Gaston v Police

[2004] SASC 222

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

GASTON v POLICE

Judgment of The Honourable Justice Gray

29 July 2004

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE

Appellant charged with property damage, resist arrest and assault police - convicted of assault police by spitting following a trial - sentence of two months imprisonment imposed - complaint on appeal that sentence is manifestly excessive and should have been suspended - further evidence received on appeal regarding appellant's personal circumstances - discussion regarding assaults on police - appeal allowed - sentence imposed by the magistrate set aside - appellant resentenced - appellant enters into a suspended sentence bond with conditions.

Criminal Law Consolidation Act 1935 (SA) ss 85(3); Summary Offences Act 1953 (SA) s 6(1), 6(2), referred to.
R v Smith (2003) 86 SASR 132; R v Fernando (1992) 76 A Crim R 58; Pye v Samuels (1972) 4 SASR 12; Miller v Huffa (1980) 24 SASR 595; Barry v Samuels (1975) 10 SASR 376; Dadleh v SA Police (1996) 66 SASR 352; Heatlie v SA Police (1993) 172 LSJS 94, considered.

GASTON v POLICE
[2004] SASC 222

Magistrates Appeal

GRAY J  

Introduction

1. On 14 July 2004 this appeal against sentence was allowed for the purpose of suspending a sentence of imprisonment imposed by a magistrate.  The reasons for allowing the appeal are now published.

2. The appellant was charged with intentionally damaging property to a value of less than $2,000.00,[1] resisting arrest by a member of the police force in the execution of his duty,[2] and assaulting a member of the police force in the execution of his duty.[3]

   [1] Section 85(3) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for an offence of damaging property causing damage that does not exceed $2,500.00 is imprisonment for a term not exceeding two years.

   [2] Section 6(2) of the Summary Offences Act 1953 (SA). The maximum penalty for the offence of resisting a police officer in the execution of his duty is a term of imprisonment not exceeding six months and a fine not exceeding $2,500.00.

   [3] Section 6(1) of the Summary Offences Act 1953 (SA). The maximum penalty for the offence of assault police is a term of imprisonment not exceeding two years and a fine not exceeding $10,000.00.

3. The appellant pleaded guilty to the offence of damaging property.  A conviction was recorded and an order made that he undertake 80 hours of community service.  The other two counts proceeded to trial.  However, at the close of the prosecution case a plea of guilty was entered to the charge of resist arrest.  A conviction was recorded and a fine of $200.00 imposed.

4. The appellant maintained his plea of not guilty with respect to the charge of assaulting a police officer in the execution of his duties.  The magistrate accepted the evidence of the police witnesses and rejected the evidence of the appellant.  A conviction was recorded and a term of imprisonment for two months was imposed.

   The Magistrate’s Findings

5. The magistrate provided detailed reasons with respect to his decision to convict the appellant.  In those findings disputed facts concerning the resist arrest charge were also resolved.  There has been no complaint about the conviction or the findings made.  The magistrate made the following findings of fact:

   That about 7 pm on 12 July 2004 Constables Fatchen and Van Dyk attended in a patrol car at the house at 41 Harris Crescent, Port Augusta.  Senior Constable Storr attended separately in a cage car.  Constable Fatchen had thought it desirable that a cage car attend in addition to the patrol car, having discussed their reason for attending with the supervising sergeant on a former shift;  that the person was present in the carport area attached to the house at 41 Harris Crescent.  He was seated.  He was drinking alcohol in the company of Patricia Muscat, Myra Gaston and his aunt and his aunt’s partner.  Also at the premises were several young children, estimated as between three and six in number.

   The officers approached the defendant.  Fatchen explained to him that they wished to speak to him and it would be necessary for him to go to the police station.  The defendant was not very cooperative, relit a cigarette and continued drinking.  He said that he made the rules at his house.  It became clear to Fatchen and Storr and Van Dyk that the defendant was not going to cooperate by going immediately to the police station.

