellant was so overawed by the proceedings at the court that she was unable to put matters in mitigation as to the circumstances of the offences and significant matters as to her personal circumstances.
The appellant appeared before the Magistrates Court sitting at Christies Beach. There is authority for the proposition that a Magistrate, before sentencing, ought to refer an unrepresented defendant to the duty solicitor (if there is one) particularly where the defendant has not taken the opportunity to make any submissions as to mitigation.
In McFadzean v Hayes (1986) 133 LSJS 142 Olsson J said at p 145:
" In my opinion, particularly bearing in mind the duty solicitor system at the Adelaide Magistrate’s Court, the proper approach in this case ought to have been to have informed the appellant that a custodial sentence was definitely in contemplation and that he ought at least to seek advice as to submissions in mitigation from that solicitor before the case proceeded further. If, having been counselled in such terms, the defendant declined to accept the advice offered, then a very clear record of that situation ought to have been made."
The appropriateness of advising an unrepresented defendant of the existence of the duty solicitor service has also been discussed by Mullighan J in England v Police (Unreported Judgment No [2001] SASC 367 dated 4 September 2001): He said at p 4:
" These days there is a duty solicitor available in most Magistrates Courts and an unrepresented defendant facing a serious charge should be directed to that solicitor for assistance."
The materials before me do not indicate whether or not a duty solicitor service was available at the Magistrates Court at Christies Beach.
Also it is not clear whether the Magistrate specifically informed the appellant of the duty solicitor service. He certainly did not make a record of having done so. The appellant herself admits that she knew of the duty solicitor service but “forgot” to utilise it. I consider that in the circumstances, the learned Magistrate should have informed the appellant of the existence of the duty solicitor service. Having been so advised, she may have been reminded that she intended to make use of this service to receive advice as to appropriate matters to be put before the Magistrate prior to sentencing.
I propose not to make any finding as to whether or not the Magistrate told the appellant that a duty solicitor service was available for her use.
The first ground of appeal - should the Magistrate have ordered a pre-sentence report?
The appellant further submitted that the sentencing process miscarried due to the failure of the learned Magistrate to order a pre-sentence report.
Counsel for the appellant submitted to this Court that Kenchington v Shepherd (Unreported Judgment No 2051 dated 17 January 1990) is authority for the proposition that a pre-sentence report should have been ordered to avoid the Magistrate sentencing in an “information vacuum”.
In Kenchington v Shepherd Olsson J observed at p 4:
" It is immediately apparent that, as matters then stood, the learned magistrate then proceeded to sentence the appellant in what was a fairly substantial information vacuum as to his personal background and circumstances and in a situation in which very real questions naturally arose as to how a first offender of his age had come to be involved and as to the real nature of his involvement in the overall enterprise.
Whilst it is easy to be wise after the event – particularly in the context of the pressure under which courts of summary jurisdiction are frequently asked to operate – it must be said that this was a situation in which not only should a comprehensive pre-sentence report have been called for but great care should also have been taken to explain to the appellant the very real danger in which he stood, what sentencing options arose for consideration and the desirability of seeking legal representation."
Section 8 of the Criminal Law (Sentencing) Act, empowers the Court at its discretion to order a pre-sentence report on the physical or mental condition of the defendant and on the personal circumstances and history of the defendant if it would assist in determining the sentence. If the learned Magistrate had obtained a pre-sentence report, he would have become aware through the report that the appellant had the sole custody of a five year old child and that a sentence of imprisonment would have caused considerable hardship.
In England v Police, at p 4 Mullighan J proposed that:
"Where no submissions are made by an unrepresented defendant and imprisonment is a possibility, the Magistrate should question the defendant to see if there is a basis for a more merciful approach to sentencing."
I do not think that a formal pre-sentence report is necessary on every occasion where information as to the background to the offence, the physical or mental state of the defendant and other relevant information may be required in order to assist in the sentencing process. There will, no doubt, be many occasions where such information can be supplied on a more informal basis eg where the presiding Judge or Magistrate asks a number of questions before proceeding to prepare or deliver his sentence.
