Frank v Police

FRANK V POLICE
[2000] SASC 245

Magistrates Appeal

LANDER J. This is an appeal against sentence. The appellant was charged with four offences on two informations; on the first, with the assault of a family member, Natasha Coulthard and failure to comply with a domestic violence restraining order; on the second, with unlawfully wounding a police officer and assaulting a police officer with intent to resist or prevent his lawful apprehension. All offences were alleged to have occurred on 28 June 1999 at Indulkana.
He pleaded not guilty but after a hearing in the Magistrates Court he was convicted of all four offences.
The Magistrate found that the appellant had thrown rocks at Natasha Coulthard one of which had hit her and caused her to fall to the ground. The appellant then stood over her with a stick, a Nulla Nulla, and struck her. Upon those findings he was convicted of the charge of assault on a family member.
The appellant admitted in his evidence that he knew he was not allowed to be Indulkana but went there because he was asked to do so by Natasha Coulthard. On those admissions he was convicted in respect of the second charge.
After he had committed those two offences a number of persons tried to convince the appellant that he should give himself up to the authorities. He refused. Police at Marla were called and four police officers attended. They and two Aboriginal aids tried to convince the appellant to give himself up. He ignored all suggestions to surrender himself and left his house brandishing a knife. He threatened to kill himself. He also threatened to cut police and kill police. He told the police that they would have to fight him to arrest him. He ran away from the police officers and was pursued by Senior Constable Adams. When Senior Constable Adams came close to the appellant, the appellant struck out with his knife and stabbed Senior Constable Adams in the leg.
The appellant claimed that Senior Constable Adams had struck him on the forehead with a baton causing a cut to the appellant’s head. That claim was specifically rejected by the Magistrate.
On those findings the Magistrate found the appellant guilty of the third and fourth offences.
The cut to Senior Constable Adams’ leg was significant. It required 12 sutures and he was off work for two or three weeks.
A victim impact statement was provided by Senior Constable Adams. He claimed, in that statement, that the assault had affected him emotionally. He had become depressed, angry and experienced mood swings. His relationship with his wife had deteriorated due to his irrational mood swings. Senior Constable Adams consulted the police psychologist in relation to the matter.
The appellant was born on 22 September 1975 and therefore was 23 years of age at the time of the commission of these offences.
He is an Aboriginal who lives on the Pitjantjatjara lands at Fregon.
He has appeared before the courts reasonably regularly since about 1996. He has been convicted of disorderly behaviour, carrying an offensive weapon and failing to comply with bail agreements. He has also been convicted of escaping from custody. He has been convicted for four separate assaults. He has been convicted for 12 separate counts of assault police and two separate counts of resist police.
While the appellant has been convicted of a number of separate serious offences, he has been reasonably leniently treated.
In October 1996 he came before the District Court in respect of nine counts of assault police and two counts resist police. He was sentenced to six months imprisonment but the sentence was suspended. He breached the bond which supported the suspension and was dealt with for that breach and three other counts of assault in June 1998 in the same court. On that occasion he was sentenced to be imprisoned for 12 months. A non-parole period of four months was set. He served that sentence and the parole period. He was sentenced to a month’s gaol in April 1999 for the assault of Natasha Coulthard. It was that assault and conviction which gave rise to the restraint order on 15 April 1999.
That order required him to refrain from approaching or communicating in any way with Natasha Coulthard and attending within a one kilometre radius of the Indulkana Community. These offences occurred about two months after the restraint order had been made and about a month after the appellant had been released from prison where he had served the sentence for the conviction which gave rise to the restraint order.
Natasha Coulthard and the appellant had shared a relationship and Ms Coulthard has a child by the appellant.
The appellant was taken into custody on the day that these offences occurred, that is, on 28 June 1999, and he was sentenced by the learned Magistrate on 3 February 2000. He had thus spent a little more than seven months in custody awaiting trial.
The learned Magistrate sentenced the appellant to nine months imprisonment in respect of the charge of assault on Natasha Coulthard and the breach of the restraining order. He sentenced him to a further 18 months imprisonment in respect of the charges of unlawful wounding and assault. The second sentence was made cumulative on the first making a head sentence of 27 months. He set a non-parole period of 22 months. He ordered the sentence to commence on 3 February 2000.
It was faintly argued by the appellant that the sentence was in fact back dated to 28 June 1999. The appellant argued that the Magistrate did not, in his sentencing remarks, specify the date on which the sentence of imprisonment was to commence.
He argued, therefore, that the provisions of s 30(6)(b) of the Criminal Law (Sentencing) Act 1988 took effect and the sentence must be taken to have commenced on the day on which the appellant was taken into custody.