   Fatchen and Storr took hold of the defendant and raised him from his seated position.  Fatchen informed him that he was under arrest for the offence of damaging property.  Fatchen took hold of the upper right arm and Storr took hold of the upper left arm of the defendant.  That for the first few paces the defendant did not have his feet on the ground.  Not obviously taking his body weight on his own feet.  Thereafter he did.  He began then to struggle by twisting and turning and attempting to break the officers’ grip.  Before that occurred he turned his head to the left and looked at Storr who had turned to face him.  The defendant then spat at Storr.  The saliva landed in the left temple area of Storr.  Almost immediately after that the defendant, who was continuing to writhe, pull[ed] himself free momentarily from the grip of Fatchen.  The officers then took the defendant to the ground and he fell heavily, making some contact with the divided fence.  That, at some point during the brief struggle the defendant’s face made contact with the ground.  The defendant was handcuffed, his hands behind his back, by Storr and Fatchen.  The defendant turned his head at some point then and spat but not at any particular person.  The defendant was put on his feet and taken to a cage car.

   I find that Storr was, at the time, a police officer who was in the execution of his duty in arresting the defendant on suspicion of having committed an offence of damaging property earlier on 12 February 2004.  I find that Storr did not consent to the defendant spitting on his person.

   I find the charge of assault police proved beyond reasonable doubt.

   The Appellant’s Antecedents

   Personal Antecedents

6. The appellant left school illiterate at the age of 15 years.  He moved to Adelaide to pursue job possibilities.  He could only obtain casual labouring work. Later he returned to reside in Port Augusta.  He is a 33 year old Aboriginal man who has the care of three of his children.  He receives a single parent pension.  He is in a relationship with a partner and there are two young children from that relationship.

   Criminal Antecedents

7. The appellant’s criminal antecedents involve a long history of offending, including offences of assault police in 1988; unlawful wounding in 1991; damaging property in 1993; hinder police and carry an offensive weapon in 1994, domestic violence and damaging property in November 1996; disorderly behaviour in February 1997 and June 1998 and hinder police in October 2001.  A sentence of 12 months imprisonment was imposed for the offence of unlawful wounding in 1991.  The offence of hinder police in 1994 led to a one month suspended term of imprisonment and the offence of damaging property in November 1996 resulted in a three month suspended term of imprisonment.

8. When sentencing the magistrate made the following remarks:

   Mr Gaston, I have found you guilty of the charge of assault police.  You have heard my reasons. I will not go over them again.  I regard the spitting as a deliberate act, spitting at the person of Constable Storr.  He was struck on the temple away from his eye and ear.  Both the potential for worry and harm is not as great as it might be in other cases where people have been spat at and the spittle lands in the eye or the mouth or the ear.  Nevertheless, it is the most unpleasant and dirty way of assaulting anybody and you should be left in no doubt that it is viewed seriously.  The usual punishment is a short period of imprisonment.  I cannot allow any discount in this instance.

   Ms Collins has raised the question of suspension.  In my view where there has been a lack of contrition in an assault of this nature and where the person is not a first offender, that would be inappropriate and you are accordingly convicted and sentenced to two months imprisonment to be served.

   As earlier observed the appellant was convicted and sentenced to two months imprisonment.

   With regard to the other offending, the magistrate stated:

   As to the damage property and the resist, you are entitled to credit for pleading guilty.  In the case of resist, you pleaded guilty at the end of the prosecution case.  You said you are willing to pay compensation.  You are convicted on that matter and ordered to do 80 hours community service within 8 months.

   …

   In my view the resist was at the lower end of the scale.  You were twisting and writhing.  You were quite harshly brought under control, handcuffed and put in the van.  In my view the appropriate penalty for the resist is a fine.  You are therefore convicted and fined $200.  Court fees to be paid and levies on each count.

   The Appeal

   Assault Police

   The Approach of the Courts

9. Courts have traditionally treated assaults against police officers as being more serious than ordinary assaults.

10. The primary reason for this is that police officers, whilst performing their duty of protecting the community, are likely to face violence.  To ensure that they are able to perform their duty, the law offers them extra protection.

11. In Pye v Samuels,[4] the defendant kneed a constable in the groin whilst he was taking part in an anti-war demonstration. Wells J, in considering the seriousness of the offence, observed:[5]

    …The legislature has, therefore, by those provisions, clearly demonstrated the seriousness with which it regards violence directed against police officers and other persons seeking to make lawful arrests. The reason is not far to seek. If the peace is to be kept, and the laws made for the safety and protection of our community are to be administered, those who, on behalf of that community, try to maintain the peace and uphold the law, will inevitably be called on to face violence directed against them. The law would, accordingly, be failing in its duty if it did not confer upon its agents a special measure of protection.

