Fischetto v Police - [2011] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FISCHETTO v POLICE
[2011] SASC 24
Judgment of The Honourable Justice David
1 March 2011
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - OTHER FACTORS - OFFENCE COMMITTED WHILE ON BAIL, PROBATION OR PAROLE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - TAKING OUTSTANDING OR FURTHER OFFENCES INTO ACCOUNT
Appeal against sentence of Magistrate – appellant pleaded guilty to assault police in breach of bond – Magistrate sentenced appellant to two weeks imprisonment for assault police – Magistrate ordered appellant to serve four months imprisonment in relation to prior suspended sentence – whether Magistrate erred in not suspending sentence for assault police – whether Magistrate erred in not excusing failure to comply with bond conditions – whether Magistrate erred in not finding special circumstances to reduce term of imprisonment – whether Magistrate erred in finding appellant’s actions were part of a pattern of behaviour – whether Magistrate erred in finding appellant’s actions were deliberate.
Held: Appeal dismissed – aggravating factors justified not suspending sentence for assault police – similarity of offences justified not excusing failure to comply with bond conditions – no special circumstances exist to render original sentence inappropriate – Magistrate was entitled to find appellant’s actions were deliberate and not out of character.
Criminal Law (Sentencing) Act 1988 (SA) s 58, s 58(3)(ii), s 58(4), s 58(5), referred to.
R v Buckman (1988) 47 SASR 303, considered.

FISCHETTO v POLICE
[2011] SASC 24
Magistrates Appeal: Criminal
DAVID J:
Introduction

This is an appeal against sentence.
The appellant appeared in the Adelaide Magistrates Court on 1 December 2010 charged with two counts, namely:
1.Aggravated assault, using an offensive weapon.
2.Assault police.
The appellant pleaded guilty to the charge of assault police and the first count of aggravated assault was withdrawn. Having pleaded guilty to that offence, the appellant admitted breaching a bond which he had entered into in March 2009 whereby he was given a suspended sentence of four months imprisonment. The term of the bond was for 12 months. That suspended sentence was for one count of assault and one count of refusing to supply a name and address which occurred on 22 March 2008, and one count of disorderly behaviour which occurred on 11 January 2009.
The Magistrate in the present matter sentenced the appellant to two weeks imprisonment on the charge of assault police (“the breaching offence”) and ordered that the appellant serve the four months imprisonment in relation to the suspended sentence as the bond had been breached.
The appellant now argues that the Magistrate erred in not suspending the sentence of two weeks imprisonment and also erred in not finding proper grounds existed to excuse the failure to comply with the bond, or alternatively should have found that there were special circumstances to reduce the term of imprisonment to be served in relation to the breach of bond.
Background facts
The breaching offence occurred in the early hours of the morning of 18 January 2010. The police attended at an address in Newton and arrested the appellant for aggravated assault. There was an altercation between the appellant and another person, as a result of which the appellant was put into the rear of a police sedan to be conveyed to the Adelaide Watch House cells. It is to be noted that the original alleged offending of aggravated assault was not pursued.
While on the journey the police became alarmed at the defendant’s behaviour as he was hitting his head against the window of the vehicle. Evidently he was doing that because of a combination of being intoxicated and finding that his handcuffs were too tight. The police stopped the vehicle and opened the appellant’s door to prevent him from harming himself. The appellant was sitting in the vehicle abusing and swearing at the officers when the appellant spat on one of them. Saliva landed on the officer’s arm. Having done that, the appellant said, “Why don’t you come closer so I can spit on you properly?”. It was that act of spitting that constituted the charge of assault police to which the appellant pleaded guilty.
On 27 March 2009 the appellant pleaded guilty in the Magistrates Court to aggravated assault and refusing to supply his name and address. Both of those offences took place on 22 March 2008. On that same occasion he also pleaded guilty to disorderly behaviour, that offending having taken place on 11 January 2009. For those offences he was given a suspended sentence of four months imprisonment upon entering into a bond to be of good behaviour with conditions for a period of 12 months. The charge of aggravated assault, for which he was given a suspended sentence, involved the appellant biting a police officer on the finger whilst the police officer was performing his duty.
The matters personal to the appellant
At the time of the present offending the appellant was aged 35 years. At the time of sentence he worked at the Royal Adelaide Hospital in administration and medical records, which was a position of trust and responsibility, and he generally had a good work record. He has a four year old son with whom he has fortnightly contact. He had started a new relationship of just over a year and his new partner was about to give birth to his second child. Of his own volition he commenced anger management counselling at the Norwood Medical Village.
