Hawke v Police

[2005] SASC 401

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HAWKE v POLICE

Judgment of The Honourable Justice Gray

18 October 2005

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

Matter came before Court as appeal from magistrate against sentence on ground that sentence imposed was manifestly excessive - at the hearing of the appeal the Court also addressed numerous outstanding charges of a similar nature - Court adopted diversionary approach to address causes underlying appellant's repeat offending - mental impairment and intellectual disability of the appellant considered - appeal allowed - sentence imposed by magistrate set aside - Court proceeded pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to sentence appellant in relation to all of the outstanding charges - appellant released without conviction upon entry into bond.

CRIMINAL LAW (SENTENCING) ACT 1988 (SA) s 18A, referred to.
R v McMillan (2002) 81 SASR 540; HT v Police (2005) 91 SASR 329, considered.

HAWKE v POLICE
[2005] SASC 401

Magistrates Appeal

GRAY J:

Introduction

1. This matter initially came before the Court as an appeal brought by Anthony John Hawke against a sentence imposed by a magistrate sitting at Mount Gambier. That sentence was in respect of nine counts of making off without payment, breach of bond, two counts of theft, damage property and three counts of drive unlicensed. Mr Hawke pleaded guilty to these offences and was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to four months imprisonment, suspended upon his entry into a bond to be of good behaviour for two years and to perform 100 hours of community service.

2. At the hearing of the appeal, the Court became aware that Mr Hawke had a number of outstanding charges before the Magistrates Court.  This Court called for the transfer of all files relating to Mr Hawke from the Magistrates Court in Mount Gambier to enable all of Mr Hawke’s outstanding charges to be dealt with together and finalised.  Those files related to the following charges:

   -28 August 2004: application for enforcement of a breach of bond (SCCRM-05-147);

   -26 August 2004: breach of bail (SCCRM-05-151);

   -18 July 2004: drive an unregistered motor vehicle (SCCRM-05-150);

   -20 June 2004 and 27 June 2004: application for enforcement of breach of a bond (SCCRM-05-146);

   -9 April 2004: deception (SCCRM-05-149);

   -2 December 2004: theft and deception (SCCRM-05-76);

   -28 December 2003, 20 June 2004 and 27 June 2004: three counts of making off without payment (SCCRM-04-148).

3. Counsel for the prosecution indicated that there was one further alleged offence known to the prosecution, breach of bail, in respect of which a complaint had not yet been laid.  Counsel indicated that it was probable that the police would not pursue that charge and that no complaint would be laid. 

4. It is intended that these remarks and the sentence to be imposed deal with both the matters raised on the appeal as well as all of the outstanding charges listed above.

   Personal Circumstances

5. Mr Hawke is now 44 years of age.  At the hearing of the appeal, it became apparent that underlying all of Mr Hawke’s offending was intellectual disability and mental illness. 

6. As a child, Mr Hawke experienced learning difficulties to the extent that he was placed in a special class until year 11, when he left school.  In 1992, Mr Hawke was struck by a speeding car whilst walking along a road.  Following the accident, Mr Hawke spent seven days in the intensive care unit at the Royal Adelaide Hospital in a coma.  He remained in the Royal Adelaide for a further four months before being transferred to the Julia Farr Centre for three weeks. 

7. As a result of the trauma, Mr Hawke has an acquired brain injury.  He has some speech difficulties and recurrent headaches.  Mr Hawke also suffers from depression for which he receives treatment. 

8. It is important to note that before the motor vehicle trauma, Mr Hawke had no offending history.  A psychological assessment of Mr Hawke was undertaken by Nonie Kirkby at the request of Mr Hawke’s legal advisers.  In Ms Kirkby’s report, prepared on 11 May 2004, she made the following observations:

   Mr Hawke stated that until he had the accident, he had no offending history.  He admitted the offences as stated in the transcript.  He stated that the offences were “driven by poverty”.  When questioned about his feelings in relation to the offences, he said, “I feel really bad about the crimes.”  “I feel really sorry”.  He stated, “I need a full time job …Gambier Contracts won’t have me back.  I was wrong to steal; it wasn’t mine”.  When I asked how realistic it was that he would not re-offend he said, “No, I can’t say how realistic”.

   Mr Hawke stated that he doesn’t think, “I do something and think after”.

   …

   [T]he offending behaviour is possibly connected to the head injuries he suffered in two ways.  The first is as a consequence of impulsivity, organic in origin, whereby head injury has led to disinhibition and a lack of forethought.  The second is more behavioural.  It is likely that, following the accident, there was a period of financial stability assisted by his compensation payment, but ultimately unsustainable in the long term, from his account.

