Foster v Police No. Scgrg-98-866 Judgment No. S6842

[1998] SASC 6842

FOSTER V POLICE

[1998] SASC 6842
Magistrates Appeal
Perry J (Ex Tempore)
1 The appellant appeals against the sentences imposed in the Magistrate's Court sitting at Port Pirie on two admitted charges of assault occasioning actual bodily harm, contrary to s40 of the Criminal Law Consolidation Act 1935. Both offences occurred at Port Pirie, the first of them on 14 September 1997, and the second on 27 September 1997.
2 The appellant was represented by counsel in the Court below.  After hearing submissions on his behalf the learned sentencing magistrate imposed a sentence of one month's imprisonment on the first charge, and on the other a sentence of two months’ imprisonment, cumulative upon the first sentence.
3 On separate charges which are not the subject of the appeal, but as to which the appellant pleaded guilty on the same occasion, namely resisting police and larceny, the learned sentencing magistrate entered convictions without penalty. 
4 The appellant was then aged twenty-two years and is now aged twenty-three.  As to his antecedents the learned sentencing magistrate had the benefit of the very detailed and helpful report furnished by a senior forensic psychiatrist, Dr O'Brien, of the Forensic Mental Health Services.  He also had the benefit of an equally helpful pre-sentence report prepared by a social worker. 
5 From this material it appears that the appellant has a criminal record dating back to 1991, but as Mr Apps pointed out during the hearing of the appeal, no prior convictions involving violence.  He had a most disturbed upbringing.  His parents separated at an early age, following which, at the age of six, he became a ward of the State.  He attended many schools, after which he pursued unskilled labouring jobs in South Australia and elsewhere.  He has children by two broken relationships. 
6 During his teens the appellant took to drugs and alcohol.  Although not found to be suffering from a psychiatric illness, it is clear from Dr O'Brien's report that he suffers from an inability to control his anger.  Although he denied at the time he was seen by Dr O'Brien that he was then committing substance abuse, it was Dr O'Brien's view that he would need ongoing assistance both to control his anger and his substance abuse.
7 Both of the offences in question were committed against a background of excessive drinking. 
8 From the affidavit of the police prosecutor, it appears that the learned sentencing magistrate was informed that the earlier assault was committed in the early hours of Sunday morning at local football club premises known as the Port Rooms.  Before he came to the premises the appellant had consumed a considerable quantity of alcohol. 
9 It does not appear that he was at the rooms for long.  But when he emerged, he set upon a young man sitting in the front porch of the club rooms, who had done nothing to provoke such an attack.  The appellant punched the victim repeatedly about the face, as a result of which the victim received injuries requiring five stitches to a cut to the left eye, black eyes, and bruises to other parts of the face.  Police attended during the course of the assault and intervened between the appellant and the victim. 
10 A few days later, on 20 September 1997, he was interviewed at his home, where he made full admissions and appeared contrite.  He was arrested and as I understand from Mr Muscat who appears before me for the respondent, was then released on police bail.
11 I have referred to the sequel to that first assault, because it seems to me to cast the second assault in a more serious light.  I say that because far from learning from that first experience and from the subsequent attendance of the police, and in apparent disregard of the need to keep out of trouble while on bail, about fourteen days after the first assault which was about a week after he had been visited by the police, the second assault was committed.
12 This assault also occurred in the early hours of the morning after the appellant had been drinking.  The appellant set upon another man who was sitting on a window ledge outside the Central Hotel at Port Pirie.  After shouting at him, the appellant threw the victim to the ground, bent over him and punched him with a clenched fist to the left eye.  As a result the victim received five stitches to a deep cut below the left eye and five stitches to a cut in his right elbow, together with swelling and deep bruising to and around the left eye.  According to a victim impact statement which was placed before the learned sentencing magistrate, the victim, a young man of about twenty-six years of age, was hospitalized for two days and as I have said, required a number of stitches to the face. 
13 During the course of her sentencing remarks, the learned sentencing magistrate said:
"All that was put in mitigation was that you are contrite, that you made full admissions, including the fact that there was no provocation and that you were extremely intoxicated and therefore, according to your view of things, not responsible for what happened!  The fact is, your drunkenness is a matter of aggravation, not mitigation."
14 The learned sentencing magistrate described the attack on the second victim as brutal, but I think that description is apt to describe both offences, which as I have said were completely unprovoked.  What is of particular concern is that the appellant apparently did not take himself in hand after the first incident, and very soon thereafter committed another act of violence with quite serious consequences for the victim.
15 The only grounds of appeal raised in the notice of appeal with respect to both sentences, is that the learned sentencing magistrate is said to have fallen into error in failing to suspend the sentences of imprisonment which she imposed. 
16 In his most helpful submission, Mr Apps emphasized the point to which I have already referred, namely that the appellant had no prior offences involving violence.  He emphasized also that the appellant had taken steps to rehabilitate himself and to control his anger, and that he was contrite.  He submitted that the appellant was still a young man, and that the punitive and deterrent aspects of sentencing needed to be balanced against the creation of an opportunity for rehabilitation wherever there was any prospect of that being effected. 
17 In support of the latter submission he referred to the decision of the Full Court in Vartzokas v Zanker   more particularly the observations made by King CJ in that case.  In the course of his judgment King CJ said :
"Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen."
18 King CJ went on to observe that rehabilitation is not confined to offenders who fall into particular classes of offending.  It applies wherever the circumstances are such as to give some hope for the rehabilitation of the offender, and where other aspects of the criminality involved are not such as to balance out the desirability of appointing an opportunity for rehabilitation.  However Vartzokas was a case in which the sentencing magistrate had made observations which were found to be indicative of an error of principle,  namely, that rehabilitation as an object of sentencing was to be confined to a narrow class of offenders.  That is a point of distinction which is important for present purposes.
19 In this case I am not satisfied that the learned sentencing magistrate's extempore remarks on sentence are indicative of any failure to apply proper sentencing principles as to rehabilitation.  As to that, Mr Apps submitted that the passage in her reasons to which I have earlier referred was indicative of error, in that neither in that passage nor elsewhere in her sentencing remarks did she refer to the question of rehabilitation.  However, her remarks were, as I have indicated, made extempore and after she had had the benefit of submissions by counsel and of the psychiatric report and the social worker's report.  She was asked to suspend any sentence, which she otherwise might have felt inclined to impose.  She was an experienced magistrate and must clearly have recognised that creating an opportunity for rehabilitation was one of the sentencing options to be considered.
20 It is not to be thought that merely because a sentencing magistrate does not refer to all options, or even specifically to the question of rehabilitation, everything has not been considered which might be relevant to the sentencing process. 
21 That is not to say that in a particular case, even although the sentencing remarks may not expressly refer to matters which might be thought to be indicative of an error in principle, this Court will not interfere.  On the contrary, it can sometimes be said that simply by looking at the sentence under appeal, it is only explicable on the basis that some error has occurred. 
22 But that is not the case here.
23 While it is true that not every judge or magistrate would have taken the course which was taken in this case, that is not the test.  It is encumbent upon the appellant to identify some error, either express or implicit in the sentencing process.
24 Whether or not to suspend was purely a matter for the discretion of the learned sentencing magistrate.  This court has said on a number of occasions that generally speaking, a certain amount of latitude must be given to magistrates sitting in country towns, and their view of what might be needed in order to maintain law and order in such a setting must be accorded respect. 
25 These were two very serious assaults.  If there had been only one, the situation might have been different.  But given that there were two following closely upon each other and given their seriousness and the other matters to which I have referred, in my opinion there was no such error disclosed as would justify interference by this Court. 
26 The appeal is dismissed.