Hart v Police - [2005] SASC 223

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HART v POLICE
Judgment of The Honourable Justice Gray
22 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant convicted of assault, assault occasioning actual bodily harm, breaches of bail and driving an unregistered and uninsured vehicle - magistrate imposed cumulative sentence of 20 weeks' imprisonment - appeal on grounds that sentence imposed was manifestly excessive, that magistrate erred in failing to suspend the period of imprisonment imposed and in imposing a sentence of imprisonment for the breaches of bail.
Consideration of principles governing appeals against an exercise of discretion and appeals against sentence.
Held - appeal dismissed.
House v The King (1936) 55 CLR 499; Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; Dinsdale v R (2000) 202 CLR 321; Kovacevic v Mills (2000) 76 SASR 404, considered.

HART v POLICE
[2005] SASC 223
Magistrates Appeal
GRAY J
Introduction

This is an appeal against sentence.
On 18 March 2005 the appellant, Michael Edward Hart, pleaded guilty in the Christies Beach Magistrates Court to the offences of assault, assault occasioning actual bodily harm, breach of bail and offences related to an unregistered and uninsured motor vehicle.
On 4 April 2004 at Hackham the appellant assaulted David Gustavsson. At or about 11.45am Mr Gustavsson was at Hungry Jacks with his partner and child. At that time, the appellant and his partner were at the same premises. Some court documents were served on the appellant’s partner. This led to a disagreement and the appellant struck Mr Gustavsson in the eye with a closed fist.
On 28 September and 13 October 2004 the appellant failed to comply with the terms of his bail agreement. That bail agreement had been entered into on 21 April 2004 and contained terms as to home detention. It was also a term of the bail agreement that the appellant would not consume alcohol or drugs. The 28 September 2004 offence involved a breach of that condition. The appellant tested positive to amphetamines. The October 2004 breach concerned a failure to report as required to police.
On 16 October 2004 the appellant assaulted Sarah Aylward. Ms Aylward was at home with her partner when the appellant arrived. A fight developed and Ms Aylward yelled at the appellant and spat in his face. The appellant spat back and then hit Ms Aylward in the head. On that occasion the appellant had driven to Ms Aylward’s home in an unregistered and uninsured motor vehicle. This led to the offence of driving an unregistered and uninsured motor vehicle.
On 8 November 2004 at Hackham the appellant assaulted Jeremy Hughes thereby occasioning him actual bodily harm. This offence occurred at about 12.45pm and occurred at the home address of Mr Hughes. He was the neighbour of the appellant. The appellant went to Mr Hughes’ property, yelled at him, and then punched him in the head above the right eye causing a laceration that later required stitches including one to the inner eye.
Magistrate’s Decision
The magistrate imposed a series of cumulative jail terms: in respect of the April 2004 assault, a sentence of imprisonment of two weeks; in respect of the assault on Ms Aylward imprisonment for four weeks; for the assault occasioning bodily harm offence, a term of imprisonment of 12 weeks; and in respect of the breaches of bail, the one penalty of two weeks’ imprisonment. This led to a total term of imprisonment of 20 weeks. The magistrate declined to exercise her discretion to suspend the sentences of imprisonment. An order restraining the appellant from assaulting, threatening, harassing or intimidating Mr Gustavsson was made.
For the offences of being the owner of an unregistered and uninsured motor vehicle standing on a roadway, a conviction was recorded, but no further penalty imposed. In relation to the charge of failing to insure a motor vehicle, a licence disqualification of five months was imposed.
In determining penalty the magistrate had regard to the appellant’s criminal antecedents. They were summarised in the following terms:
[Your antecedent report] shows numerous offences dating back to 1987 including for various types of assault, damaging property and dishonesty. You’ve been sentenced previously to imprisonment and the most recent occasion that you had time in custody to be served appears to be in the year 2000. I was told I think that there’d been no offending between that time and this but I see from your antecedent report that you had an offence of assault in 2002 and an offence of damaging property in 2003, both of which were dealt with in 2004.
The magistrate also had regard to the victim impact statements, the effect of which she summarised as follows:
I’ve had provided to me Victim Impact Statements from Mr Hughes and Ms Aylward setting out the considerable effects that your treatment of them has had on them.
The magistrate had regard to the personal circumstances of the appellant and in particular two psychiatric reports tendered on his behalf. She summarised the contents of those reports as follows:
I’ve also been provided with two psychological reports from Mr Le Page, one dated 20 June 2003, the other 17 February 2005, as well as a report from Dr Greenwood from the Royal Adelaide Hospital dated 3 November 2004. That report sets out the effect upon you of serious burns which you suffered in a car accident on 7 May 2002. It is clear from what I’ve been told that your life has been a difficult one and it’s been made more difficult both physically and emotionally by the effects of the car accident.
Mr Le Page in his most recent report refers to your – and I quote – ‘fragmented and dysfunctional family life associated with considerable abuse by your stepfather’. He also refers to your life-long depressive disorder and impulse disorder and to a long history of substance abuse. The remainder of Mr Le Page’s most recent report appears to be a paraphrasing of your complaints to him about injustices done to you with no remorse for the effects of your actions on your victims.
When arriving at the decision to impose custodial sentences, the magistrate reasoned:
The offences before me are serious and repeated. The offence in November which is the most serious of the offences before me was committed apparently whilst you were on bail for the assault in October. This is a feature of aggravation. The offending of 29 September shows that you are continuing to use drugs. I take into account all that your lawyer has said on your behalf as well as the other materials that have been put to me. I bear in mind as always the need for both personal and general deterrence. I give you credit of 20% for your pleas of guilty, although as I note there appear to be no expressions of remorse for what you have done. The assaults before me are nasty, they’re violent and they’ve had significant effects on the people whom you assaulted. Taking all of those matters into account and giving you as much credit as I can, the penalties of the court will be as follows: ...