9. The Court subsequently ordered a further, updated report from Ms Kirkby.  In particular, the Court asked Ms Kirkby to investigate potential support networks or agencies that might be engaged to assist Mr Hawke to conduct his affairs so as to alleviate the factors contributing to his offending.  In her report dated 17 February 2005, Ms Kirkby recommended, among other things, that the services of an agency called “Options Coordination” should be taken up in the role of case manager and service coordinator for Mr Hawke. 

10. A letter provided to the Court on 28 September 2005 from Brett Barney of Options Coordination reported that the measures put in place by Options Coordination to assist Mr Hawke had to that date proved successful in bringing about an end to Mr Hawke’s offending:

    A program of support was implemented over four months, which successfully encouraged [Mr Hawke] to develop a medication routine, and take his anti-depressants at a regular time every day.

    On the 23^rd of June a Guardianship hearing was held, in order to consider a request for an Administration order.  An Administration Order was put in place immediately after the hearing, and the Public Trustee was appointed as the administrator of [Mr Hawke’s] affairs, with Options Coordination as the Liaison agency.

    As a direct result of the Administration Order: a petrol account has been successfully implemented, and has significantly reduced the risk of petrol being stolen; a food account ahs been successfully implemented, reducing the risk of food being stolen; a chemist account has been successfully implemented, maintaining an adequate supply of medication; his fines are being paid off; his car is being registered and maintained; and his weekly requirements are being managed more effectively.

    [Mr Hawke] has also successfully engaged with Uniting Wesley: Employment Access, an Agency which supports people who has a Disability to access and maintain employment.  [Mr Hawke] has not yet obtained employment but is regularly attending interviews and is following the required process to gain employment.

    A program of support has been approved by Brain Injury Options (Julia Farr) to compliment the support offered by Employment Access, once [Mr Hawke] obtains employment, so that the placement can be maintained.

    [Mr Hawke] has improved in his negotiation skills, and appears to reflect more on the consequences of his actions, before he makes a decision.

11. Counsel for the prosecution confirmed that there had been no further offending since Options Coordination had become involved in February 2005.  This reaffirms Mr Barney’s report that the measures implemented to assist Mr Hawke were effective. 

12. It seems that, due to Mr Hawke’s mental and intellectual impairment resulting from the motor vehicle accident, he does not comprehend the nature of his actions, their criminality and the consequences that will necessarily follow from them.  Whilst he seems able to form the necessary intent to commit the offences – that is, he intended to obtain the fuel without paying for it – he appears to lack the usual kinds of mental checks and balances that operate to inhibit people, to stop them from behaving in illegal or anti-social ways.  Mr Hawke’s criminal culpability was accordingly very low.  As such, the primary concern in this matter was to address Mr Hawke’s anti-social inclinations, rather than to punish him for his offending in the ordinary way. 

    Nature of the offending

13. The offending the subject of the appeal from the magistrate involved three counts of making off without payment and one count of theft.  Mr Hawke had, on three occasions, failed to pay for fuel obtained from various petrol stations, and on one occasion he had failed to pay for soft drinks and cigarettes.  He committed these offences in breach of a good behaviour bond that he had entered into on 9 February 2004 at the Mount Gambier Magistrates Court.  A condition of the bond provided that upon a breach, Mr Hawke would be liable to be re-sentenced for the offences it pertained to, which included theft, damaging property, making off without payment and driving a motor vehicle without a licence.

14. The other charges arose from similar circumstances to those the subject of the appeal.  They all arose from Mr Hawke obtaining fuel or other goods from service stations and either simply driving off without paying for them or otherwise deceiving the service station attendees such that they permitted Mr Hawke to drive away without making proper payment. 

15. In addition to the offences presently before this Court both on appeal and through the transfer of files, Mr Hawke has a lengthy antecedent history.  His prior offending is of a similar nature to the current offending, involving minor incidences of theft and deception as well as driving an unregistered and uninsured motor vehicle. 

16. Mr Hawke’s offending exhibits immature conduct.  His counsel submitted that it is appropriately characterised as “child-like”.  Counsel drew the Court’s attention to one occasion when Mr Hawke approached the checkout at a service station and asked that the petrol that he had just obtained be placed on account.  When the service station attendant refused, Mr Hawke simply turned and walked out.

