GROGAN v POLICE No. SCGRG-99-6 Judgment No. S57

[1999] SASC 57

[1999] SASC 0057

GROGAN V POLICE

Magistrates Appeal (Ex Tempore)

1      LANDER J:       The appellant was charged with a series of offences, all of which occurred on 20 April 1998.   First, he was charged with failing to give an appropriate traffic signal in turning a motor vehicle to the right.   He was also charged with failing to submit to an alcotest, and refusing to comply with all reasonable directions of a member of the Police Force.  He was charged with assaulting a member of the Police Force and further charged with resisting a member of the Police Force.  He pleaded not guilty to all four charges, but, on 17 December 1998 he was convicted in the Magistrates Court of each of the offences. 

2      In relation to the first matter he was fined $150.  In relation to the second traffic offence, he was fined $1,150 and disqualified from holding or obtaining a motor vehicle licence for two years. 

3      In relation to the third and fourth offences, he was convicted on each and imprisoned on each for a period of one month; the sentences to be concurrent.  He has served one week of the one month imprisonment, but was released on bail on 24 December 1998 pending the hearing of this appeal.  The appeal is against sentence only. 

4      In relation to counts 1 and 2 the ground of appeal is that the penalties imposed and the period of licence disqualification, in respect of the second count, were manifestly excessive.  In relation to counts 3 and 4, it is claimed the period of sentence of imprisonment was manifestly excessive. 

5      In argument, in relation to counts 3 and 4, it was put as an alternative that if the period of imprisonment was appropriate, the sentence of imprisonment should have been suspended. 

6      The appellant's account of the circumstances giving rise to the events of 20 April 1998, were substantially at variance with that of two police officers.  The appellant categorically denied that he failed to indicate his intention to turn right.  He also claimed that he agreed to submit to an alcotest.  Further, he asserted that he did not assault or resist police, but acted only in self defence from an attack launched by a police officer.  His account was supported, in part, by his wife, and also partly by the evidence of two of his children who were called at his trial. 

7      The learned magistrate rejected the appellant's account and also that of his witnesses.  He accepted the evidence of the police officers and concluded that the respondent had made out the charges beyond reasonable doubt. 

8      The police account was that, at about 7.50 p.m., on the day in question, police observed a motor vehicle make a right-hand turn into Abbott Street at Salisbury North  without that vehicle giving any indication of its intention to change direction.  The vehicle was followed and it came to a halt in the driveway of 27 Abbott Street, Salisbury North.  The police stopped their vehicle and approached the appellant who was the driver of the vehicle.  The police officers noted that he was very aggressive and uncooperative.  They could smell liquor on his breath.  Because of the last mentioned matter, the appellant was asked to accompany the police officers to the footpath to submit to an alcotest.  Initially the appellant refused, but then accompanied the police to the footpath.   The police presented an alcotest to the appellant and required him to submit to it.  The appellant replied saying 'Fuck this, I'm not fucking blowing into that.' The appellant then turned and went to quickly walk to the front of the premises.  A police officer ran to the appellant and restrained him.  The appellant then turned and began to punch the police officer with both hands. The appellant was throwing the punches in a windmill type fashion, with his head down, not looking, and his arms rotating in a clockwise direction.  The police officer could feel the punches striking him in the upper body region.  The police officer who was the subject of the assault, was assisted by another police officer.  They both took hold of the appellant and restrained him.  He was then handcuffed and placed in the rear of the police vehicle. 

9      He told the police officers that he behaved in the way that he did because he was concerned that his car was being followed and he was concerned for his children who were in the car.  He also said that he was suffering from depression and things just got to him and he could not be bothered dealing with the police officers. 

10     As I have already said, the police account was accepted by the learned magistrate and convictions followed.  There is no appeal however, against the convictions. 

11     In sentencing the appellant, the learned magistrate said that he took into account all of the matters put on behalf of the appellant.  In his sentencing remarks he referred to the fact that the public expects that its police officers or its Police Force should be able to attend to the community’s safety without police officers being in fear of being assaulted or violently resisted.  He also mentioned that, in the area in which the learned magistrate sits, namely Elizabeth, violent resistance was all too prevalent.  He said:

“Unless the courts enforce the public's legitimate expectations by appropriate punitive and deterrent penalties then the Police Department may have difficulty in recruiting and retaining suitable persons and police officers may become disinclined to perform their duty promptly and impartially and, as a consequence, the public will not receive the degree of care and attention it deserves.”