The magistrate considered whether grounds existed to suspend the sentences and concluded that there were not. In that respect the magistrate reasoned:
I turn then to whether or not the sentences of imprisonment should be suspended. I consider in all the circumstances that they should not. There do not seem to be good prospects of rehabilitation in your case. Indeed you seem to blame everyone else including the legal system for your troubles and accept little or no responsibility for your continued offending.
The Appeal
The appellant sought leave to extend the time for filing an appeal. The ground relied on was that the appellant had been unable to communicate with his solicitor from the date when he was sentenced on 18 March 2005 until 5 April 2005 as a result of prison procedures involved in setting up arrangements for him to make a telephone call. The Crown did not oppose this application. In the circumstances an order for extension should be made.
On appeal, it was contended that the sentence imposed by the magistrate was manifestly excessive; that the magistrate erred in failing to suspend the period of imprisonment imposed; and finally that the magistrate erred in imposing a sentence of imprisonment for the two breaches of bail.
Manifestly Excessive
As earlier observed, the cumulative total of the sentences imposed by the magistrate was 20 weeks’ imprisonment. Counsel for the appellant submitted that this sentence was excessive in light of the appellant’s recent antecedents. Counsel contended that notwithstanding the number of prior convictions, the appellant had, for significant periods in his life, been free from offending. Counsel drew the Court’s attention to a period following the appellant’s release from custody in 2000, during which it was said that there had been a marked diminution in the frequency and number of offences committed. It was said that the only offences committed during this period were a consequence of major injuries sustained by the appellant in a motor vehicle accident and the appellant’s mental state resulting from those injuries.
Counsel for the appellant pointed to mitigating factors arising from the personal circumstances of the appellant. In particular, counsel referred to: a period spent in custody in 2001 in relation to allegations of rape that were not ultimately pursued; the aforementioned motor vehicle accident and resulting injuries; a period spent on home detention in relation to charges that were not later substantiated; the appellant’s aboriginality and the appellant’s contrition.
Whilst credit cannot be given for the time spent in custody in 2001 in relation to the false allegations of rape, it is one of the aspects of the personal circumstances of the appellant that should be taken into account when determining his sentence.
In House v The King[1] the High Court made the following observations:[2]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[1] (1936) 55 CLR 499.
[2] (1936) 55 CLR 499 at 504-5.
More recently in Wong v The Queen; Leung v The Queen[3] these remarks were reinforced in the following terms:[4]
Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error, which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that 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.
[3] (2001) 207 CLR 584.
[4] (2001) 207 CLR 584 at [58].
In Dinsdale v R[5] the High Court specifically considered the approach to be taken with respect to appeals against sentence. Gleeson CJ and Hayne J observed:[6]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error of the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
[5] (2000) 202 CLR 321.
[6] (2000) 202 CLR 321 at [6].
Similarly Kirby J noted:[7]
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court’s authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.
[7] (2000) 202 CLR 321 at [59] (footnotes omitted).
The factors identified by counsel for the appellant were considered by the magistrate. Those factors may not have been given the weight suggested by counsel for the appellant.[8] However, they were matters weighed by the magistrate in the exercise of her discretion. It is important to record that the appellant’s criminal antecedents were of such a nature as to militate against leniency that might otherwise be afforded. In addition, regard must be had to the fact that the three offences of assault occurred over a seven-month period. Deterrence, both personal and general, were important sentencing considerations. Each of the head sentences imposed by the magistrate was well within her discretion. Each crime involved a separate and distinct incident. It was appropriate to order that the sentences be cumulative.
[8] Kovacevic v Mills (2000) 76 SASR 404.
Imprisonment in respect of breach of bail
Counsel for the appellant submitted that the magistrate erred in imposing a custodial sentence for the two breaches of bail. It was contended that imprisonment was unwarranted for the reason that one breach occurred on the eve of the withdrawal of the unsubstantiated charges for which the appellant was on home detention. The other breach occurred when the appellant failed to report to the police on one of the days that he was required to report. It was pointed out that he voluntarily attended at the police station two days later. It was said the offending was a product of the appellant’s psychological and emotional state, which was a result of life experiences beyond his control.
Compliance with the terms of bail is an important matter. Detection of breaches can be difficult. The appellant’s breaches of bail were deliberate. He was aware of his obligations. His criminal antecedents included breaches of bail and breaches of bonds. The sentence imposed by the magistrate was within her sentencing discretion.
Suspension of sentence
Counsel submitted that the appellant had good prospects for rehabilitation. This submission was founded upon a psychiatric report, which stated that the appellant would benefit from supervision of the kind provided by the Department of Correctional Services if a suspended sentence bond with supervision were imposed.
Given the appellant’s criminal antecedents and the ongoing nature of his criminal offending, his prospects of rehabilitation are poor. The psychiatric evidence suggested that his disadvantaged background made him a poor candidate for rehabilitation. The decision not to suspend the sentence was well within the magistrate’s discretion. It was an appropriate decision in the circumstances.
Conclusion
When determining an appropriate penalty, the magistrate had regard to all of the relevant facts and did not have regard to any irrelevant matters. In light of the appellant’s criminal antecedents, particularly those for offences of violence, it could be said that the magistrate took a very merciful approach when determining sentence. In these circumstances, it is not appropriate to interfere with the discretion of the magistrate.
This appeal is dismissed.