It is true that the sentencing remarks do not record the Magistrate specifying a date on which the sentence was to commence. However, the informations both bear endorsements minuting conviction and sentence. The first information bears an endorsement that the sentence of imprisonment was to commence “forthwith”. The endorsement on the second information shows that the sentence of imprisonment was to commence at the expiration of the sentence imposed on the first information and the non-parole period was to commence forthwith.
Both endorsements are signed and dated by the Magistrate. The endorsements satisfy the obligations under s 70 of the Summary Procedure Act 1921 and constitute, in my opinion, a minute of the conviction and sentence. The sentence was to commence on 3 February 2000.
Not only does the record show that the sentence was to commence on 3 February 2000 there is no doubt, because of what transpired later that day, that the appellant’s counsel understood the sentence was to commence on 3 February 2000.
Both before and after sentence the learned Magistrate was reminded that the appellant had spent seven months in custody.
After sentence, counsel for the appellant indicated to the learned Magistrate that if the period of seven months already spent in custody was added to the sentence of 18 months for unlawful wounding and assault, the total of 25 months would be one month beyond the Magistrate’s jurisdictional limit for imposing sentences of imprisonment.
The learned Magistrate was asked to recall the sentence and rectify it under s 9A of the Criminal Law (Sentencing) Act. It was put to the learned Magistrate that it would be appropriate to back date the sentence to 28 June 1999. Clearly, that submission would only have been made if counsel understood the sentence to commence that day.
The learned Magistrate recalled the matter and exercised power under s 9A of the Criminal Law (Sentencing) Act to reduce the sentence for the convictions for unlawful wounding and assault from 18 months to 16 months. He did not back date the sentence. He made no adjustments to the non-parole period.
The Magistrate sentenced the appellant to two separate and cumulative terms of imprisonment. In my opinion, that was appropriate. Because of the seriousness of the offences both sentences had to be terms of imprisonment. These were two separate and distinct incidents, albeit both of them occurring on the same day. It was appropriate, therefore, to impose two sentences, one on each of the informations: Attorney-General v Tichy (1982) 30 SASR 84 per Wells J at 93.
This appeal was lodged on 16 May 2000 and as I have already indicated relates to sentence passed on 3 February 2000.
The appeal is out of time and cannot proceed unless I make an order extending the time within which to appeal to the date of the filing of the notice of appeal.
The only reason given for the delay in the institution of this appeal is that the solicitor employed by the Legal Services Commission and responsible for this matter had a high workload involving visiting circuit courts in remote areas and that occasioned the delay. I am told the delay is no fault of the appellant.
That perfunctory explanation is unsatisfactory. It is really not good enough for the Legal Services Commission to simply indicate that it is too busy to observe the court’s time limits and expect the court to extend the time within which to appeal without further inquiry. During this appeal I advised Mr Katsaras, who was not in any way responsible for the delay, that I was not satisfied with the explanation which had been given.
He informed me that he could not give any better explanation because the solicitor who had been responsible for the filing of the appeal was now on long service leave and in Alaska. He was not expected to return to his duties with the Commission until 4 September 2000.
It would not have been fair to the appellant to adjourn this appeal for two or perhaps three months to obtain a better explanation. I therefore allowed the appeal to go forward, notwithstanding the unsatisfactory explanation which had been proffered to the court.
If the delay had been short and a reasonable explanation had been given it would be appropriate to extend the time for appeal “provided that there is a question which justifies serious consideration”: R v Brown [1963] SASR 190 at 191.
However, in this case, the delay is not short nor has a reasonable explanation been proffered. In those circumstances, I need to be persuaded that there exists, by refusing to extend time, an apprehension that a miscarriage of justice might occur: R v Balchin (1974) 9 SASR 64 – 65; R v Trotter (1979) 22 SASR 64 at 65.
I cannot determine whether an extension of time should be granted without first determining whether the appeal has merit.
The original notice of appeal identified only one ground of appeal namely that the sentence imposed was manifestly excessive.
When the matter came on for hearing the appellant sought leave to amend his grounds of appeal so as to specifically complain of the Magistrate’s failure to take into account the period spent in custody awaiting trial or, in the alternative, the Magistrate’s failure to back date this sentence to the date upon which the appellant was taken into custody.
The appellant also sought to amend his notice of appeal to complain about the non-parole period and in particular that the non-parole period had not been reduced by having regard to the time that he spent in custody.
The appellant maintained that the sentence was manifestly excessive.
There being no objection, I gave leave to the appellant to amend his notice of appeal.
The thrust of the appellant’s argument on appeal was that the learned Magistrate failed to have regard to the time spent in custody by either reducing the head sentence and the non-parole period or alternatively dating the sentence from the date upon which the appellant went into custody.
