GRINSTEAD v Police - [2004] SASC 246

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GRINSTEAD v POLICE
Judgment of The Honourable Justice Anderson
20 August 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS
Appellant pleaded guilty to three offences: theft, providing false name and address and assaulting a police officer - convicted on all three offences - Magistrate imposed sentence of two months imprisonment for the assault offence - appellant already spent three months in custody - considered sufficient penalty for first two offences - appeal on grounds that sentence for assaulting police officer manifestly excessive - failure to consider appellant's personal circumstances, failure to consider other sentences - whether sentence was adequately reduced for guilty plea - whether Magistrate considered time already spent on remand - whether sentence should have been suspended - whether grounds for interfering with Magistrate's discretion - whether Magistrate provided sufficient reasons in giving sentence - held: appeal dismissed on all grounds.
Criminal Law Consolidation Act 1935 (SA) s134(1); Summary Offences Act 1953 (SA) s6(1), s74A(3)(b); Criminal Law (Sentencing) Act 1988 (SA) s10, s11, s31(2), s38, referred to.
Heatlie v SA Police (1993) 172 LSJS 94; Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; Bartusevics v Fisher (1974) 8 SASR 601n, applied.
House v The King (1936) 55 CLR 499, discussed.
R v O'Keefe [1969] 2 QB 29; Wood v Samuels (1974) 8 SASR 465; Birch v Fitzgerald (1975) 11 SASR 114; Hull v Nuske (1974) 8 SASR 587, considered.

GRINSTEAD v POLICE
[2004] SASC 246
Magistrates Appeal: Criminal

ANDERSON J: In this matter the appellant appeals against one particular aspect of the sentence imposed by a Magistrate after the appellant pleaded guilty to three counts for offences committed on 27 March 2004 whilst he was on parole.
Those counts were initially related to the theft of property, dishonestly and without the owner’s consent, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA), and also the failure to state his full name and address, and having been required by a police officer to state his name and address, having stated a name and address that was false, contrary to s 74A(3)(b) of the Summary Offences Act 1953 (SA).
Following his apprehension in relation to the two matters above, the appellant was taken to the city watch house where he assaulted a member of the police force in the execution of his duty contrary to s 6(1) of the Summary Offences Act. The circumstances were, that in the process of being transferred in the watch house, the appellant spat in the face of a police officer who was naturally concerned because some of the appellant’s saliva may have entered his eye. The police officer knew that the appellant was hepatitis C positive.
Before being sentenced by the Magistrate on 23 June 2004, the appellant had been in custody for approximately three months. When he appeared before the magistrate he entered pleas of guilty to both the count dealing with theft and the count dealing with the failure to state his name. He also pleaded guilty to assaulting the police officer.
He was convicted by the Magistrate who considered that the time that the appellant had already spent in custody was an appropriate penalty for both the count of theft and the count of false name and address.
In relation to the matter involving the assault on the police officer, the Magistrate sentenced the appellant to two months imprisonment.
The sentence of two months imprisonment was made cumulative upon the unexpired balance of the appellant’s parole which was approximately six months.
S 31(2) of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”) provides that where a sentence of imprisonment is imposed for an offence committed by a defendant during a period of release on parole, the sentence will be cumulative upon the sentence, or sentences, in respect of which the defendant was on parole. The exception to this is where one of the sentences to which the defendant is subject to is life imprisonment.
The appellant appeals to this court in relation to the sentence of two months imposed for the assault on seven grounds in his amended grounds of appeal, namely:
1. That the sentence was manifestly excessive.
2.That the Magistrate failed to give sufficient reasons for penalty and indicated no reduction in penalty for guilty pleas.
3.That the Magistrate erred by not indicating whether he gave the appellant any credit for the time served in remand in respect of the offence of assaulting police.
4.That the Magistrate erred by not excluding all other possible sentences prior to considering the sentence of imprisonment.
5.That the Magistrate erred by not considering whether there were any good grounds to suspend the period of imprisonment.
