FISHER v Police - [2004] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FISHER v POLICE
Judgment of The Honourable Justice White
9 August 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - GENERALLY
THREAT OF VIOLENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - MENS REA
RECKLESS CONDUCT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - PLEA AND STATEMENT OF DEFENCE
PLEA OF GUILTY - WITHDRAWAL OF

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against conviction and sentence - Appellant pleaded guilty to reckless assault - Appellant told 12 year old girl he wanted to have sexual intercourse with her - No physical contact - Appellant pleaded guilty on basis that he was "reckless" as to causing fear in the victim - Behaviour capable of constituting an assault - Appellant represented before Magistrate - Whether plea of guilty was influenced by mistake as to meaning of recklessness - No evidence of mistake - Appeal against conviction dismissed - Appellant sentenced to 12 months imprisonment - Assault was not the most serious of its type - Sentence manifestly excessive - Appeal against sentence allowed - Appellant re-sentenced on appeal - Appellant already served 14 days in custody - $500 bond with condition of community service imposed.
Criminal Law Consolidation Act 1935, s 39; Summary Offences Act 1953, s 6, s 7, s 74A; Criminal Law (Sentencing) Act 1988, s 18A, referred to.
Hinton v O'Dea (1977) 16 SASR 234; O'Dowd v Police (1998) 198 LSJS 493; Vella v The Queen (1984) 14 A Crim R 90; MacPherson v Beath (1975) 12 SASR 174; MacPherson v Brown (1975) 12 SASR 184; Edwards v Police (1998) 71 SASR 493; R v Bilick and Starke (1984) 36 SASR 321; R v Harris (1992) 59 SASR 300; R v Place (2002) 81 SASR 395; Wessling v Police (2004) 88 SASR 57, applied.
Zanker v Vartozokas (1988) 144 LSJS 259, considered.

FISHER v POLICE
[2004] SASC 232
Magistrates Appeal
WHITE J
Introduction

This appeal was instituted as an appeal against a sentence imposed by a Magistrate on 28 April 2004.
The appellant had pleaded guilty to one count of assault, contrary to s 39 of the Criminal Law Consolidation Act 1935. In addition, the appellant had pleaded guilty to one charge of behaving in a disorderly manner in the Balhannah Hotel car park, contrary to s 7(1)(a) of the Summary Offences Act 1953, and one count of failing, without reasonable excuse, to state his full name and address to a police officer, contrary to s 74A(3)(a) of the Summary Offences Act. Each of these offences occurred on 1 December 2003. A charge of resisting two police officers in the execution of their duty, contrary to s 6(2) of the Summary Offences Act was withdrawn.
Acting pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the Magistrate imposed one penalty for all offences, sentencing the appellant to 12 months imprisonment and fixing a non-parole period of six months. The Magistrate declined to suspend that sentence.
At the hearing of the appeal, the appellant said that he also wished to appeal against the conviction for assault, and to seek orders that the plea of guilty to that offence entered before the Magistrate, and the conviction, should be set aside.
On the application of the appellant (the Crown not opposing) I granted leave to the appellant to add two additional grounds of appeal as follows:
“10. That the appellant, then the defendant, was unaware of the elements of the offence at the time of the entry of the plea.
11.The elements of the offence do not exist in the matter to support a conviction.”
Although the additional grounds of appeal are not explicit about this, they are to be understood as relating only to the offence of assault, and not to the offences of disorderly behaviour and refusal to give the name and address to the police officer.
Evidence On the Appeal
At the time the amendment was allowed, Mr Grant, who appeared for the Crown, pointed out, quite fairly, that without evidence going to the matters raised by the new grounds, it would be difficult for the appellant to sustain those grounds and the orders which they were said to support.
With the consent of Mr Grant, I received into evidence on the appeal, an affidavit of the appellant’s former solicitor, Mr Stevens, sworn 11 May 2004. That affidavit, in substance, recounted the submissions made by Mr Stevens before the Magistrate. It was not directed to issues arising from the amended grounds of appeal.
With the consent of Mr Bleechmore, who appeared for the appellant, I received an affidavit from the police prosecutor, Mr Symonds, sworn 7 July 2004. That affidavit, in substance, recorded the events at the hearing and the submissions made by the prosecutor to the Magistrate. It too was not directed to the issues raised by the amended grounds of appeal.
