Fraser v Police No. Scgrg-97-1595 Judgment No. S6531

[1998] SASC 6531

FRASER v POLICE

Matheson J (ex tempore)

The appellant was charged on a complaint for that on 22 September 1996 at Windsor Gardens, without lawful authority, he damaged one television, one stereo cabinet, one glass coffee table top, one jug and five glasses, the property of Danielle Benton.  He was further charged on an information with the following two counts:

1. On 20 October 1996 at Everard Park in the said State, interfered with a motor vehicle without first obtaining the consent of Paul Michael Fewster, the owner thereof. 

1. On 20 October 1996 at Everard Park in the said State, resisted Jason Scott Blucher, a member of the police force in the execution of his duty."

He pleaded guilty to all these charges before a magistrate in the Magistrates Court at Adelaide.  On the complaint he was convicted without penalty and on the information he was sentenced to six months imprisonment to commence at the expiration of the unexpired portion of his parole.  The learned magistrate fixed a two month non parole period to commence on 17 November 1997. 

He now appeals against the penalty imposed, and in her usual thorough and persuasive plea, Ms Abbott, counsel for the appellant, has pressed upon me that the learned magistrate should have suspended the sentence he imposed. 

The maximum penalty for the property damage count was imprisonment not exceeding two years, for the count of illegal interference, having regard to the prior record of the appellant, the penalty was a term of imprisonment of not less than three months and not exceeding four years, and for resisting a police officer, the maximum penalty was six months or a fine of $2,000. 

At the time of the commission of the offences the appellant was 25 years of age and was on parole.  He had a bad record for offences of dishonesty, including nine prior convictions for illegally interfering with a motor vehicle.  At the time of the commission of his first offence, he had seven months and four days to complete his parole and at the time of the commission of the subsequent offences, he had six months and six days to complete.     

There is no real dispute as to the facts, which were as follows.  At about 11.45 pm on Sunday the 20th October 1996, the victim, Michael Fewster heard a motor vehicle's warning device which sounded familiar to his own vehicle sound on two occasions.  He states he looked out the window of his   unit and saw a male person, the appellant in this matter, pushing his vehicle forwards in an easterly direction about 5 metres from the number 6 unit car park.  He states he saw the appellant then sit in the driver's front side of his vehicle and that he appeared to be going through the contents of the glove-box.  The victim states he then saw the appellant get out of the vehicle and try the locks of other vehicles in the unit car park.  He states he then saw the appellant sit back in his vehicle with the door open.  He then phoned police.  He further states that on his later inspection the glove-box was open and the contents were removed and placed on the dashboard.  He states that there was urine on the driver's side floor of his vehicle.  He states that he had parked and secured his vehicle, a white Suzuki 4WD, registration number SA UGY-092 in car park number 6 of the units.  He further states that he did not know or had not seen the appellant before. 

At about 11.55 pm on Sunday the 20th October 1996, Police on uniform mobile patrol attended at 1 Hale Street, Everard Park.  Upon arrival police saw a male person, now known as the appellant, sitting in the front driver's side of the white Suzuki with the door open.  Police further saw the glove-box of the vehicle open and its contents on the dashboard and it appeared that the appellant had urinated in the front driver's side of the vehicle.  The vehicle was about 5 metres east of the car park space for unit number 6.  Police were then approached by the victim who had a conversation with them.  As a result of this conversation Police Officer Blucher arrested the appellant.  While the appellant was being informed he was under arrest Police Officer Blucher grabbed hold of the appellant’s left forearm.  The appellant's right clenched fist then pushed against Police Officer Blucher's left shoulder area and the appellant grabbed Police Officer Blucher's jumper and said "Fuck off, I'm not going anywhere with you, I'm going home."  Police Officer Blucher then restrained the appellant on the ground and handcuffs were placed on him for safety of Police and the appellant.  The appellant was moderately to grossly affected by alcohol and was uncooperative.  The appellant stated that the registered owner of the vehicle he was sitting in was a friend of his and refused to give his friend's name.  When asked, he said "Fuck off, you work it out smarty". 

