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

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

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.

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Details

Case: [2008] SASC 161
Decision Date: 19 June 2008

CaseChat Overview and Summary

In the case of Grzybek v Police, the appellant appealed against the sentence imposed by a magistrate, who sentenced him to a single total term of imprisonment of eight months for the offences of being unlawfully on premises, assault, behaving in a disorderly manner, and resisting police. The term of imprisonment was suspended upon entry into a bond to be of good behaviour for three years. The appellant argued that the sentence was manifestly excessive and that the sentencing remarks were inadequate, failing to properly consider the circumstances personal to him, such as his alcoholism and the fact that his offences were attributable to intoxication. The court was required to determine whether the sentence was manifestly excessive, whether the sentencing remarks were adequate, and whether the circumstances personal to the appellant were properly taken into account. The court also had to consider whether the seriousness of the offences required the imposition of a term of imprisonment. The court found that the sentencing remarks were so inadequate that it should intervene and re-sentence. The court set aside the sentence of imprisonment and, in lieu thereof, convicted the appellant of each of the four offences and required him to perform 72 hours of community service within a period of six months. The court held that the appellant's alcoholism and intoxication were relevant factors to be considered in sentencing, but did not absolve him of responsibility for his actions. The court concluded that the seriousness of the offences did not require the imposition of a term of imprisonment.

The court held that the appeal was allowed and the sentence of imprisonment set aside. The court re-sentenced the appellant, requiring him to perform 72 hours of community service within a period of six months. The court held that the imposition of a sentence of imprisonment of eight months required more by way of reasons than an admonition and exhortation about alcohol consumption. The court held that the appellant's alcoholism and intoxication were relevant factors to be considered in sentencing, but did not absolve him of responsibility for his actions. The court held that the seriousness of the offences did not require the imposition of a term of imprisonment. The court held that the appellant could be sentenced appropriately by the imposition of a requirement that he perform community service. The court held that the requirement would bring home to him the seriousness with which the law views conduct of this kind and should therefore operate as a deterrent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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 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. 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