The appellant did not seek to present any other evidence on the appeal.
The Circumstances of the Assault
The alleged assault did not involve the infliction of physical force to, nor touching of, the victim.
On 1 December 2003, at approximately 8.05 pm, the appellant, then aged 38 years, went to the home of the victim, who was then 12 years old. Her mother was absent from the house, albeit not far away. Her younger brother was asleep in the house. The appellant was intoxicated. The appellant knew the victim’s mother and the victim herself, through her friendship with his own daughter.
The prosecution allegations as to the assault are set out as follows in the affidavit of Mr Symonds:
“The victim opened the door and the defendant walked inside, into the kitchen area. Throughout the conversation with the victim, the defendant repeated on several occasions ‘you are beautiful, you are turning into a woman’. The defendant did not ask where the victim’s mother was for the entirety of the conversation.
The victim stated that he smelt strongly of alcohol and was stumbling as he walked. She also noted that he was not speaking in his usual manner and assumed that he was drunk, although she had not seen him drunk before.
Once inside the kitchen, the defendant did not sit down, and stood facing the victim who stood at the sink. She asked him whether he was there to see her mother. The defendant told her that he was not there to see her mother but was there to see her. The defendant told her that he had a daughter who was beautiful as well and that he was proud of her.
The victim stated that she didn’t know what to think, that she was scared and felt her heart pounding, that she hadn’t been in a situation like this before, and didn’t know what to do. She walked away from where the defendant was standing towards the back door and the defendant followed her. When the [victim] started walking towards her mother’s bedroom, the defendant was standing in the rear kitchen doorway and on two occasions said that he was ‘a devil and a bad man’. He then said ‘look into my eyes’ and told the defendant how beautiful she was and that he wanted to ‘fuck’ her.
At this point the defendant, scared, walked into her mother’s bedroom, which also has a door that goes back into the kitchen area. The defendant followed her into this room. Again the victim asked the defendant if he wanted to see her mother. He said ‘fuck that, you’re more beautiful than your Mum’ and walked towards the victim. She then walked into the kitchen and stood next to the kitchen table. The defendant was mumbling, with ‘fuck’ and ‘shit’ the only discernible words and the victim again asked the defendant whether he wanted to see her mother. The defendant said ‘Alright, she’s beautiful as well’. The victim then walked past him, towards the front door of the house and opened the door. She directed him down the pathway and told him where he could find her mother. He said that it was a beautiful pathway and the bricks were beautiful. The victim again gave him directions to where her mother was.
The defendant started walking towards the door and stumbled. When he stumbled he fell towards the victim and put his right hand on her shoulder. The victim stepped backwards and he managed to stand upright. He then said that the victim was very smart and beautiful and that if he had a daughter as smart and as beautiful as she was that he would be really proud of her.
… ‘The defendant then asked her again where he could find the victim’s mother and he was again informed that he should go down the path and to the left. At this time the defendant walked past the victim and went outside.
After the incident the victim informed her mother of what had occurred and the police were called.’”
It is to be noted that the prosecution did not rely on the stumble against the victim as constituting any part of the assault.
Circumstances of Disorderly Behaviour and Refuse Name and Address
The offence of disorderly behaviour also occurred on 1 December 2003, sometime after the first incident. The appellant was spoken to by police in the car park of the Balhannah Hotel. His language was loud and profane. The appellant was described by police as being obviously affected by alcohol. When spoken to by the police about his behaviour, the appellant declined to give his name and address.
Appeal Against Conviction and the Plea of Guilt
It is well established that this Court has jurisdiction to entertain an appeal against a conviction entered following a plea of guilty: Hinton v O’Dea (1977) 16 SASR 234 at 235; O’Dowd v Police (1998) 198 LSJS 493 at 496.