    [4] (1972) 4 SASR 12

    [5] (1972) 4 SASR 12 at 17-18

12. Due to the importance of the role that police fulfil within society, it is necessary that the courts treat the offence seriously so that the penalty will act as a deterrent. In Miller v Huffa[6] Walters J commented:

    In my view, actions calculated to endanger a police officer who is engaged in the performance of his duty and who is giving assistance in quelling an affray, under conditions of actual and apprehended danger, call for a kind of penalty which will serve as a deterrent.

    [6] (1980) 24 SASR 595 at 597

13. The court can consider the community’s current situation and attitude in assessing whether a serious penalty is necessary. In Barry v Samuels[7] the magistrate imposed the sentence of imprisonment on two grounds. The first ground was the vicious form of the attack, and the second was the need for deterrence as a result of increasing violence in Adelaide.

    Report on Police Safety

    [7] (1975) 10 SASR 376

14. The Australian Institute of Criminology study on ‘Occupational Health and Safety Risks Faced by Police Officers’ outlines features common in assault-related injuries.  It reports that the majority of assaults against police officers cause minor injuries and do not require time away from work.  Assaults are most common during an arrest or while restraining or escorting suspects. Contact with body fluids is the second most common cause of injury, the most common being physical force.

15. The report also identified the most common assailant characteristics. These include being male, alcohol or drug affected, aged between 15 and 29, having prior convictions and being unemployed or working in a “low status” job.  It was reported that a disproportionate number of assailants were indigenous.  Finally, the report outlines the risk of stress and fatigue to the assaulted police officers.

    Statistical information

16. The statistical information that this court has received confirms the seriousness of the problem of assault against police officers, generally in South Australia and particularly in Port Augusta.

17. The records of the Office of Crime Statistics disclose that from 1999 to 2002 the number of allegations of assaults against police in South Australia has steadily risen - from 427 in 1999 to 513 in 2002.  Each year this type of assault has constituted between 12.0 per cent and 13.4 per cent of all assault offences alleged.

18. The South Australia Police prepared statistics comparing the number of reported assaults against police from 1993/94 to 2003/04 in both South Australia and the Port Augusta area.  Each year between 3.1 per cent and 6.6 per cent of the state’s reported assaults against police occurred in the Port Augusta area.

    No presumption of imprisonment as the required penalty

19. In 1985, section 6 of the Summary Offences Act 1935 (SA) was amended to increase the level of penalties for the offence of assault police.  This was to recognise the seriousness of assaults against police officers.  Even so, there is no presumption that an immediate custodial sentence is necessarily the appropriate penalty for assaults on police officers in the execution of their duty.

20. In Dadleh v SA Police,[8] Perry J suspended a term of imprisonment for the offence of assault police:[9]

    …the sentence should be suspended. I say that principally having regard to the appellant’s youth and the fact that this was his first offence. Wherever possible the court approaches the sentencing of young first offenders on the footing that, so long as the seriousness of the offence is not such that an immediate custodial term must necessarily be imposed, such an offender should be given at least on opportunity towards rehabilitation.

    Perry J applied the remarks of Mullighan J in Heatlie v SA Police:[10]

    A term of imprisonment is only imposed when all other sentencing options have been eliminated, and upon being imposed consideration must be given as to whether it should be suspended in the circumstances of the particular case.

    [8] (1996) 66 SASR 352

    [9] (1996) 66 SASR 352 at 355

    [10] (1993) 172 LSJS 94

    The Complaint

21. On appeal it was submitted that the term of imprisonment imposed was manifestly excessive.  In the circumstances it was said that the sentence should have been suspended.  It was complained that when sentencing the magistrate failed to have regard to the appellant’s upbringing within an indigenous community with an exposure to alcohol and violence.  These factors, in the appellant’s special circumstances, were said to be mitigatory.

    Further Evidence

    Psychological Report

22. It was submitted that further evidence concerning the appellant’s health should be received on appeal.  Enquiries following sentencing revealed that the appellant had sustained a severe head injury in 1991.  A psychological report prepared in 1996 provided evidence relevant to sentencing.