The difficulty with the appellant’s submission is that the learned Magistrate said that, in arriving at the sentence which he was to impose, he took into account the time that the appellant had spent in custody on remand. Indeed, the learned Magistrate said;
“I take into account the time he has spent in custody on remand. Clearly there was good reason why he was remanded in custody pending the determination of these matters. I take into account all other submissions put to me by his counsel.”
It is clear that the Magistrate has had regard to the time that the appellant has spent in custody. It was suggested that whilst the Magistrate said he took that matter into account, that did not mean that he had reduced the sentence by reason of that matter. I cannot accept that submission. In saying that he took that matter into account the Magistrate must have meant that he had reduced the sentence he would otherwise have imposed because of that matter. There is no doubt, in my opinion, that he should have indicated whether he had taken into account the whole or only part of the time spent in custody, but that is another matter.
Moreover, as the appellant has established on this appeal, the learned Magistrate was reminded after sentencing the appellant that the appellant had spent more than seven months in custody and was well aware of that fact when he rectified the sentence under s 9A of the Criminal Law (Sentencing) Act.
It is not possible, in my submission, for the appellant to successfully argue that the learned Magistrate failed to take into account the time spent in custody prior to sentence.
However, I do think because of the remarks made by the Magistrate, the way in which the sentence was originally constructed and the variation by rectification, that the Magistrate did not give the appellant credit for the whole of the time spent in custody. I think if he had he would have said so. More importantly, he would not have varied the sentence by reducing it by two months if he had already given full credit to the appellant. I do not believe even after the variation that the Magistrate gave the appellant full credit for time spent. For reasons which I will give, I think in that respect the Magistrate fell into error.
It was submitted that if a person has spent time in custody prior to sentence that the court should back date the sentence to the date when the person went into custody in respect of those offences. I agree that that is the preferable course: R v Pahuja (No 2) (1989) 50 SASR 551 at 563; R v McHugh (1985) 1 NSWLR 588 at 590.
It is preferable for the reasons given by White J in R v Pahuja (supra) and Street CJ in R v McHugh (supra). Passing a sentence in that way allows the prisoner and all other interested persons to know the real sentence which has been imposed. It allows the prisoner to know that the time spent in custody has in fact counted. It guards against requiring a party to spend too long in prison before parole becomes available. If a court simply has regard to time spent in custody there is a real risk, when considering the non-parole period which must be set, that the court may overlook that the person to be sentenced has actually served the whole of the time for which account has been given.
There is another matter which has to be taken into account. Section 37A of the Correctional Services Act 1982 allows the Chief Executive Officer of the Department of Correctional Services in his or her absolute discretion to release a prisoner from prison to serve a period of home detention. The Chief Executive Officer is not entitled to release a person from prison on home detention unless, in the case of a prisoner serving a sentence in respect of which a non-parole period has been fixed, the prisoner has served at least one-half of that non-parole period.
If a person spends a significant period in prison prior to sentence, and no adjustment or no adequate adjustment is made to the non-parole period to reflect the time already spent in prison, that person also loses the prospect of being released on home detention for the period for which account has not been given in the non-parole period.
But that does not mean that the failure to back date the sentence is by itself an error.
Section 30 of the Criminal Law (Sentencing) Act allows the court to take alternative courses of action when imposing a sentence of imprisonment on a person who has spent time in custody prior to sentencing. The court may back date the sentence to the day upon which the prisoner was taken into custody: s 30(2)(b). Alternatively, the court may make an appropriate reduction in the sentence having regard to the time spent in custody: s 30(2)(a). When the legislation specifically provides for a course of action it cannot be said to be an error to adopt that course. Indeed, in some cases, the sentence cannot be back dated: s 75 Correctional Services Act; R v Bartels (1986) 44 SASR 260. In some other cases, where some of the time has been spent in custody and some on bail, it might not be possible to back date the sentence, but it might be preferable to simply allow for the time spent in custody.
The sentencing process must be transparent. It must be so because the prisoner is entitled to know, when the prisoner has been sentenced to a term of imprisonment, exactly how the sentence has been constructed. For example, the prisoner is entitled to know, if he or she has pleaded guilty, the credit which has been given in the sentencing process: R v Harris & Simmonds (1992) 59 SASR 300.
So also, if a prisoner has spent time on remand for the offences for which the prisoner is to be sentenced, the prisoner is entitled to know, if the sentence is not back dated, whether the court has taken into account the whole or any part of the time spent in custody pending sentence.
In my opinion, provided there are no complicating factors of the kind to which I have referred, it would be preferable to back date the sentence to the date when the prisoner went into custody.
If for some reason the court believes the better sentencing option would be to simply take into account the time spent in custody, in my opinion, the court ought to say why that is so and at the same time indicate whether the court has taken into account the whole of the time spent in custody or some part of it. If the court is not taking into account the whole of the time spent in custody, then the court should explain in the sentencing remarks the reasons why only part of the time spent in custody is to count in the sentencing process. Ordinarily, the whole of the time spent in custody would be taken into account in fixing the appropriate sentence: K v SA Police (1994) 175 LSJS 195.