The principles upon which the Court acts in such cases are also well established. In Hinton v O’Dea (1977) 16 SASR 234 at 235 – 236, Jacobs J said:
“… A court will not lightly set aside a conviction founded on a plea of guilty. Speaking generally, it will only do so where it has been established to the satisfaction of the Court that the making of the plea has been induced by a material mistake – which is not this case – or by some improper threat or promise on the part of a police officer or other person in authority, and that but for the inducement the plea would not have been made. Although the matter last mentioned is no doubt an important matter to be considered, the right of a defendant to a completely free choice, whether to plead guilty or not guilty, is so important that in a case where the Court is satisfied that improper threats or pressure have been brought to bear there is a reasonable presumption of fact that the threats or pressure had the effect they were intended to have. I think that cases of this kind may well differ in this respect from the cases in which a plea of guilty is voluntarily made, but is said to have rested on some misapprehension or mistake. In such cases, ‘where to all appearances a person possessed of normal faculties has heard a charge read, and then admits the truth of it by pleading guilty, there must at least be a strong presumption that he heard and understood the charge, knows what he is being charged with, and intends to admit it’… the force and effect of such in an apparently voluntary admission may well be more difficult to displace when there is no suggestion that the defendant has been overborne by proven threats or inducement of the kind alleged in this case.”[1]
[1] See also O'Dowd v Police (1998) 198 LSJS 493 at 496 and the cases cited therein.
The authorities show that a successful appeal after a plea of guilty is likely to be rare: Vella v The Queen (1984) 14 A Crim R 90 at 92.
Misapprehension or Mistake
Ground 9 of the notice of appeal, added by leave during the appeal hearing, was no doubt drafted with a view to bringing the appellant within that part of the principle stated by Jacobs J relating to misapprehension or mistake. However, the appellant has not sought to present, on this appeal, any evidence at all to the effect that he was unaware of the elements of the offence of assault at the time of the entry of his plea. Furthermore, the circumstances in which the plea was entered, and taken, are against such a conclusion. The appellant was represented by counsel before the Magistrate. It is to be assumed that each of the appellant and his then counsel had adequate opportunity to give, and receive, instructions, to consider the matter, and to form a concluded view about the plea. As will be seen below, the plea was entered on the quite specific basis that the appellant’s state of mind was that of recklessness, further indicating that a concluded view about the commission of the offence had been reached. This ground of appeal is not made out.
Miscarriage of Justice
In that circumstance, Mr Bleechmore argued that a miscarriage of justice had, nevertheless, occurred because, even if the allegations put by the prosecutor to the Magistrate were accepted, the elements of the offence of assault were not made out.
The Magistrate was told that the appellant had pleaded guilty to the assault through a willingness to prevent the victim and her mother from giving evidence at trial. He pleaded guilty, it was said, with no positive memory of the words he had spoken to the victim due to his intoxication at the time of the offence, but he was willing to accept the victim’s statement regarding those matters. The Magistrate was told that the appellant “pleaded guilty to the offence on the basis that he did not intend to raise an apprehension of violence in the victim, but that he accepted that he was reckless as to whether this consequence occurred.” This submission was made after the prosecutor had read out the facts relating to the charge, and after the Magistrate had adjourned the matter for a short time in order to consider whether those facts could properly be regarded as constituting an assault.
Although Mr Bleechmore foreshadowed a submission that the mental element of an assault without battery requires a deliberate formation of intention by the offender to cause the requisite fear in the victim, he did not persist with that submission. He was correct not to do so. It is well established that the mental element of the offence of assault where no physical contact is made with the victim is either an intention by the offender to put someone in fear by an act, or alternatively, recklessness, in that the offender knows that it is possible that the victim may be put in fear by the conduct, but nevertheless engages in the conduct: MacPherson v Beath (1975) 12 SASR 174 at 177; MacPherson v Brown (1975) 12 SASR 184 at 188, 199. The relevant principles were summarised by Debelle J in Edwards v Police (1998) 71 SASR 493 at 495 as follows:
“1. The actus reus of an assault where there is no actual physical contact is an act of the defendant raising in the mind of the victim, the fear of immediate violence to him, that is to say, the fear of any unlawful physical contact.
2.The mens rea of such an assault is the defendant’s intention to produce that expectation in the victim’s mind.
3.There is the alternative possibility of a reckless assault, where the defendant whilst not desiring to cause such fear, realises that his conduct may do so and persists with it.”
In this case, by his plea of guilty, and his counsel’s submission in mitigation of penalty, the appellant accepted that although he did not intend to cause a fear of immediate violence in the mind of the victim, he had realised that his conduct may have that effect and had nevertheless persisted with that conduct. This is the basis upon which the plea was accepted and on which the appellant was sentenced as is evident from the following statement in the Magistrate’s sentencing remarks:
“[Y]ou have pleaded guilty on the basis that your actions were such that you recognised that [the victim] would be placed in fear an unlawful act would be committed against her but you continued nonetheless.”