At the time of sentencing, the Magistrate knew very little about the personal circumstances of the appellant or the circumstances surrounding the offence. By consent, certain additional information about the appellant was submitted to me on the hearing of this appeal. This information included that fact that the appellant was the sole carer of her five year old daughter and that although unemployed since December 2000 the appellant had previously been fully employed since she left school. She is currently undertaking a full-time course which she paid for out of her own savings to become a Pharmacy Assistant.
I consider that it would have been appropriate for the learned Magistrate to have questioned the appellant about her personal circumstances before sentencing her.
Second ground of appeal - was the sentence manifestly excessive?
Under s 39(1) of the Criminal Law Consolidation Act, the maximum sentence for assault in a case such as that of the appellant is two years. Under s 11 of the Criminal Law (Sentencing) Act a sentence of imprisonment may only be imposed in certain circumstances, one of which is where the defendant has previously been convicted of an offence punishable by imprisonment. That is the case here, where the appellant has been convicted previously of common assault. An assault is punishable by a period of incarceration although it is possible for a lesser penalty to be prescribed. In the circumstances of this case and taking into account the previous conviction for assault, I am of the view that the sentence imposed was not manifestly excessive.
Third ground of appeal - should the sentence be suspended?
Counsel for the appellant contended that the sentence should be suspended. In R v Shammall (Unreported Judgment No [2001] SASC 161 dated , 16 May 2001), Martin J, sitting as a member of the Full Court (at p 2) said:
" While a sentence of imprisonment for common assault will not always be suspended, even for a first offender, the criminal courts have consistently taken the view that a first offender should only be required to serve a sentence of imprisonment if the gravity of the offending is such that suspension is not justified. In my opinion, when the gravity of the offending is considered in the light of the mitigating circumstances to which I have referred, the learned sentencing judge erred in requiring the appellant to serve a sentence of imprisonment."
Provocation
Provocation can be a mitigating factor to a charge of common assault. In R v Whittingham (1988) 49 SASR 67, King CJ expressed the view that “the circumstances in which the offence occurred, do mitigate, to some degree, the seriousness of his action.” Provocation is generally a factor to be taken into account in determining whether a sentence is manifestly excessive but it may be taken into account in determining whether a sentence should be suspended.
With regard to provocation, the appellant has deposed that:
"On the night, I hadn’t done anything wrong, I wasn’t asked to leave by anyone. The first I knew I was grabbed by the left upper arm and dragged violently to my left towards, the outside door."
The appellant also contends in her affidavit that the victim had been treating her “rudely” for “about two years” since the appellant and the security officer had had a “brief sexual fling.”
In my opinion, the offending which is under consideration in the present case is not of sufficient gravity to require an outright sentence of imprisonment, particularly having regard to the fact that the appellant was provoked into committing the assault. Justice would require there to be a suspension of the sentence in this instance.
Conclusion
In sentencing, the importance of the appellant’s personal circumstances should be made known to the Court. In the present case, it would appear that those circumstances were not made known to the Magistrate. So far as this Court is concerned, the appellant made known her personal circumstances in an affidavit filed on 6 March 2002.
A pre-sentence report could have been obtained to avoid having to sentence the appellant in a vacuum. Alternatively, the learned Magistrate could have asked questions of the appellant as to her physical and mental condition and also as to her personal circumstances and history.
In the circumstances, I hold that the sentencing process in this matter has miscarried by a failure to obtain a pre-sentence report or to examine the appellant as to her personal circumstances and by the learned Magistrate’s failure to suspend the sentence in view of the fact the offence of assault charged and the prior conviction for assault were relatively minor offences and that I am entitled to re-sentence the appellant afresh. I propose to deal with the matter now rather than refer it back to the Magistrates Court for further consideration.
Orders made
For these reasons:
(1) I allow the appeal;
(2)I confirm the sentence of 14 days imprisonment imposed by the learned Magistrate;
(3)The sentence will, however, be suspended upon the entry by the appellant into a bond for $500 to be of good behaviour for a period of one year subject to a condition requiring the appellant to be under the supervision of a community corrections officer for a period of one year;
(4)I direct that the appellant report to the Department for Correctional Services, 181 Flinders Street, Adelaide not later than two working days after entering into the bond unless, within that period, she receives a notice from the Director of Chief Executive Officer of the Department to the contrary.

[2002] SASC 251

7 August 2002