12     He then referred to the fact that the appellant had been given leniency on a previous occasion for an offence involving violence, but that leniency had not been successful in curbing the appellant's inclinations. 

13     Lastly, he said that the appellant had not pleaded guilty to the charges, but to the contrary, he had attributed impropriety to the police.  The learned magistrate said he was unable to see any contrition on the part of the appellant but:

“[R]ather a devious attempt to extricate yourself by having others lie on your behalf including children.”

14     The learned magistrate, in concluding his sentencing remarks, said that he believed that an immediate term of imprisonment was the only appropriate penalty and that a suspended sentence was not adequate punishment and insufficient deterrence to others similarly inclined to offend. 

15     The appellant is aged 40.  He was born in Victoria.  He and his brothers and sisters were abandoned by their parents when he was about 3 or 4 years of age.  He spent a number of years in an orphanage until he was placed with a family with whom he still corresponds.  He was educated in Melbourne and completed year 8. 

16     He has been in a defacto relationship with his partner for about 13 years.  Between them they care for four children; being three girls from a former relationship between his partner and another man, and one girl as a result of their union.  He has not worked for many years.   He is presently on sickness benefits as a result of a serious car accident in which he was involved in 1991.  His partner does not work.  Their income is solely from social services and totals $415 per week.  Out of that sum they have commitments, including rent of $136 per week.  Therefore he must support his partner and the four children on about $290 per week. 

17     The appellant has previous convictions.  In 1989 he was convicted of driving with excess blood alcohol, no licence and failure to undertake an alcotest.  He was convicted of those offences and fined and his licence was disqualified for seven months.  In 1992, he was convicted of assault and was placed on a bond to be of good behaviour for a period of 12 months.  In 1994 he was convicted of failing to give his name and address. 

18     With respect to the traffic offences, I can deal with those quite shortly.  The maximum penalty for the conviction in relation to the first offence is $1,000.  A fine of $150 cannot be said to be manifestly excessive. 

19 The minimum penalty for the failing to submit to an alcotest is $700 and the maximum $1,200. Thus, the penalty imposed was only $50 short of the maximum. The learned magistrate was, in fixing a penalty, entitled to take into account the fact that the appellant had a previous offence of the same kind in 1989. Whilst that offence did not make this offence a subsequent offence, within the meaning of the Road Traffic Act, it was still a relevant matter to be taken into account in determining the appropriate monetary penalty. However, in my opinion, a penalty of $1,150, is too great a penalty having regard to the appellant's financial situation. The penalty is unlikely to be able to be met by the appellant. It was not possible for the learned magistrate to reduce the penalty below $700, which is the minimum fixed by the Road Traffic Act (see s.20(b) Criminal Law Sentencing Act). However, having regard to the appellant's financial circumstances, and notwithstanding the previous offence in 1989, it would have been appropriate to fix a penalty nearer the minimum, rather than the maximum.

20     In my opinion, the penalty of $1,150 was manifestly excessive and I will set aside that penalty and substitute a penalty of $800 in relation to that offence.  I would allow the appellant 10 months in which to pay the monetary penalties.  That was the time allowed by the learned magistrate. 

21     In relation to the licence disqualification, the minimum disqualification for first offence is 12 months.   The maximum disqualification for a subsequent offence is three years.  Whilst, as I say, this offence is not a subsequent offence, because the previous offence occurred outside the time within which previous offences are prescribed, that previous offence was still relevant in the determination of this penalty.  In my opinion, a disqualification for a period of two years, having regard to that previous offence, and having regard to the antecedents of the appellant, and the fact that the appellant's need for a licence is for a matter of convenience only, was not manifestly excessive. 

22     In so far as the appeal complains about the period of disqualification, the appeal should be dismissed. 

23     The gravamen of the appellant's appeal, of course, relates to the order for imprisonment in relation to the third and fourth offences.  It was faintly suggested on the appeal that the appellant could not be convicted of assaulting a member of the police force and resisting arrest.  If there was only one episode relating to one police officer that might be right.  But that is not the circumstances of these offences.  In any event, the suggestion that the conviction of resisting arrest could not stand was not pursued. 

24     The maximum penalty for assaulting a police officer is two years.  The reason why parliament has set a penalty of that kind is clear enough.  Parliament recognises that the Police Force and its officers require protection in the execution of their duty, and the courts have also recognised that need in a number of decisions. 