Mr Bleechmore then argued a number of matters in support of his contention that the facts relied on by the prosecution did not disclose an offence of assault. First, he submitted that the conduct of the appellant, although offensive, brutish, and tasteless did not amount to a threat of unlawful force. In particular, the appellant’s statement that he wished to “fuck” the victim was not to be regarded as a statement of threat or menace. Rather, it was submitted, it was a statement of the desirability with which the appellant viewed the victim. This was evidenced, it was said, by the absence of any temporal words as in “I want to fuck you now” or “I am going to fuck you”.
Secondly, Mr Bleechmore submitted that the words and actions of the appellant did not carry with them the prospect of immediate violence to the victim. This was so, he submitted, because the victim was not confined or trapped by the appellant. Mr Bleechmore contrasted the facts of this case with those considered by White J in Zanker v Vartozokas (1988) 144 LSJS 259. In that case, the threatening words had been spoken whilst the victim was a front seat passenger in a moving vehicle, and furthermore, after the defendant had, by refusing to stop, prevented the victim from alighting. In this case, the victim had been free, so Mr Bleechmore submitted, to move about the house and had in fact done so.
Finally, Mr Bleechmore pointed to other words spoken by the appellant, which it is said negatived any sense of menace. He referred to the appellant’s statements: “You’re beautiful, like my daughter”, and the statements that the bricks and pathway were beautiful.
Mr Bleechmore submitted that the appellant’s statements and conduct in this combination of circumstances were not such that real fear would be raised and would result.
Related to this was a submission that the elements of the offence had not been established beyond all reasonable doubt. This appeal does not involve a question of whether the facts were proved beyond all reasonable doubt. The appellant’s plea of guilty meant that the prosecution was not put to proof. The question is, instead, whether the facts recounted by the prosecution and which the appellant’s plea indicated were accepted, were capable in law of constituting the offence of assault. Put slightly differently, the question is whether those facts were capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the appellant: R v Bilick and Starke (1984) 36 SASR 321 at 337.
In considering this question, I have referred to the cases summarised by White J in Zanker v Vartozokas (1988) 144 LSJS 259. I have found His Honour’s summary helpful. It is unnecessary for me to repeat that summary.
The incident in the present case occurred within the confines of the victim’s own home when she was, in effect, alone. Her mother was absent and her younger brother was asleep. The victim was a 12 year old adolescent, and the appellant a 39 year old man.
Furthermore, the appellant told the victim he was not there to see her mother but her. He did not ask the victim where her mother was at any time during his presence in the house. Thus, the appellant made it plain that the victim was the object of his attention. That circumstance alone, coupled with the appellant’s evident intoxication, was likely to have created apprehension in the victim.
It may be that there are nuances of meaning in the words “I want to fuck you”. It is not necessary to canvass the possibilities. A determination at trial would involve, no doubt, not only an examination of the mere words but also an examination of tone of voice, physical demeanour at the time the words were spoken, facial expression and so on. The appellant chose, by his plea of guilty, to forego such an examination by the Court. In those circumstances, it is not to the point that on one possible view of the facts, the Court may not have been satisfied beyond all reasonable doubt of the offence. In the circumstances in which the victim was placed, a properly instructed jury could find, in my opinion, that those words could be understood as words of menace and of current intention to engage in some form of sexual encounter with the victim. Such a jury could, in my opinion, conclude that alternative meanings may not have been in the forefront of the mind of a 12 year old adolescent female in the circumstances in which the victim found herself.

The fact that the victim was free to move about the house is relevant. The circumstances would have been even more frightening if she had been in a moving car, or locked in a house with no ready means of exit. However, the absence of those features does not mean, in the circumstances of this case, that the appellant’s conduct was deprived of menace. The appellant must have been very close to the victim throughout nearly the whole of the incident. He followed her, including into her mother’s bedroom, to which the victim had retreated because of her fright. When asked again whether the appellant wished to see her mother, the appellant responded, “fuck that, you are more beautiful than your mother” and walked towards her. There was no reason for the Magistrate (or for that matter a properly instructed jury) to doubt the victim’s statement that she was scared and that her heart was pounding. It is to be expected that this would be the reaction of most adolescents in the victim’s position. Her feelings were more than surprise or puzzlement at the appellant’s seeming erratic behaviour.