6.That the Magistrate erred in that he did not give sufficient weight to the appellant’s personal circumstances, and
7.That the Magistrate erred by not giving detailed reasons for the sentence imposed on the appellant.
The Magistrate’s reasons are very brief. What does appear from the reasons is that the Magistrate clearly took into account the appellant’s personal circumstances contrary to the suggestion in ground six above. He said [at 2]:
“He is a young man without, as far as I am aware, convictions for offences of violence. He had an appalling life as a child. His parents were worse than useless and he went as a child from circumstances that were dreadful to circumstances that were even worse. He has never known the comfort of consistent family life and support”.
I think the Magistrate clearly gave sufficient weight to the appellant’s personal circumstances.
The Magistrate also gives the appellant credit for his plea of guilty but does not say specifically to what extent. However, it is apparent from reading the whole of the sentencing remarks of the Magistrate that he appears to be sympathetic to the appellant to some extent and it would appear likely that he has certainly taken the guilty plea into account by merely mentioning it in conjunction with the circumstances of the offence.
In relation to ground three, relating to the time spent in custody, clearly the Magistrate had in mind the actual time that was spent in custody because he referred to it in his finding that it was sufficient penalty for the first two counts. It is in my view highly unlikely that he would not have considered it in relation to the count of assaulting police.
Therefore I dismiss grounds two, three and six for the reasons given.
The other grounds of appeal really relate to the Magistrate’s attitude to the seriousness of the offence of assaulting a police officer. Clearly the Magistrate thought it serious. He said [at 7]:
“That police officer was acting as a cell guard. He was doing his duty on behalf of the community. Sadly, police officers must expect, as they discharge their duties, that they will face anger, verbal abuse and sometimes violence. They should not have to expect that as they do their duty on behalf of the community they will be spat upon. That behaviour is inexcusable. “
The Magistrate referred to the maximum penalty for assaulting a police officer which is now $10,000 or imprisonment for two years. The Magistrate said [at 6]:
“That clearly shows that the Parliament expects that the courts will impose condign penalties in appropriate cases so as to give police some protection when they are, on behalf of the community, dealing with those who are aggressive, disturbed, affected by drugs and alcohol and those whose self-restraint is overcome by their anger and aggression.”
I mention these matters to show how much importance the Magistrate placed on the circumstances of the offence.
There has been a consistent approach of this court in dealing with assaults on police officers in the execution of their duty. Mullighan J in Heatlie v SA Police (1993) 172 LSJS 94 at 95 sets out some of the previous observations and comments from earlier decisions but makes the point that it would be wrong to treat those observations as a statement of sentencing principle that first offenders who assault police officers in the execution of their duty must expect immediate imprisonment regardless of the circumstances. The correct approach to sentencing for the offences of assault police and resist arrest is the same for any other offence. Mullighan J also said (at 95):
“In accordance with the well established principle, a sentence of imprisonment is only imposed when all other sentencing options have been eliminated and upon being imposed, considerations must be given as to whether it should be suspended in the circumstances of the particular case”.
He cites R v O’Keefe [1969] 2 QB 29 per Lord Parker LCJ at 32 and Wood v Samuels (1974) 8 SASR 465 at 468 and points out that the principle is now contained within s.11 of the Sentencing Act.
This, of course, is not a case of a first offender. The appellant’s history is dealt with later.
In my view this appeal comes down to whether there were any good grounds to suspend the period of imprisonment because, it is my opinion that two months imprisonment was within the Magistrate’s sentencing discretion in imposing a period of imprisonment. It is not possible to say that the period of imprisonment was excessive having regard to the circumstances of the offence.
It was submitted on behalf of the appellant that the Magistrate was wrong in that he did not exclude all other options before considering imprisonment. There is nothing in his sentencing remarks to indicate why the other sentencing options would not be appropriate. In particular, the Magistrate made no mention of whether he gave any consideration to suspending the sentence of imprisonment and did not provide anything in his reasons as to why a suspended sentence was not appropriate. What the Magistrate, however, does say is that he has considered all matters relevant to this matter, including s 10 and s 11 of The Sentencing Act and the possible application of s 38, [at 3]. He obviously did not consider that it was a case for suspension, when he considered the options under s 38.