23. With the consent of the Crown, counsel for the appellant tendered a recent psychological report.  This report set out in considerable detail the appellant’s personal history.

24. The appellant had a poor education record which left him with poor literacy and numeracy skills.  This has led to problems in obtaining employment and low self esteem.  The report confirmed the appellant’s exposure as a child to violence, both to himself and others, and to an environment in which the abuse of alcohol and drugs was endemic.

25. The appellant sustained a severe head injury following blunt trauma in 1991.  This left a sequelae, including ongoing headaches requiring prescription medication, dizziness and poor memory.  The appellant continues to suffer from a chronic post concussional syndrome.  His prognosis is poor.  It is probable that he suffers from some degree of mild brain damage.

26. These problems have been compounded by a significant history of drug and alcohol abuse.  There is evidence that the appellant’s head injury has led to low alcohol tolerance.  His personality profile includes a component of anger and aggression.  These personality traits are exacerbated by alcohol abuse.  His head injury is described as a secondary and exacerbating factor.

27. The reporting psychologist had the advantage of assessing the appellant on several occasions some years apart.  This allowed the following conclusions to be reached:

    I believe the main positive changes that have occurred in Mr Gaston’s life since I last assessed him are:

    -He has attempted to avoid legal conflict by remaining house bound and caring for his children.

    -Despite his problems, he appears to have been largely successful in raising [his children], until they decided to reside with their mother.

    -He has largely disassociated himself from negative peers.

    -His mother and father have overcome their alcoholism and consequently his relationship with them has improved.

    -He has ceased using amphetamine.

    -He has taken the significant first step of disclosing that he was raped as a child instead of abusing alcohol to cope.

    -He has developed an excellent relationship with his probation and parole officer … .

    The psychologist’s recommendations regarding the appellant’s rehabilitation were that he participate in a supervised, structured rehabilitation programme that included:

    -Referral to the Drug and Alcohol Service Council for the treatment of his alcohol and cannabis use.

    -Random urine drug screens.

    -A relapse management programme should be implemented to deal with relapses of his drug problems.  The purpose of this intervention would be to encourage him to be honest regarding any drug relapse so that it could be prevented from escalating into an ongoing addition and lead to offending.  For example, it could be arranged for him to have a respite admission for a experienced a single relapse of his drug addiction.

    -A case manager who has weekly contact with him to provide him with support and guidance.

    -He would benefit from cognitive-behavioural therapy with a clinical psychologist to assist him improve his repertoire of coping strategies and tolerance of stress, improve his social problem solving skills, help him to become more assertive, and change those criminogenic attitudes that maintain his offending behaviour.

    -Referral to positive recreational pursuits to provide him with an opportunity to develop positive peer support networks.

    -Referral to a financial counsellor who could help him manage his finances and improve his budgeting skills.

    -Referral to group rehabilitation programmes offered by the Department of Community Corrections (i.e, cognitive skills, anger management, etc).

    -Referral to an employment case manager who can assess his training and employment needs.  Employment will have a stabilising influence upon him.

    -Referral to a psychiatrist to assess his suitability for pharmacotheraphy.

    -He undergo a comprehensive neuropsychological assessment to determine if he has any significant cognitive impairment.

    -Referral to bridging literacy and numeracy programmes.

    -Referral to a sexual assault centre regarding his childhood abuse.

    Correctional Services Report

1. On appeal, counsel submitted that the appellant had responded well to supervision on supervised good behaviour bonds.  A report was received from a correctional services officer who had direct contact with the appellant for some years.  She spoke favourably about the appellant’s prospects for rehabilitation.  She described his positive approach to community service. The report included the following:

   Max Gaston appeared before His Honour Justice Gray on 14/07/04 and at the time I spoke with yourself in relation to Max who has been known to me through my employment with Corrections since 1990.

   …

   Before [his head injury] Max had been a friendly outgoing individual but the difference in his nature after was quite pronounced. Max advised that his head ached constantly and I noted that he had become very quiet and withdrawn. I learnt through consideration that these changes were also apparent to his family.

   …

   Max has been involved with Port August Community Corrections since 1990 in relation to community service on 9 occasions. Two of these were not successful, but since 1994 all community service undertaken has been completed. He has a current order at this time assignment to Robert Havelberg for 80 hours.