If the matter had proceed to trial, the various shades of possible meaning, and the overall tenor of the appellant’s conduct, could no doubt have been explored. It is not necessary for me to decide whether, after a trial, a determination of guilt would have been made. It is sufficient for me to conclude, as I do, that the facts disclosed by the prosecution were capable of constituting an assault because a reasonable person could conclude that the appellant, having adverted to the possibility that his conduct might induce in the victim a fear of immediate violence, as it did, nevertheless chose to persist with that conduct.
Mr Bleechmore made one further submission concerning the plea of guilty. He submitted that when the appellant’s counsel told the Magistrate that the appellant accepted that he was reckless as to whether an apprehension of violence was raised in the victim, he (the appellant’s counsel) was stating what a reasonable person in the appellant’s position would have realised, rather than what the appellant himself realised. That is, the submission was that the appellant’s then counsel told the Magistrate that the appellant accepted it was negligence, perhaps even gross negligence, for him to proceed, but not recklessness, as that term is used in the criminal law.
If that was what the appellant’s counsel was intending to convey, then it would, of course, have involved error: MacPherson v Beath (1975) 12 SASR 184 at 188 per Bray CJ. However, there is no indication at all that this was the meaning intended by the appellant’s counsel. The concept of recklessness is well known in the criminal law. Absent some indication to the contrary, it is to be supposed that the appellant’s counsel before the Magistrate used the expression in its well‑understood sense. If the appellant’s counsel had used the expression with a special meaning or was operating under a mistake or misapprehension as to the mental element of recklessness, that should have been the subject of evidence. It was not. I reject this submission.
In my opinion, none of the complaints about the conviction are established. There was no miscarriage of justice in the Magistrate’s acceptance of the guilty plea, nor in the subsequent entry of a conviction.
Appeal Against Sentence
I turn now to the appellant’s appeal against the sentence of 12 months imprisonment which was imposed. The Magistrate said that she did not consider any sentence other than a sentence of immediate imprisonment to be appropriate. Further, the Magistrate declined to suspend that sentence. The Magistrate said:
“In matters such as these I consider that deterrence must take priority. Young girls have to be protected and particularly in a situation where they are in the sanctuary of their own home. Intoxication may provide some reason why you behaved this way, some reason why you did it, but it does not provide an excuse. It probably provides explanation for your lack of memory in respect to this incident.
I consider the offending is serious and that a period of imprisonment should be imposed. The question I have to determine is whether that should be suspended. I have borne in mind the fact that you have no previous convictions for anything significant, that you have pleaded guilty and you are otherwise a person of good character. However I consider that the offending is such that it would not be appropriate to suspend the operation of the sentence. You and other people must recognise that young girls in this situation must be protected and although you did not touch her you must have created a great deal of fear in her mind.”
In her sentencing remarks, the Magistrate did not refer in any detail to the circumstances in which the second and third offences occurred, nor the view which she took of them. Nor did the Magistrate identify the amount of the discount which she allowed for the appellant’s guilty plea. This Court has said on several occasions that it is desirable for the sentencing Judge or Magistrate to indicate the reduction allowed on account of a plea of guilty: R v Harris (1992) 59 SASR 300. However, the failure of the Magistrate to indicate the extent of the discount given for a guilty plea is not, of itself, an error of principle warranting interference with a sentence: R v Place (2002) 81 SASR 395; Wessling v Police (2004) 88 SASR 57.
Error in the Magistrate’s Sentence
The maximum penalty for assault on a person who is not a family member of the offender is two years imprisonment. The maximum penalty for the offences of disorderly behaviour and refusing to give a name and address to a police officer is, in each case, a fine of $1,250 or imprisonment for three months.
Viewed against those maxima, the sentence of imprisonment of 12 months imposed by the Magistrate in the circumstances of this case is unduly severe. Three considerations in particular point to that conclusion. First, such a sentence could be justified only if these offences were at the middle or upper end of seriousness for offences of their kind. In my opinion, they were not. Although the circumstances of the assault are serious enough having the aggravating features of having occurred in the sanctuary of the victim’s own home, and involving a victim who was only 12 years old, it has to be borne in mind that the assault involved no physical contact, and occurred in circumstances where the appellant had no intention to make his victim afraid, but was reckless as to that possibility. The offences of disorderly behaviour and refuse name and address could not be regarded as the most serious of their kind either.