Appeal
I set out the grounds of appeal in full:
1.The Honourable Stipendiary Magistrate erred in not suspending the sentence of imprisonment;
2.The Honourable Stipendiary Magistrate erred in not finding proper grounds to excuse the failure to comply with bond conditions;
3.The Honourable Stipendiary Magistrate erred in failing to consider and in not applying the provisions of section 58(4) of the Criminal Law (Sentencing) Act 1988 as to whether special circumstances existed to reduce the term of imprisonment to be served in relation to the breach of bond;
4.The Honourable Stipendiary Magistrate erred in finding the offending was part of a pattern of behaviour and “in character” for the appellant;
5.The Honourable Stipendiary Magistrate erred in finding the offence of assault police was deliberate rather than reckless;
6.The Honourable Stipendiary Magistrate erred in not warning counsel of an intention to make the findings specified in grounds 4 and 5 and inviting further argument or evidence on these issues.
I will deal with each ground in turn.
Ground 1 – The Honourable Stipendiary Magistrate erred in not suspending the sentence of imprisonment
Mr Coates, for the appellant, argues that the act of spitting in the direction of the police officer whilst intoxicated and in an agitated state warrants the suspension of the term of imprisonment that was imposed. He argues that the Magistrate erred in not so suspending that term.
I cannot agree. There are clear aggravating factors which justified the Magistrate in not suspending the term of imprisonment. This offending occurred whilst the appellant was on a suspended sentence bond for similar behaviour. The brief details of that behaviour have already been mentioned. The very act of spitting at somebody is not a form of assault which can be treated lightly, especially in relation to police officers trying to perform their duty in difficult circumstances.
I would reject this ground of appeal.
Ground 2 – The Honourable Stipendiary Magistrate erred in not finding proper grounds to excuse the failure to comply with bond conditions
I set out in full the provisions of s 58 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”):
58—Orders that court may make on breach of bond
(1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a)     may, if the bond requires the probationer to pay a sum in the event of non‑compliance with a condition of the bond, order that the probationer pay the whole or a part of that sum;
(b)     may order a guarantor to pay the whole or a part of the amount due under the guarantee;
(c)     may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii)if the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, refrain from taking any action in respect of the failure;
(d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
(2)The court may not order a person to pay an amount pursuant to subsection (1)(a) unless the court is satisfied—
(a)     that the person has, or will within a reasonable time have, the means to pay the amount; and
(b)     that payment of the amount would not unduly prejudice the welfare of dependants of the person.
(3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a)     may refrain from revoking the suspension; and
(b)     may—
(i)—
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B)in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or
(C)cancel the whole or a number of any unperformed hours of community service; or
(D)revoke or vary any other condition of the bond; or
(ii)if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.
(4)Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)     may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)   may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)     may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(5)Where a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.
The Magistrate considered whether there were proper grounds to excuse the breach pursuant to s 58(3)(b)(ii) of the Act. Having dealt with the facts, the Magistrate said in sentencing:
I take into account in dealing with you today that you have a four year old son from a previous relationship. There are Family Court proceedings on foot. No doubt all of that activity would be distressing to you. If you do have a short fuse and some anger problems no doubt that would have provoked you if the circumstances were right for that. It may also be that intoxication brings out your anger. That is something you will have to reflect on in the future. You are still a young man with a long way to go. I take into account that you currently have a new partner who is about to give birth. You have a good work ethic. You work in administration at the Royal Adelaide Hospital and so it is a little surprising that you are able to maintain that type of work and yet reveal yourself in this particular way where you are angry and act out towards police in your own time. That doesn't seem to fit with being a responsible person and so if this had been the first time this had happened (this type of thing), I might have been prepared to accept it was an aberration, out of character but I'm not prepared to accept that given the facts.
In the circumstances I have considered very carefully whether or not there are proper grounds for me to excuse the breach of your suspended sentence bond and I am not prepared to excuse that breach.
Mr Coates now argues that proper grounds did exist because in this case the activation of the sentence would be a “disproportionate consequence”. He referred to R v Buckman[1] where King CJ, when dealing with s 58(5), said:[2]
It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
[1] (1988) 47 SASR 303.
[2] (1988) 47 SASR 303 at 304.
Mr Coates, quite properly, does not suggest that the breaching offence was trivial but points out the difference between the term of imprisonment of two weeks for the breaching offence and the period of four months which would be activated if the breach were not excused. He also argues that although the suspended sentence bond of 12 months was breached, nevertheless there was a period of some 22 months between the actual offending of the first offence of aggravated assault to the breaching offence.
I reject this argument. The offending was similar in that it involved anger towards police officers in the execution of their duty and clearly the appellant has not learnt from nor appreciated the leniency afforded by the original sentence. I find the difference between two weeks for the breaching offence and four months for the original suspended sentence is not disproportionate and does not amount to grounds to excuse the breach.
I would reject this ground of appeal.
Ground 3 – The Honourable Stipendiary Magistrate erred in failing to consider and in not applying the provisions of section 58(4) of the Criminal Law (Sentencing) Act 1988 as to whether special circumstances existed to reduce the term of imprisonment to be served in relation to the breach of bond
The relevant subsection is set out above. In dealing with that subsection in R v Buckman King CJ said:[3]
The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.