   In relation to supervision by a probation and parole officer there was involvement in 1992/93 and more recently 1996/97 when his file was assigned to the writer.

   Both periods of supervision were successfully completed.

   From what I know personally of Max I am able to advise that his presence on the local community service program is always welcome and I would suggest that possibly on this occasion Max would benefit from involvement with a psychologist so that he has the opportunity to explore/address difficulties he experiences that possibly contribute to him coming to the attention of the judiciary again.

   These are matters of considerable weight.

2. The information put before this court discloses a body of information about the appellant’s health relevant to sentencing that was not before the magistrate.  Importantly, the evidence details matters relevant to the appellant’s prospects for rehabilitation.  The evidence should be received.  Although not entirely fresh evidence, it is apparent that counsel appearing for the appellant before the sentencing magistrate was unaware of the appellant’s history of injury.  This information should have been before the sentencing magistrate.

   Indigenous Background

3. It is relevant when sentencing to have regard to the appellant’s indigenous background and in particular the influence that that background and his community have had on his attitude towards alcohol and violence.[11]

   [11] See R v Smith (2003) 86 SASR 132

   Conclusion

4. The assault in the present case involved spitting into the ‘face in close proximity to an eye’ of an arresting police officer.  Although no injury was caused, in his victim impact statement the officer spoke of the disgusting nature of the assault, particularly as it occurred whilst he was performing his duties as a police officer in the public interest.

5. It is settled that on an appeal against sentence the court will only interfere with the sentencing discretion if an error of principle is identified, some relevant material has been overlooked or irrelevant material had regard to.  Sometimes circumstance of error may be inferred from the manifest excessiveness of a penalty.

6. In the circumstances of this case, on the information before the magistrate, the sentence imposed was well within his sentencing discretion.  The appellant had many warnings from the courts about offensive behaviour towards the police and generally in regard to disorderly conduct.  The nature of the assault and the criminal antecedents of the appellant are very relevant matters when considering the appropriateness of the penalty imposed.

7. However, the further evidence before this court relevant to the question of a suspended sentence discloses a compelling basis for the imposition of a suspended sentence of imprisonment.  An explanation has been advanced for the appellant’s conduct.  The circumstances now disclosed are mitigatory.  Most importantly there are significant prospects for the appellant’s rehabilitation.  It is to be noted that the appellant spent nine days in custody before bail was granted pending appeal.

8. The appellant has expressed contrition over the incident.  Although he maintains his denial with respect to intentional spitting at the police officer, he understands that the incident should not have occurred, has caused considerable offence and distress, and that he must take steps to avoid any similar behaviour in the future.

9. In all the circumstances and having particular regard to the appellant’s mental health problems and his prospects for rehabilitation, the custodial sentence imposed by the magistrate should be suspended.  The terms of the bond entered into are follows:

   - That you be of good behaviour, and comply with all the other conditions of this bond.

   - That you be under the supervision of a community corrections officer for a period of 2 years and obey the lawful directions given to you by the community corrections officer to whom you are assigned for the purposes of supervision.

   - That you undertake such courses as may be recommended to you by your Community Corrections Officer, particularly with regard to alcohol and drug abuse, anger management, literacy and numeracy programmes and cognitive therapy.

   - That you abstain from alcohol, unless you have the prior written permission of your Community Corrections Officer.

   - That you shall not, other than in strict accordance with the directions given to you by a legally qualified medical practitioner upon a prescription issued by that doctor, use, possess or administer any narcotic or psychotropic drugs or any drug which cannot be legally obtained without the prescription. Further, that for drugs available without prescription, you shall take only the recommended dosage.

   - That you present yourself for breath testing and urine analysis as and where directed by your Community Corrections Officer and that you do all things and sign all such forms as may be necessary to enable this.

   - That you perform 100 hours of community service within 12 months from the date of this bond, and obey the lawful directions of the community corrections officer to whom you are assigned for the purposes of community service.

   - That you report, within two working days of having signed this bond, at the offices of the Department for Correctional Services at 11 Young Street, PORT AUGUSTA  SA 5700 phone number [phone].

   Having regard to these reasons, the appeal was allowed.