Grzybek v Police

[2008] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

GRZYBEK v POLICE

[2008] SASC 161

Judgment of The Honourable Justice White

19 June 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS

Appeal against sentence imposed by a magistrate - appellant sentenced to single total term of imprisonment of eight months in respect of the offences of being unlawfully on premises, assault, behaving in a disorderly manner, and resisting police - term of imprisonment suspended upon entry into bond to be of good behaviour for three years - whether sentence manifestly excessive - whether sentencing remarks adequate - whether circumstances personal to the appellant properly taken into account - appellant an alcoholic and his offences attributable to intoxication - relevance of alcoholism and intoxication to sentencing - whether seriousness of offences required the imposition of a term of imprisonment.

Held:  appeal allowed - sentencing remarks so inadequate that this Court should re-sentence - sentence of imprisonment set aside- appellant convicted of all offences and required to perform 72 hours of community service within a period of six months.

Summary Offences Act 1953 s 6, s 7, s 17; Criminal Law Consolidation Act 1935 s 20; Criminal Law (Sentencing) Act 1988 s 9, s 11, s 18A, s 39; Summary procedure Act 1915 s 99, s 99D, referred to.
R v Waugh (2005) 93 SASR 274; R v Place (2002) 81 SASR 395, discussed.
Wood v Samuels (1974) 8 SASR 465; Meeuwsen v Police [2003] SASC 306; S, JC v Police [2007] SASC 27; R v Major (1998) 70 SASR 488; R v Slater [2005] SASC 423; R v Symonds [1999] SASC 217; Germain v Police [2006] SASC 340; R v Wiskich (2007) 207 LSJS 431; R v Wall (2000) 209 LSJS 135; R v Harris and Simmonds (1992) 59 SASR 300; R v Powell (2001) 81 SASR 9; Papastamitis v Police [2003] SASC 102; R v Proom (2003) 85 SASR 120; Hull v Western Australia (2005) 156 A Crim R 414, considered.

GRZYBEK v POLICE
[2008] SASC 161

Magistrates Appeal

1. WHITE J:             The appellant appeals against a sentence imposed by a magistrate.

2. The appellant pleaded guilty to four offences all of which were committed on 12 October 2007.  They were being unlawfully on premises, contrary to s 17(1) of the Summary Offences Act 1953 (SOA);[1] assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935;[2] behaving in a disorderly manner in a public place, contrary to s 7(1)(a) of the SOA;,[3] and resisting police officers in the execution of their duty, contrary to s 6(2) of the SOA.[4]

   [1]    Maximum penalty imprisonment for 2 years.

   [2]    Maximum penalty imprisonment for 2 years.

   [3]    Maximum penalty $1,250 or imprisonment for 3 months.

   [4]    Maximum penalty $2,500 or imprisonment for 6 months.

3. Acting under s 18A of the CLSA, the magistrate imposed a single sentence of eight months imprisonment.  That sentence was suspended upon the appellant entering into a bond in the sum of $50 to be of good behaviour for a period of three years.  The magistrate also ordered the forfeiture of the sum of $200 which had secured a bond into which the appellant had entered on 23 October 2006.

4. The magistrate made orders under s 99 of the Summary Procedure Act 1915 (SPA) restraining the appellant for a period of three years from communicating with the two complainants and from approaching or remaining within 100m of their respective places of residence and employment.  Finally, the magistrate made orders under s 99D of the SPA precluding the appellant for an indefinite period from possessing or obtaining a firearm or a firearm licence. 

   Circumstances of the Offending

5. These offences involved two different complainants.  The appellant had previously had a boyfriend-girlfriend relationship with the first complainant.

6. On 12 October 2007, both complainants were at the premises of the first complainant socialising with another person.  The appellant arrived unannounced at the premises.  He was intoxicated and angry.  The first complainant asked him to leave.  He complied with that request but returned shortly afterwards, entering the backyard of the premises and later the house.  This conduct comprised the offence of being unlawfully on premises.  The appellant rushed at the second complainant, threatening him with violence.  The second complainant sought to evade him and was chased around the yard and through the house.  This conduct constituted the assault.  There was no physical assault of the second complainant and he did not suffer any physical injury. 