In relation to the damaged property matter, the victim is Danielle Benton of Windsor Gardens.  At about 6.30 am,  on Sunday the 22 September 1996, Benton was at home with the appellant, when they had an argument.  As a result, the appellant who had arrived home earlier in a fairly drunk condition, became aggressive and started shouting and throwing all types of property over the floor in the bedroom and in the lounge room.  As a result, he damaged the property referred to in the complaint.  At about 6.40am on Sunday, 22nd of September 1996 police attended.  On arrival, Police heard an argument from inside.  Police spoke to both the victim and the appellant through a locked screen door as the key had been lost.  Police gained entry though the lounge room window to speak to both parties.  Police saw that property had been thrown around the floor in the lounge room and in the bedroom with damage to the abovementioned property.  The key was found on the floor and Police separated the two persons because the appellant was very aggressive towards to the victim.  After speaking to the appellant outside, he calmed down.  The victim was willing to try and allow him to remain in the flat but on returning to the flat, the appellant became upset and started throwing some glass against the door.  Police re-entered the flat and arrested the appellant for the damage cause. Upon being arrested, he became very vocal and demanded that as he was under arrest he should be handcuffed. Police then took hold of his arms to lead him outside and he started to struggle. He was then handcuffed and subsequently conveyed to the Holden Hill Police station where he was charged.  When first spoken to the appellant refused to give his name or address, but then gave his name and stated that he had smashed the abovementioned property.  He then refused to answer any further questions.

The appellant was represented before the learned magistrate by Ms Abbott.  She called as a witness Mr Terry Reynolds.  I accept that his evidence included this paragraph:

"From my knowledge of what I've seen, I can say he has rehabilitated himself completely."

Ms Abbott also tendered a report from the Royal Adelaide Hospital, which indicated that, at the time of the offence charged on complaint, the appellant was very substantially under the influence of alcohol and drugs.   In her submissions Ms Abbott stressed that the appellant had not committed any further offences after the commission of those charged on information.  She referred to the appellant's tragic background, which included the following:

The appellant was sexually abused by an uncle for approximately twelve months when he was aged eight years.  The abuse consisted of both oral and anal rape.   The appellant did not advise anyone of the abuse until informing Mr Reynolds and his mother at the age of eighteen.  The effects of this trauma have remained untreated and are the likely cause of his abuse of drugs and alcohol as an adult.

The appellant's mother was an alcoholic and their poor relationship was evidenced by her reaction to his first informing her of the childhood abuse in saying, 'I   guess that explains why you're a poofter.'  In 1997 the appellant's mother eschewed the use of alcohol and consequently her relationship with the appellant has reformed.  The Appellant was inspired by his mother to also abstain from the use of alcohol and now visits his mother regularly.  During his last period of incarceration the appellant was raped by two inmates who were sharing his cell over a one week period.  It was submitted that this horrific experience rendered the threat of having to serve a further period of further incarceration as a severe and effective deterrent but also made immediate imprisonment a real threat to his rehabilitation.  The appellant suffers from symptoms of dyslexia and was only educated to the age of fifteen years.  He has had paid employment as a butcher's assistant but has been employed most of his adult life.    The appellant has spent many hours caring for friends who have suffered from the symptoms of AIDS and is currently in the role of caring for his friend and housemate, the said Terry Reynolds, who suffers from that disease.  The appellant has lost two close friends who have died from AIDS in the past three years.

I have read carefully the remarks as to penalty of the learned magistrate.   Although in several places his wording was not entirely appropriate, I am not persuaded that he overlooked any relevant consideration.  It is clear that he gave serious consideration to Ms Abbott's plea that the sentence should be suspended and that he gave adequate consideration to the fact that the appellant had not committed any offences after the offences charged on the information and to the evidence of Mr Reynolds.  However I cannot overlook the fact that the appellant failed to attend on two occasions in answer to his bail, and that for a lengthy period absconded.  It seems to me that this shows some contempt for legal procedures.  Moreover, the offences charged on the information were committed whilst he was on bail for the earlier offence of property damage.    I am quite unpersuaded that this court should interfere.  In my opinion the appeal should be dismissed.    There will be no orders as to costs.