GIBUMA v Police - [2021] SASC 110

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
GIBUMA v POLICE
[2021] SASC 110
Judgment of the Honourable Chief Justice Kourakis (ex tempore)
28 July 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
This is an appeal against sentences imposed in the Magistrates Court of South Australia on convictions following the appellant’s pleas of guilty to a charge of aggravated assault and a charge of contravention of an intervention order.
The Magistrate sentenced the appellant to a total of 13 months and 12 days imprisonment for these two convictions and set a non-parole period of 8 months.
The appellant appeals this sentence on the basis that the Magistrate misunderstood the agreed factual basis of the aggravated assault charge and that the sentences imposed are manifestly excessive.
Held per Kourakis CJ, allowing the appeal and re-sentencing the appellant:
1.The Magistrate misunderstood the agreed factual basis on which the appellant was to be sentenced and this misunderstanding was material.
2.The sentences imposed for each offence individually, and in their totality, are manifestly excessive.
3.The appellant is re-sentenced to 19 weeks imprisonment for the conviction of aggravated assault and 9 weeks for the conviction of contravening an intervention order, total sentence of 28 weeks which is partially suspended onto a Bond.

GIBUMA v POLICE
[2021] SASC 110
Magistrates Appeal: Criminal

KOURAKIS CJ: This is an appeal against sentences imposed in the Magistrates Court on convictions following the appellant's pleas of guilty to a charge of aggravated assault and a charge of contravention of an intervention order.
The Magistrate sentenced the appellant to nine months and 24 days imprisonment on the aggravated assault after reducing a notional sentence of 14 months by 30 percent on account of the appellant's plea of guilty. On the breach of the contravention order the Magistrate imposed a sentence of three months and 18 days after reducing a notional sentence of six months, again for the appellant's plea of guilty. Ms Foundas for the respondent has pointed out that in effect therefore the Magistrate has allowed a reduction of about 43.6 percent, in excess therefore of the maximum allowable reduction of 40 percent. The Magistrate ordered that the sentences be served cumulatively and fixed a non-parole period of eight months with respect to the total of 13 months and 12 days to commence on 28 March 2021, the day on which the appellant was taken into custody on the breach of the intervention order.
The appellant appeals on two grounds. The first is that the Magistrate proceeded under a misapprehension of fact on the offence of aggravated assault. I find that the Magistrate did misunderstand the agreed factual basis on which the appellant was to be sentenced and that his Honour's misapprehension was material. I therefore allow the appeal on that ground.
I also allow the appeal on the ground that the sentences imposed for each offence individually, and in their totality, are manifestly excessive. It will fall therefore for me to re-sentence. My reasons follow.
The offences
On Saturday, 14 March 2020 the appellant was a voluntary patient in the mental health ward of the Queen Elizabeth Hospital. He had been in hospital for about one week. At about 9.20 p.m. a nurse, N, asked him to remove a frightening mask which he had hung on the door of his room. When he refused, N stepped into the room to remove the mask. While N was in the room the appellant attempted to place on her plastic handcuffs which he had purchased from a discount retail store for one dollar. N was able to pull away and she left the room. The team leader of the ward entered the appellant's room and removed the handcuffs.
The incident was not reported to the police on that night. The appellant was allowed to remain in the mental health ward and N continued her duties, including attending to the appellant’s care, in the ordinary way. The appellant remained in the ward on the next day, Sunday, 15 March. Overnight, in the early hours of Monday, 16 March 2020, police officers attended following reports from hospital staff that the appellant was intimidating and threatening others. According to the facts of charge provided to the Magistrate, N disclosed to those police officers the assault which had been committed on her with the use of handcuffs. The appellant was arrested for the assault against N and no other offence.
N told the police that the appellant had grabbed her right arm with his hand and had attempted to place the handcuffs on her wrists but that she had managed to free herself from his grasp. She told the police that the appellant then came out of his room and submitted to some routine medical checks. On his arrest, the appellant claimed that he had hardly touched N. He told the police that he had already spoken to her and had apologised. He reported to police that N had told him off, told him that he should not have done it and not to do it again.
The appellant pleaded guilty to the aggravated assault on 11 December 2020 on a negotiated factual basis. The police prosecutor informed the Court that the appellant had tried to apply the handcuffs but did not take hold or grab the nurse's arms in the course of his attempt. The appellant's counsel told the Magistrate that the appellant's only intention was to play a practical joke. Even though neither the prosecutor nor the appellant's counsel had suggested that the handcuffs were actually placed on N, and neither had said that any injury was caused, the Magistrate described the offence as follows:
…A nurse who was caring for you went into your room to remove a mask. While she was in there you produced some plastic handcuffs and placed the cuffs on her hands. In attempting to pull away from that, she suffered some minor injury. The assault is constituted by placing the plastic handcuffs on her…
(Emphasis added)
That statement is plainly mistaken.