7. The police attended.  When they attempted to arrest the appellant he ran from them, yelling obscenities in the street.  That conduct constituted the offence of disorderly behaviour.  When the police tackled him, the appellant thrashed around making the process of arrest difficult.  This conduct constituted the offence of resisting the police in the execution of their duties.

8. It was common ground that the offences were committed at a time when the appellant was inebriated. 

9. The appellant’s conduct constituted a breach of a good behaviour bond into which he had entered on 23 January 2007.  The appellant had then been charged with the offence of disorderly behaviour and loitering, but had been discharged under s 39 of the Criminal Law (Sentencing) Act 1988 (CLSA) upon entering into a bond to be of good behaviour for a period of 12 months.  As I understand it, the conduct comprising those offences was committed outside former premises of the first complainant.

10. The magistrate had a Victim Impact Statement from the second complainant.  This evidenced considerable insight by the second complainant into the appellant’s behaviour but also revealed the menace and fright which he had experienced.  The second complainant continues to be apprehensive about the appellant.

    Appellant’s Personal Circumstances

11. The appellant was born in April 1978.  He emigrated to Australia at the age of 11 and has had some tertiary education in computer engineering.  He is presently completing an apprenticeship as an electrician.  The appellant suffers from alcoholism and has been a binge drinker.  In the past he has frequently drunk to the point of blacking out and being unable subsequently to recall his behaviour.  At the time of sentencing by the magistrate (11 April 2008) it seems that the appellant had been abstinent from alcohol for some time and was a regular attendee at meetings of Alcoholics Anonymous.  The appellant understands the effect of alcohol on him and intends to abstain from alcohol in the future.

12. The appellant has been treated in the past for depression.  This appears to be associated with his alcohol consumption. 

13. Apart from the prior offences of disorderly behaviour and loitering to which reference has already been made, the appellant did not have any prior convictions for comparable offences.  He did appear in the Magistrates Court on a charge of damaging property but was discharged without conviction.  He does have a conviction for a drink driving offence.

14. The appellant had been drinking alcohol heavily during the three days prior to 12 October 2007.  He had been ruminating on what he believed to be the first complainant’s ambivalent attitude towards him and on a debt which he believed she owed to him.  It was in his state of inebriation and rumination that he went to the first complainant’s premises.  It was common ground that his intoxication was a substantial cause of his behaviour at those premises.

    Submissions on Appeal

15. The appellant’s principal complaint is that the sentence of eight months imprisonment is manifestly excessive.  He submits that a sentence of imprisonment was not appropriate at all.  In addition, the appellant submits that the sentencing process miscarried in that the magistrate made inappropriate use of s 18A of the CLSA and failed to give adequate reasons for his sentence.  He did not explain how the sentence of eight months imprisonment was reached and did not indicate what, if any, reduction in penalty was made on account of the appellant’s plea of guilty.

    The Magistrate’s Sentencing Remarks

16. The sentencing remarks are very brief.  They comprise almost entirely an admonition of, and exhortation to, the appellant about alcohol consumption.  It can be inferred that the magistrate accepted that the offences were committed while the appellant was inebriated and that the appellant had recognised his difficulties with alcohol.  After his remarks about alcohol consumption, the magistrate proceeded immediately to impose the single sentence of imprisonment, using s 18A of the CLSA.

17. In my opinion, the magistrate’s sentencing remarks were inadequate.  They did not discharge the obligation imposed on the magistrate by s 9(1)(a) of the CLSA to state his reasons for his sentence.  The appellant’s counsel had submitted that a sentence other than imprisonment was appropriate.  This was the major feature of her submissions.  It seems that the magistrate must have entertained this as a serious possibility, as he referred the appellant for an assessment of his suitability for participation in a diversion program, namely, the Court Assessment Referral Drug Scheme (CARDS) Program.  Had the appellant been accepted into that program it seems that sentencing would have been deferred.  Had he completed the program successfully it seems unlikely that a sentence of imprisonment would have been imposed.  The magistrate must have had this in mind when making the referral.  As the appellant did not use illicit drugs, the CARDS Program was considered to be inappropriate for him.  He had therefore to be sentenced in a conventional way.  But the very fact that the magistrate referred the appellant for assessment by the CARDS Program seems to indicate that the magistrate considered at the time of referral that imprisonment may not be appropriate.  This circumstance makes the absence of any explanation at all for the imposition of a sentence of imprisonment quite striking.