25     In O'Connor v Daire (1984) 114 LSJS 386 at 390 Johnston J said:

“In the first place, offences of this sort are often committed in the street, at or in the vicinity of hotels or in places where a considerable number of people are gathered together; and there is a danger that others, particularly if affected by liquor, will be drawn into violence against police; secondly, the offence is not infrequently committed where those inclined to dispute the lawful authority of the police officers outnumber the latter; thirdly, such assaults are not infrequently more protracted and more vicious than this one sometimes involving head butting, kicking, etc.” 

26     Whilst this offence did not occur in the location referred to by Johnson J, the offence was no less serious.   This was an offence which involved the appellant striking a police officer on a number of occasions.  No doubt alcohol played some part for why the appellant did what he did, but that is not to the point; that merely explains what he did, but cannot excuse it. 

27     Because the maximum penalty is two years, on the face of it, a period of imprisonment of one month is not manifestly excessive.  In my opinion, having regard to the circumstances and the seriousness of this offence, the offender's previous conviction for assault, the absence of contrition and remorse, and the need to have regard to the aspects of both general and personal deterrence, a period of imprisonment for one month was not manifestly excessive. 

28     The question of suspension of the period of imprisonment is more difficult.  The appellant was entitled to have the magistrate consider the question of suspending the period of imprisonment if the learned magistrate was satisfied that good reason existed for the suspension of the period of imprisonment.  The learned magistrate implicitly concluded that no good reason had been made out and that it would, therefore, be inappropriate to suspend the period of imprisonment. 

29     The question on appeal is not what I would have done had the matter come before me at first instance, but whether in the circumstances, it could be said that the exercise of the sentencing discretion on the part of the magistrate miscarried. 

30     In my opinion it cannot be said that the circumstances surrounding the offence or the antecedents of the appellant, or, indeed, any of the matters personal to the appellant required the learned magistrate to find that good reason exists for the suspension of the period of imprisonment. 

31     It was put to the learned magistrate, and put to me, that there was a matter personal to the appellant which was relevant in relation to the question of suspension.  The appellant explained his behaviour to the police by reason of suffering from depression.  He told them that, at the time of his arrest, that was why he had behaved in the way that he had. 

32     Evidence was given in the trial, by his general practitioner, Dr Groves, that prior to this offence he had treated the appellant for depression and prescribed him medication.  That evidence was not before me on appeal, but Mr O'Reilly, who appeared before the learned magistrate, drew that matter to my attention.  There was no objection from counsel for the respondent, Ms Bradsen, to my being told that.  I was also told that Dr Groves said that he was not able to say whether the appellant was suffering from depression at the time of the incident. 

33     Whilst the matter of depression was relevant, the evidence, in my opinion, did not require the magistrate to find that that would be a good reason for suspending the sentence of imprisonment. 

34     There is one further matter which I think needs to be addressed.  As I have already indicated, the learned magistrate convicted the appellant in relation to both assaulting and resisting police and imposed a sentence of imprisonment in respect of both convictions; the sentences to be served concurrently. 

35     Whilst I think the circumstances did disclose separate offences of assault and resist arrest, the fact of the matter is both offences arose out of the one incident.  I think it was appropriate to convict him in relation to both, but with respect to the learned Magistrate, I think it was inappropriate to sentence him to a further term of imprisonment, albeit concurrent, in respect of the resist arrest.  In doing so, in my opinion, that second sentence was manifestly excessive. 

36     Therefore, in my opinion, it would be appropriate to set aside the sentence of imprisonment in relation to the conviction for resisting arrest.  Unfortunately for the appellant that has no practical effect in so far as the appellant is concerned. 

37     Therefore, in relation to this appeal, I would allow the appeal in respect of the pecuniary penalty imposed for failing to submit to an alcotest, by setting aside the pecuniary penalty imposed by the learned magistrate of $1,150 and substituting a penalty of $800.  I would also allow the appeal by setting aside the sentence of imprisonment in relation to the conviction for resisting arrest and simply enter a conviction in respect of that offence, without further penalty. 

38     In so far as the appeal complains of any other aspect of the sentence imposed by the learned magistrate, the appeal, in my opinion, should be dismissed.  I so order. 

39     I am not sure where that leaves the parties in relation to any application for costs. 

MR O'REILLY:  If it's any help, the appellant does not seek costs. 

HIS HONOUR:  I think it would be appropriate to make no order. 

MS BRADSEN:                   No order. 

HIS HONOUR:  There will be no order as to costs.