N’s victim impact statement, which was also provided to the Magistrate, does not give N’s account of the assault of which the appellant was convicted, nor does it mention any injury. N’s statement focuses instead on the appellant’s disruptive behaviour generally during his admission, and how it ‘wreaked havoc’ and disrupted others in the ward. N speaks of the injustice in the appellant taking a bed in the mental health ward when others in more need may have been turned away. N attributes the appellant’s behaviour to his ‘dysfunctional alpha male’ personality and his ‘narcissistic’ personality. N’s assessment of the appellant’s behaviour might well be sound but it is not the conduct for which he is to be sentenced.
I am concerned that the agreed factual basis departed substantially from N’s account as recorded in the facts of charge. I can only hope that she was properly consulted before the facts and compromise were negotiated. Speaking generally, the failure to prosecute on the facts alleged may result in sentences which do not properly reflect the culpability and thereby put the community at risk. Ultimately, the Court can only act on the facts as alleged by the prosecution. I wish, however, to emphasise the importance of both the prosecution and defence taking care before putting a negotiated factual basis to a court.
The Magistrate was informed that the appellant had poor mental health. His Honour was given an undated discharge note from the Royal Adelaide Hospital which stated that on 20 November 2020 the appellant was admitted to the Royal Adelaide Hospital on what is described as an intervention which compelled his admission. He was in a closed ward. He was discharged on 11 December 2020 and placed under the care of the Clare Mental Health Service. I assume that was so because he resides in Port Wakefield. Being under the care of a health service based in Clare when he lived in Port Wakefield says something about the tyranny of distance in providing proper mental health care to residents in regional locations. A note dated 6 January 2021 from the Clare Mental Health Service records that the appellant was placed on a ‘Community Treatment Order – Level 1’. That note does not say when he was placed on that treatment order but it must have been before 6 January 2021.
The facts of charge sheet provided to the Court on the breach of the intervention order breach states that the appellant was on medication, which was wrongly named in the report, but which I am told by Mr Marcus, and I accept, was actually the medication Zuclopenthixol. The facts of charge recorded that the dose was being reduced, or the medication withdrawn, at the time of the breach of the intervention order. That is as much as the Magistrate knew of the appellant’s mental health.
Mr Marcus informs me that the drug is a strong antipsychotic which is commonly prescribed for schizophrenia. I accept that also. I am concerned that the Magistrate was given so little detail about the appellant's mental health. I will revert to this issue when I consider the appellant's prior offending history, but for now, I turn to the second of the offences.
The appellant's mother was a protected person under an intervention order served on 6 June 2014. It appears that an interim intervention order, with the appellant's mother as the protected person, was made on 5 October 2012, and was breached just two days later on 7 October 2012. No penalty was imposed for that offence. In September 2013 either the interim order was varied, or the order was confirmed and varied. It was that order which must have been served on 6 June 2014.
On Sunday, 28 March 2021 the appellant contacted his mother by phone. At that time he was living in Port Wakefield. His mother lived in Glanville and had the care of the appellant's son, who was then four years of age. At the time of the phone call the appellant understood that he was to appear in the Adelaide Magistrates Court on 7 April 2021for sentencing on the aggravated assault of N. He is likely to have known that when informed of the negotiation of the guilty plea by his solicitor. A psychological or psychiatric report was to be obtained but ultimately was not provided to the Magistrate on sentencing.
In any event, fearing that he may be sentenced to imprisonment, the appellant asked his mother to drive his son to Port Wakefield so that he could see him before the hearing. The appellant's mother told him that she would think about it. She also said that she might contact the Clare Mental Health Service because she was concerned about his mental health. That appears to have angered the appellant; a reaction which might be expected from a person with limited insight into his serious psychotic illness. The appellant called his mother a ‘fucking dog’ and threatened that if she did call the mental health service he would put a knife through her throat. Little needs to be said about how frightened his mother must have been. She may have been subjected to similar threats in the past even though there is no breach of the intervention order recorded in the appellant's offender history other than the one, two days after the interim order was made. But even if that were so, it would detract little, if at all, from her anxiety.
In any event, in an act indicative of his poor mental health, to put it neutrally, at about 6.00 pm the appellant called an Uber taxi, which drove him from Port Wakefield to Glanville at a cost of $200. Upon arrival at his mother’s premises, the appellant was allowed entry into the house by his son. The appellant refused to leave when asked by his mother. The police were called and attended at about 7.50 p.m. He was arrested and he has been in custody since that time. His mother reported his behaviour to be erratic and she believed that he had been drinking.
