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

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gaston v Police

Details

AGLC: Gaston v Police [2004] SASC 222
Case: [2004] SASC 222
Decision Date: 29 July 2004

CaseChat Overview and Summary

The appellant in this case was convicted of assaulting a police officer by spitting in the officer's face, leading to a sentence of two months imprisonment. The appellant appealed the severity of the sentence, arguing it should have been suspended. The appeal was heard in the court of appeal. The legal issues involved assessing whether the original sentence was manifestly excessive and if there were grounds to suspend the sentence based on new evidence regarding the appellant's personal circumstances. The court considered the nature of the offence, the appellant's criminal history, and the circumstances surrounding the incident. It was noted that the appellant had a history of offences against police and had received multiple warnings. However, the court also took into account new evidence about the appellant's health and background, which highlighted significant prospects for rehabilitation. The court concluded that the original sentence, while within the magistrate's discretion, should be set aside in favour of a suspended sentence due to the appellant's prospects for rehabilitation and the mitigating factors presented in the new evidence. The appeal was allowed, and the sentence was suspended with conditions.

The court outlined the terms of the suspended sentence, which included supervision by a community corrections officer, participation in rehabilitation programs, abstaining from alcohol and drugs, performing community service, and undergoing regular testing. The decision to suspend the sentence was based on the appellant's demonstrated willingness to change, his history of rehabilitation efforts, and the significant prospects for his rehabilitation. The court emphasised the importance of considering the appellant's personal circumstances and the potential for rehabilitation in sentencing decisions.

Orders

Orders of the court

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Background

Background to the litigation

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 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 132Conclusion 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. 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. 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. 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. 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. 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 (08) 8648 5350.Having regard to these reasons, the appeal was allowed.

Evidence

Evidence Before The Court

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 EvidencePsychological Report 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. 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. 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. 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. 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. 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

Decision

Reasons for decision

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 132Conclusion 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. 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. 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. 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. 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. 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 (08) 8648 5350.Having regard to these reasons, the appeal was allowed.

Ratio Decidendi

Legal Principle Established

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