    Finding an appropriate penalty

17. It is apparent from Mr Hawke’s criminal history that his previous involvement with the criminal justice system and the penalties that have been imposed on him, such as good behaviour bonds and fines, have had little effect by way of deterring Mr Hawke from committing further offences.  The fact of his disabilities raises serious doubt as to whether imprisonment would have any deterrent value.  Ms Kirkby explained to the Court that Mr Hawke has viewed the community service that he has previously been ordered by the court to perform as rather more of a reinforcement of his behaviour than a punishment because he likes doing community service.  He enjoys the company of other people, he likes his parole officer, and he derives pleasure from the structure and purpose that it gives to his life. 

18. In light of this, the development of a diversionary approach is the more appropriate course to follow.  As already observed, this approach has thus far proved successful in bringing an end to Mr Hawke’s offending. 

19. In Mc Millan,[1] I observed:[2]

    The concept of diversion involves a realisation that traditional criminal sanctions are not effectively reducing the criminal activities of certain persons within the community.  The aim is to divert or channel those persons out of the court process into programs with a rehabilitative treatment focus.  This is with a view to their long-term rehabilitation and the prevention of further offending.  The conventional criminal process will usually be stayed on the condition that the person enter an appropriate, approved treatment program.  If satisfactory progress is made then the “criminal proceedings” may be discontinued or alternatively a lesser penalty may be imposed than would otherwise have been after the period of treatment has been effectively undertaken.

    The coordination of diversionary programs requires a range of expertise.  The programs are undertaken in conjunction with government agencies and non-government professionals.  Ideally all involved work together towards a common purpose – to address the specific needs of the individual and achieve a result which benefits not only them but provides protection for the community from further offending.

    These observations support the approach I have taken in the present case. 

    [1] R v McMillan (2002) 81 SASR 540.

    [2] McMillan (2002) 81 SASR 540 at [60]-[62]; See also HT v Police (2005) 91 SASR 329 at [22]-[34].

20. But for Mr Hawke’s disability, the approach adopted by the magistrate might have been an appropriate course to follow in the circumstances.  However, the sentencing remarks evidence a lack of understanding on the part of the magistrate as to the extent to which Mr Hawke’s disability plays a role in his offending:

    [Mr Hawke] has become a nuisance in the community by committing the offences in question.  He has been before the court on prior occasions.  He received a warning from the court about his misconduct, however he has continued to offend.  I note that he had been in custody for about six hours when this matter first came before me on the 24^th of May this year.  He has been in custody since the 24^th as I remanded him in custody for sentencing today.

    I am aware of his health problems and acknowledge that he has been injured in an accident and he has also been the victim of an assault.  I also acknowledge that he has financial problems.  I have considered the report submitted on behalf of this man.  In my view, despite his deficits, there is no justification for his continuing misconduct.  I acknowledge that he has paid some compensation to one of the victims, but there are still some outstanding monies to be paid by this man.

    I have looked at all sentencing options and in this Court’s view, the only appropriate sentence in this case is imprisonment.  I acknowledge that he has pleaded guilty to the offences, and for that fact he will receive a discount of about 20% in the sentencing process.  I also acknowledge that he has been cooperative with the policing authorities.  I take into account the time he spent in custody as well.

    There will be one penalty for the offences … He is convicted and is to be imprisoned for a period of four months.  Upon reflection I have decided that there is good reason for suspending the sentence and the aforementioned sentence of imprisonment is suspended upon him entering into a bond in the amount of $100 for a period of two years [upon certain conditions].

21. The magistrate erred by failing to give adequate consideration to the role that Mr Hawke’s disability played in his offending.  This failure led to the imposition of a penalty that, in the circumstances, was manifestly excessive.  The sentence imposed by the magistrate should be set aside.

22. At a recent directions hearing, I indicated to parties that, in light of the fact that Mr Hawke had now ceased offending and that systems had been put in place to prevent his further offending, and in order to bring finality to all of Mr Hawke’s outstanding matters, I proposed to deal with all matters by having Mr Hawke enter into one bond to be of good behaviour for two years.  Counsel for the prosecution indicated that the prosecution would consent to this course.  Mr Hawke’s counsel formally acknowledged Mr Hawke’s guilt in relation to all of the outstanding charges as listed above.  

    Conclusion

23. The appeal is allowed.  The sentence imposed by the magistrate is set aside.

24. In respect of all charges, I propose to proceed pursuant to section 18A of the Criminal Law (Sentencing) Act.  Mr Hawke is to be released without conviction upon his entry into a bond in the sum of $100.00 to be of good behaviour for six months.  As Mr Hawke is presently subject to a guardianship order and has the support of Options Coordination there is no need for further supervision.