There was no reason in this case not to back date this sentence. The appellant was taken into custody on the day of the offences. He remained in custody for the whole of the period until sentence. He was not in custody for any other offence. He was not in breach of any other court order, any bond or any parole. The sentence should have been back dated to 28 June 1999.
The appellant maintained that the head sentence was manifestly excessive.
I cannot agree with that submission. There were, as I have said, two separate incidents. The first incident involved a serious assault on a woman. This was the same woman whom the appellant had assaulted about two months before and for which he had been imprisoned. He had also been subjected to a restraining order.
I do not believe that a sentence of imprisonment of nine months having regard to the appellant’s antecedents was, in the circumstances, manifestly excessive.
The second incident involved a serious wounding of a police officer who, in the execution of his duty, was trying to restrain the appellant.
The police officer had tried to reason with the appellant and had tried, as had his colleagues, everything possible to defuse the situation.
I do not believe that a sentence of imprisonment of 16 months for such a serious assault on this police officer was manifestly excessive.
Having regard to the appellant’s antecedents and, in particular, his convictions for assault and assaulting and resisting police officers, in my opinion, it cannot be said that the sentences passed in respect of the assault and the breach of restraining order, and the sentence passed in respect of the unlawful wounding and assault, are manifestly excessive.

In reaching the conclusion that these sentences were not manifestly excessive I have not overlooked the decision of Wood J in R v Fernando (1992) 76 ACrimR 58 and, in particular, the propositions he propounded in those reasons.
I have also had regard to the decisions of Perry J in Police v Abdullah (1999) 74 SASR 337 and Ingomar v Police (1998) 72 SASR 232.
In R v Fernando (supra) at 63, Wood J said:
“That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality”.
It is the case that this appellant is an Aboriginal person who suffers the deprivations and disadvantages identified by Wood J. I am conscious of the fact that he might find the serving of a term of imprisonment significantly more difficult that a non-Aboriginal person. However, I do believe that the seriousness of these offences and the appellant’s record require a term of imprisonment of the kind imposed by the learned Magistrate.
It is clear that the leniency which has been offered this appellant on previous occasions has not brought home to him the seriousness of his conduct. Aspects of personal and general deterrence in my opinion, notwithstanding the appellant’s Aboriginality, require a sentence of the kind imposed.
The appellant complains in the alternative that the non-parole period is too high. That argument is put on the basis that the non-parole period relative to the head sentence is too high. In the alternative, it is put that, having regard to the time served before sentence requiring the appellant to serve a further 22 months in a total package of 32 months, demonstrates that the non-parole period is too high.
Of course if I back date the sentence, which I will, that will mean that in fact the appellant will be liable to serve 25 months imprisonment and it is against that sentence that the non-parole period must be set.
It is not for this Court to substitute the exercise of its discretion for that of the Magistrate. This Court cannot interfere with a sentence unless it can be shown that the Magistrate acted on a wrong principle or misapprehended the facts by taking into account facts which were irrelevant or failing to take into account facts which were relevant.
Of course, it will happen that the sentencing remarks do not disclose error of principle or misapprehension of the facts but the very facts and circumstances surrounding the offence and matters personal to the offender will demonstrate that there must have been an error on the part of the Magistrate.
In my opinion, putting aside the failure to back date the sentence, the appellant cannot point to any error of principle in the sentencing Magistrate’s remarks or show any misapprehension of fact on the part of the learned Magistrate.
The appellant could only succeed if it could be said that to require a person to serve a non-parole period of 22 months in a head sentence of 25 months indicates, by itself, error.
In my opinion it does. The appellant is a young man. He has all the disadvantages to which I have referred. He will find it difficult to actually serve his time. He has previously been paroled and successfully completed the parole. Rehabilitation is an important factor in this sentence. A non-parole period of 22 months is likely to impede rehabilitation. The non-parole period set was manifestly excessive.
I believe a non-parole period of 15 months would be appropriate.
For these reasons, I believe the appeal has merit and not to extend the time for appeal would visit an injustice upon the appellant. There will be an order extending the time within which to appeal.
The orders of the court will be:
Extend the time for appeal until 16 May 2000.
Appeal allowed.
The sentences of the learned Magistrate set aside.
On the first information there will be a sentence of imprisonment of nine months.
On the second information there will be a sentence of imprisonment of 16 months which will be cumulative upon the sentence imposed on the first information.
I set a non-parole period of 15 months.
I direct that the sentences, including of course the non-parole period, to be taken to have commenced on the day in which the appellant was taken into custody, 28 June 1999.

[2000] SASC 245

19 July 2000