Personal circumstances
The appellant was born on 6 July 1991. As I have already observed, the Magistrate was told no more about his health than that he had suffered from poor mental health. The Magistrate was not informed of the diagnosis, the level of his current functioning or his prognosis. Other than that, the Magistrate would have gleaned from the facts of charge that the Clare Mental Health Service were either reducing, or had withdrawn, his medication in the lead-up to the threatening phone call to his mother.
Prior offending
I turn to the appellant's prior offending. The appellant had a history of minor offending as a youth, primarily comprising failing to comply with bail. His first convictions as an adult were minor offences of disorderly behaviour and for breach of the bail on which he was released on those offences. He was imprisoned for five days in November 2010 for breaching a community service order imposed several weeks earlier.
On 9 February 2010, the appellant committed offences of serious criminal trespass on an unoccupied residence, dishonestly take property and aggravated assault. On 1 August 2011, he was sentenced to 14 months imprisonment with a non-parole period of nine months; the sentence was suspended on the appellant entering into a bond. The appellant appeared in the District Court for a breach of that bond on 10 April 2012. The breach was excused but the bond extended by three months.
The appellant committed an offence of carry offensive weapon on 7 January 2013. On 6 December 2013, he was convicted but otherwise dismissed without penalty.
On 31 July 2016, the appellant committed three offences of assault, one of which was an assault causing harm. On 16 December 2016, he was dealt with for one of those, an assault by punching and knocking out a woman; he was imprisoned for six weeks but the sentence was suspended on him entering into a bond for a period of 12 months. On 7 March 2017, he was dealt with for another of the offences, which was the offence of an assault causing harm by throwing a bottle at a woman; he was imprisoned for four months and 27 days but that imprisonment was suspended on him entering into a bond for 18 months. For the third offence on 8 December 2017, a basic assault, his bond was extended by a period of 12 months.
On 29 November 2017, the appellant committed another offence of assault by punching a woman and committed yet another offence in the same way on 2 April 2018. Both of those matters were dealt with in the Port Adelaide Magistrates Court on 24 July 2018. He was imprisoned for 12 months to commence on 10 April 2018.
That series of offences against women, committed within a period of just under two years, is worrying and serious. I am concerned that the underlying mental illness, whatever it might be, may have played a part, and that offending against women in this way might be a feature of the illness. The Magistrate was not able to investigate or consider that because of the paucity of material put before him. I am in no better position now.
Consideration
Be that as it may, it is not possible to stretch what would otherwise be a proportionate sentence for the offences for which he was sentenced in the Magistrates Court, to provide the level of community protection which would be required if it were to be discovered that my fear is soundly based. The sentences must be proportionate to the offences of which he has been convicted. Concerns about personal deterrence and community protection can result in sentences at the higher end of a range for offences of that kind, but the Court cannot go beyond that to impose a sentence of preventative detention. In any event, there is no material that could confirm my concern about the cause of the series of offences against women between 2016 and 2018.
I must impose proportionate sentences for the offences which are the subject of this appeal. Dealing first with the offence of aggravated assault, it is at the very lower end of the scale; there being, on the facts alleged, no actual contact. The assault was constituted by a fear or apprehension. The facts of charge do not describe the degree or extent of N’s fear. N does not speak of it in her victim impact statement.
I also observe that in the context of the assaults which unfortunately mental health workers all too often endure, it was not such as to cause the hospital to discharge the appellant, who was a voluntary patient. Nor did N or the team leader or anyone else consider it serious enough to report on the night.
Nonetheless, it was eventually reported when his behaviour did not improve and he now must be sentenced for that assault. However, I cannot impose a sentence beyond six months as a starting point, even taking into account the full measure of protection that might otherwise be required. Reducing that notional starting point by about 30 percent, I impose a sentence of 19 weeks on his conviction for aggravated assault.
The threat which breached the intervention order was frightening and horrific. However, there is good reason to apprehend that it reflected the appellant’s deteriorating mental health at a time when a reduction in his medication was being trialled. The penalty must reflect the reduced culpability flowing from the appellant’s poor mental health. Again, I cannot commence with a starting point any higher than three months, and I trust that I am not reducing it by any more than 40 percent in imposing a sentence of nine weeks.
The total of both sentences is 28 weeks, or six months and two weeks. They are the sentences I would impose. Concerned, however, to ensure both the proper treatment of the appellant’s underlying mental health condition when he is released, and to maximise the period for which the community would be protected at least by his monitoring by Community Corrections Officers, I will partially suspend that sentence.
I will hear the parties on when the appellant should be released and on the conditions of his bond.