[3] (1988) 47 SASR 303 at 304.
Mr Coates argues that special circumstances do exist because of the combination of the following events:
1The appellant’s partner gave birth to a new baby on 3 January 2011 and the appellant wishes to be a full time parent.
2The fact that he has sought anger management counselling and a term of imprisonment will harm his prospects of rehabilitation. That has happened since the original penalty was imposed.
3The appellant’s employment has now become stable even though it existed before sentence.
4The appellant is seeking to increase his level of contact with his four year old son.
Mr Coates argues that those four factors in combination amount to special circumstances personal to the appellant to justify reducing the period of four months.
In my view none of these factors, either alone or in combination, amount to special circumstances. All of those factors were at least potentially before the Magistrate and cannot be said to have rendered the original sentence of four months inappropriate in the circumstances that now exist. The Magistrate was told that a child would be born and that there were Family Court proceedings on foot concerning access to his four year old son. The Magistrate was also told of the employment situation of the appellant. The remaining fact that the appellant has sought counselling since being sentenced, commendable as that may be, does not amount to special circumstances.
I would reject this ground of appeal.
Grounds 4, 5 and 6
I deal with grounds 4, 5 and 6 together. Those grounds are set out above.
Mr Coates argues that any error in relation to these grounds is such that it could affect the Magistrate’s decision not to suspend the sentence of two weeks for the breaching offence.
In the reasons for sentence the Magistrate said:
I am told that you have some previous convictions in 2007, a number of driving matters. You have been given suspended sentences of imprisonment on two occasions once in 2007 and again in March 2009. The March 2009 suspended sentence was for a period of four months and that concerned convictions for aggravated assault and refusing to supply your name and details and disorderly behaviour. I have taken the opportunity of looking at the summary of the allegations that concern that assault in those matters and it would appear, and it is conceded by counsel for you, that on that occasion a police officer who was trying to perform his duty was bitten by you and suffered injury. He was bitten on the finger. You were obviously in a highly agitated state. You were said to be swearing and shouting demands at the police and when you were asked to provide your name and address you refused to provide those details. The police attempted to handcuff you, you resisted them in their attempts to restrain you. The police officer concerned was officer Wasilenia. On that occasion you bit his finger for approximately 15-20 seconds. I refer to that matter in that degree of detail because there is an application that has been placed before me for the suspended sentence imposed upon you on 27 March 2009 be revoked because of your offending in January. That offending breaches the bond which required you to be of good behaviour. It was your second opportunity to demonstrate that you could go for a period of 12 months with the threat of imprisonment over your head without further offending. Unfortunately it would appear that your anger got the better of you again. I am told you were intoxicated as well.
Given the circumstances, it appears to me that there is now starting to emerge a pattern of behaviour on your part.
(Emphasis added)

Mr Coates argues that the Magistrate erred in finding “there is now starting to emerge a pattern of behaviour on your part”. He argues that the two offences involving police officers were 22 months apart and two offences do not constitute a pattern of behaviour.
Strictly speaking Mr Coates may be right, but it can have made no difference to the proper approach of the Magistrate. The Magistrate was obviously concerned to point out that the two offences are not so far apart, the appellant was given the benefit of a suspended sentence and there is a similarity between both offences, namely, anger, alcohol and police officers in the performance of their duty. Also in the sentencing remarks the Magistrate rejected a defence submission that the appellant’s conduct was more reckless than deliberate. The Magistrate said:
Having regard to the previous offence that you were convicted of in March 2009 I disagree that your offending was out of character. In my view it was not done recklessly. It was done intentionally. I note that you backed up your actions by inviting the police officer to come closer so that you could spit at him again.
Mr Coates argues that, although the actual act of spitting was clearly deliberate, there is a difference between deliberately aiming at a particular officer and spitting in that officer’s general direction. The latter situation Mr Coates would categorise as reckless, although the act of spitting itself was deliberate. He criticises the Magistrate, firstly, for treating it as deliberate and, secondly, having done that not inviting counsel to make further submissions on that topic before sentence.
On the material put before the Magistrate, namely, the submissions of both counsel, including the uncontested objective facts, the Magistrate was perfectly entitled to come to the conclusion that the deliberate act of spitting was specifically aimed at the police officer involved. Even if it was not, and the appellant spat in his direction being reckless as to whether he was hit or not, that can have made no difference to the sentence.
I would reject that ground of appeal.
Finally, it follows that there was no need before sentence for the Magistrate to indicate to counsel that he was going to find in his reasons that the appellant’s behaviour was not out of character and that it was deliberate. Both of these matters have been clearly ventilated in submissions and, on the material placed before him, the Magistrate was entitled to come to the conclusions that he did.
I would reject grounds 4, 5 and 6.
Conclusion
I dismiss the appeal.