18. It is, in any event, a significant matter to impose a sentence of eight months imprisonment.  A sentence of that kind should not be imposed without adequate reasons.  The circumstances of the appellant’s offending did potentially bring him within s 11 of the CLSA so that a sentence of imprisonment was an available sentencing option, but that was not inevitable.  Generally speaking, a sentence of imprisonment should be imposed only after all other options have been excluded as being appropriate.[5]  These matters, and the specific submission of the appellant’s counsel, meant that the magistrate should have provided reasons for imposing the sentence of imprisonment in this case.  As has been said before, it is appropriate that sentencing remarks address the principal matters which have been put in mitigation. [6] 

    [5]    CLSA s 11; Wood v Samuels (1974) 8 SASR 465 at 468; Meeuwsen v Police [2003] SASC 306 at [38]; Hull v Western Australia [2005] WASCA 194 at [23]; (2005) 156 A Crim R 414 at 420.

    [6]    S, JC v Police [2007] SASC 27 at [58]-[59].

19. There are other respects in which the magistrate’s sentencing remarks are inadequate.  They do not provide any explanation at all as to how the single sentence of eight months imprisonment was reached.  When s 18A is invoked the general position is that the judge or magistrate must first consider the sentence which would have been imposed had separate sentences been imposed in respect of each offence.[7]  Such an approach is not required in all cases, particularly in those cases in which aggregation of individual sentences would produce a starting point to which the totality principle would obviously have to be applied.[8]  But when a judge or magistrate does go directly to a single sentence some explanation should be given as to how that single sentence is derived.[9]  In R v Waugh the Court said:

    Whichever approach is adopted, it is necessary for the sentencing judge to provide an adequate explanation for the sentence imposed.  Such an explanation is intrinsic in the approach identified in R v Major.  That is one of the advantages of that approach.  When a judge goes directly to a single sentence, some explanation of how that single sentence is derived is still necessary.  That might be given, for example, by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, and by identifying whether the judge considers that they should be served cumulatively or concurrently.  Alternatively, the explanation may be given by stating a sufficient number of individual sentences so as to indicate that the judge regards any further identification of individual sentences unnecessary.  This may be because the imposition of such sentences would be crushing or might lead to a sentence which did not reflect the overall seriousness of the criminality involved.[10] (Citations omitted)

    [7]    R v Major (1998) 70 SASR 488 at 490; R v Slater [2005] SASC 423.

    [8]    R v Symonds [1999] SASC 217 at [22].

    [9]    R v Waugh [2005] SASC 470 at [43] ; (2005) 93 SASR 274 at 284; Germain v Police [2006] SASC 340 at [25].

    [10]   R v Waugh [2005] SASC 470 at [43]; (2005) 93 SASR 274 at 284.

20. The magistrate’s sentencing remarks are inadequate for the further reason that they do not disclose what, if any, reduction was made on account of the appellant’s pleas of guilty.  This Court has emphasised repeatedly the importance of pleas of guilty in the sentencing process.[11]  In R v Place[12] the Court of Criminal Appeal endorsed the earlier statement by King CJ about the importance of sentencing courts stating the reduction allowed for a plea of guilty in the following terms:

    This Court of Criminal Appeal has stressed the importance of the discount for a plea of guilty in the administration of justice.  It is intended to encourage guilty persons to admit their guilt, instead of putting the State to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal lists.  This is an important public policy consideration, and judges are to be encouraged to foster an awareness amongst people charged with criminal offences, and those who advise them, of the advantage to be gained by a guilty person by acknowledging his guilt at the first reasonable opportunity.

    General awareness of the advantage to be gained by a plea of guilty would be contributed to by judges indicating clearly, in their sentencing remarks, not only that they have taken the plea of guilty into account, but also the extent to which they have taken it into account.

    I think that this Court should actively encourage sentencing judges to take that course.

    It does not follow, of course, that merely because the learned judge did not indicate the extent to which he took the plea of guilty into account, that he did not give it appropriate weight.[13]

    See also R v Harris and Simmonds;[14] R v Powell;[15] and Papastamitis v Police.[16]

    [11]   R v Place [2002] SASC 101 at [44]-[46]; (2002) 81 SASR 395 at 412-13; R v Wiskich [2000] SASC 64; (2007) 207 LSJS 431; R v Wall [2000] SASC 117; (2000) 209 LSJS 135.