It is necessary to review, therefore, the competing factors in considering whether the sentence should have been suspended.
The appellant points out that the police officer incurred no injury, that the prosecution alleged that the appellant had no prior history for offences of violence, the appellant was intoxicated at the time and behaved in a manner out of character for him, that he cooperated with the police after he had had the opportunity of sobering up and that he had, of course, been in custody for three months.
As against this, the respondent points to the seriousness of assaulting a police officer, the fact that the police officer was concerned for his health, the maximum penalty prescribed for the offence, the fact that the commission of the offences by the appellant demonstrates a continuing attitude of disobedience, the fact that leniency had been extended to the appellant in the past and that the appellant’s history showed a persistent disregard for the law because it was the appellant’s second time before the court in less than twelve months and that he had only been on parole for about two months at the time of the offences, notions of personal and general deterrence, the fact that there were no exceptional circumstances of mitigation, the time spent in custody and finally the need to protect the community from the appellant’s criminal acts.
There are two additional factors which, in my view, are important and which were conveyed to me by counsel during argument. The first, which is not mentioned by the Magistrate, is the fact that the appellant was hepatitis C positive and that the assaulted police officer was aware of this at the time of the assault. The other matter about which the Magistrate was incorrectly informed, was that the appellant did not have previous convictions for violence. There was a previous incident involving two separate charges of carrying an offensive weapon.
The assaulted police officer was aware that the appellant had hepatitis C. Although he may not have realised it, hepatitis C was unlikely to be transmitted by the appellant spitting. Nevertheless, it necessitated the police officer having to go to hospital for a blood test and it no doubt was of some concern to him.
Clearly the Magistrate has a wide discretion in sentencing – House v The King (1936) 55 CLR 499 particularly at 504 - 505. The High Court has commented on this in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584. See the judgment of Gaudron, Gummow and Hayne JJ and in particular where it is stated [at 58]:
“…appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that would have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”
In my view the Magistrate made no error of fact or law nor failed to take into account any material considerations, nor did he take into account any irrelevant considerations. Having regard to all of the circumstances of the offence as set out earlier, it is my view that a period of imprisonment was justified for this serious offence. It is not possible to say that the period imposed, namely, two months was unreasonable or manifestly excessive in all the circumstances. In my view it came well within the sentencing discretion of the Magistrate – see Birch v Fitzgerald (1975) 11 SASR 114 at 117.
The Magistrate said that he took account of the provisions of s 38 of the Sentencing Act and there is no reason to suggest that he did not. He clearly decided it was not a case in which to suspend the sentence. I have considered submissions made in this regard but it is my view that it would not be appropriate to interfere in the Magistrate’s discretion in this area. I can also see good reason why the Magistrate refused to suspend the sentence.
I believe the influential factors which would have exercised the Magistrate’s mind in considering suspension involved the appellant’s continuing disobedience of the law, the fact that he had been extended leniency in the past and the fact that he had been on parole for only two months at the time of the offences.
In all the circumstances and for the reasons stated I would dismiss the appeal under grounds one, four and five.
That leaves ground seven. In my view, although possibly as brief as any reasons could be, the Magistrate in those reasons gives sufficient clues as to his process of reasoning in the sentencing process.
Written reasons do not have to include every aspect of every matter which the Magistrate considered.
In Hull v Nuske (1974) 8 SASR 587 Walters J at 598, refers to a decision of Bright J in Bartusevics v Fisher(1974) 8 SASR 601n. It is included as a note at the end of the judgment of Walters J as follows (at 602):
“It has been repeatedly held that Magistrates do not have to recite in their reasons every matter which they have considered, and an appellate court is entitled when considering the evidence and the reasons given to assume that the Magistrate has considered all matters which are necessarily implicit in any conclusions which he has reached.”
I would therefore also dismiss ground seven. It follows therefore that the appeal is dismissed.