Secondly, the sentence of 12 months imprisonment must be the figure reached after credit for the appellant’s guilty plea. A discount of at least 25 per cent would have been reasonable in these circumstances. That suggests that the Magistrate’s starting point must have been at least 16 months imprisonment. Such a starting point is, in my respectful view, plainly unreasonable.
Thirdly, a sentence of 12 months imprisonment seems inappropriate when one has regard to the appellant’s antecedents, good character and personal circumstances to which I refer below. Those circumstances indicate that the appellant’s conduct may be regarded as an aberration by a person of otherwise good character.
In my opinion, the sentencing exercise in the present case has miscarried and intervention by this Court is appropriate.
Re-consideration
The appellant does not have an adverse criminal record. He has one previous court appearance. In 1999 he was charged with being unlawfully on premises. The Magistrate accepted that that offence occurred during the course of the appellant’s participation in a group protest at the felling of a forest. The Magistrate does not appear to have regarded that offence as being particularly significant in the context of the present offences. I agree with her in this respect.
The appellant has a good work background, having been involved in gardening, maintenance and nursing. He has obtained tertiary qualifications in aged care and has worked with disabled children and respite care. In addition, the appellant has studied psychology at university. Since this offending, the appellant has commenced university studies in social work. This background lends support to the appellant’s submission that he has good insight into the nature, and circumstances, of his offending and to the sincerity of his expressions of remorse, and suggests that the prospects of him re-offending are low.
The appellant is in a stable relationship and is the father of one child, a girl aged approximately 13. From the ages of two and a half and eight years, he was the sole carer of his daughter. He now shares that care with his partner.
The appellant has been an active member of the Country Fire Service at Carey Gully for approximately 18 months.
The Magistrate was provided with a reference from a Dr B Doube, for whom the appellant has worked two days per week for most of the past four years. Dr Doube speaks well of the appellant’s character, trustworthiness and reliability. He intends to continue to offer the appellant employment.
The Magistrate accepted that at the time of the offending, the appellant was suffering from depression resulting, in particular, from his relationship with his fiancé, and from some business pressures. The depression contributed to the appellant’s consumption of alcohol on 1 December 2003 and, therefore, his intoxication. The Magistrate received, and accepted, a report from the appellant’s general practitioner in which two relevant opinions were expressed. First, that a combination of alcohol and depression was a significant part of the reasons for the appellant’s behaviour on 1 December 2003; and secondly, that a change in the appellant’s circumstances since that date indicated that relapse into depression and excessive consumption of alcohol was unlikely. Furthermore, the appellant has been counselled about his behaviour by his general practitioner. More professional counselling has not been recommended.
I also take account of the fact that the appellant served 14 days in custody after having been sentenced by the Magistrate before being released on bail pending this appeal.
In all of the circumstances outlined above, including the relative seriousness of the offence of assault, I do not consider that a sentence of imprisonment is appropriate. The requirements of general and personal deterrence, which the Magistrate referred to, can be met in other ways. The overall good character of the appellant, and his remorse, indicate that imprisonment is not required. In my view, it is appropriate to deal with the appellant by entering a conviction without further penalty upon him entering into a bond to be of good behaviour for a period of two years. It will be a condition of the bond that the appellant perform 64 hours of community service. In coming to that conclusion, I take into account, in particular, the fact that the appellant has spent 14 days in custody in connection with this offending.
Order
The orders of the Court are:
1.        The appeal against conviction is dismissed.
2.        The appeal against sentence is allowed.
3.The convictions entered by the Magistrate, and the sentence of imprisonment of 12 months imposed on 28 April 2004 are each set aside.
4.        In lieu thereof, a conviction on each offence is entered.
5.Pursuant to s 18A of the Criminal Law (Sentencing) Act, I impose one penalty in respect of all three offences.
6.Upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of two years and to comply with all conditions of the bond the appellant is discharged.
7.        It is to be a condition of the bond that:
(a)      the appellant perform 64 hours of community service;
(b)the appellant is to appear before the Magistrates Court for sentence if the appellant fails during the term of the bond to comply with the conditions of the bond.
8.The orders of the Magistrate with respect to court fees, levy and prosecution costs are to stand.