    [12] [2002] SASC 101; (2002) 81 SASR 395.

    [13] Ibid at [44], 412-13.

    [14] [1992] SASC 3624; (1992) 59 SASR 300.

    [15] [2001] SASC 450; (2001) 81 SASR 9.

    [16] [2003] SASC 102.

21. Of course account must be taken of the circumstances in which magistrates are required to sentence.  Those circumstances do not permit full sentencing remarks of the kind given in the Supreme and District Courts.  Magistrates are not expected to give reasons of that kind.  It is to be expected that often the remarks will be short.  But particularly when a sentence of imprisonment is imposed it is to be expected that the remarks will indicate to the defendant why the magistrate considered such a sentence to be appropriate; when sentencing for multiple offences how the single sentence was derived; how account was taken of the principal matters put in mitigation; and what account was taken of the defendant’s guilty pleas.  The remarks must be sufficient to enable this Court to perform its appellate function when reviewing sentence.  Much will depend upon the circumstances of each case.  In the ordinary case, a magistrate will usually be able to give adequate reasons for sentence in a quite short and succinct manner.

22. In my opinion, the remarks are so inadequate in this case that this Court should intervene and sentence afresh.  The imposition of a sentence of imprisonment of eight months requires more by way of reasons than an admonition and exhortation about alcohol consumption.

    Considerations Relevant to Pre-Sentence

23. I agree with counsel for the respondent that there are aggravating features of the appellant’s offending.  The offences were committed while he was subject to a good behaviour bond for offences of disorderly behaviour and loitering.  Those offences were committed in front of the former premises of the first complainant.  It is reasonable to infer that the terms of the bond in relation to those offences were framed with protection of the first complainant in mind.

24. The fact that the offences were committed while the appellant was inebriated is not of itself a mitigating factor.[17]  The appellant knew before 12 October 2007 of the effect which alcohol has on him and yet chose to consume alcohol.  More significantly, he chose, while intoxicated, to go to the first complainant’s premises.  He was not deterred from committing the present offences by the bond to which he was then subject.  It can also be said that the appellant has not taken advantage of the leniency which has been extended to him in the past.  These factors indicate that personal deterrence is a particularly important consideration in his sentencing.

    [17]   Cf R v Proom [2003] SASC 88 at [43]; (2003) 85 SASR 120 at 129.

25. On the other hand, the appellant has sought and is receiving treatment for his alcoholism.  He has recognised his problems and has good insight into them.  He is a regular attendee at Alcoholics Anonymous.  It can be said that he has embarked, at his own initiative, upon steps directed towards his own rehabilitation.  Given the nature of his alcoholism, this cannot have been easy. 

26. The evidence before the magistrate indicated that the appellant’s underlying character is sound.  There is no reason to suppose that his expressions of contrition are not genuine.  His conduct on 12 October 2007 can be regarded as an aberration.

27. When all these factors are considered, I am not satisfied that the offences, serious as they are, require a sentence of imprisonment to be imposed.

    Re-Sentence

28. In my opinion, the appellant could be sentenced appropriately by the imposition of a requirement that he perform community service.  That requirement will bring home to him the seriousness with which the law views conduct of this kind.  It should therefore operate as a deterrent. 

29. This is a case in which it is appropriate to invoke s 18A of the CLSA.  The offences were committed as part of a single course of conduct.  I regard the offence of assault and the offence of resisting police officers in the execution of their duties as the most serious of the offences.  If sentencing separately for those offences, an order of community service of at least 32 hours in each case would be appropriate.  In my opinion, an appropriate single sentence pursuant to s 18A for the four offences is a requirement that the appellant perform 72 hours of community service.  Were it not for the appellant’s pleas of guilty, I would have required him to perform at least 96 hours of community service.

    Conclusion

1. For the reasons outlined above, the appeal is allowed.  The sentence of imprisonment imposed by the magistrate is set aside.  In lieu thereof the appellant is convicted of each of the four offences.  I impose a single penalty for all four offences comprising a requirement that the appellant perform 72 hours of community service.  Those 72 hours of community service are to be completed within six months of today.  During that period of six months the appellant is to be under the supervision of a Community Corrections Officer and is to obey the reasonable directions of that Officer.  In all other respects the sentence of the magistrate will stand.