Henderson v Police No. Scciv-02-905

[2002] SASC 273

HENDERSON v POLICE
[2002] SASC 273

Magistrates Appeal:  Criminal

1. PERRY J.  (ex tempore)     The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Mount Barker following his plea of guilty to a charge of indecent assault (Criminal Law Consolidation Act 1935, s 56). Upon his entry of the plea a separate charge involving another alleged victim was withdrawn.

2. The learned sentencing magistrate imposed a penalty of two calendar months imprisonment. It is from that sentence that the appeal is brought.

3. According to an affidavit of Mr Symonds, the police prosecutor who presented the matter, he informed the learned sentencing magistrate that at about 10.30 pm on Saturday 30 June 2001 the victim, who was a girl aged 16 years, went to a BP service station on Adelaide Road at Mount Barker. Two of her friends got out of the car they were travelling in to get some petrol. They were bending over to get the petrol cap off when two males who were inside the shop attached to the station yelled out, “Bend over some more, show us your butts” and similar offensive comments.

4. The appellant then emerged from the shop, approached the vehicle and went around to the front passenger seat, where the victim was sitting. He proceeded to sit on her lap and said, “I bet you’ll like this”. She said, “Get off me”.

5. The appellant then turned to face her and forced her backwards so that she was lying back across the middle console on to the driver’s seat. He started to rub himself against her while lying on top of her. The victim said, “Fuck off”, whereupon the appellant grabbed both her breasts with both hands. The victim then managed to push the appellant off and he got out of the car and walked away. The victim closed and locked the door of the car as he did so.

6. After the matter was reported to the police, the appellant was interviewed on video, but exercised his right not to answer any questions.

7. He pleaded not guilty and was remanded on a number of occasions before the matter was brought on for trial. It was only then that he pleaded guilty to one count, the other count, as I have indicated, then being withdrawn.

8. The appellant is aged 30 years. He has an extensive criminal record commencing in 1990 when he was sentenced to six months imprisonment, suspended on an 18 months bond, following a conviction for breaking and entering a building.

9. Since then he has committed very many traffic offences and offences of disorderly behaviour, common assault, larceny and several drug offences.

10. I accept the submission of counsel for the appellant Mr Cuthbertson that the record does not indicate any particularly serious assault, although several of them are clearly not minor assaults, having regard to the penalty which was imposed. The most that can be made of the record is that it supports the view that the appellant has a tendency to violence and that this has resulted in convictions for offences of violence over a fairly lengthy period.

11. On the hearing of the appeal I received an affidavit sworn by Mr Wardle, who was counsel for the appellant in the court below. From this affidavit it appears that he submitted that this was a drunken escapade, that the appellant and his friend had been drinking and had stopped at the service station for petrol. They emerged from the shop after paying for the petrol, when they observed the girls at the pump. It was then that one of the girls was bending over and provoked the comment to which I have referred.

12. Mr Wardle submitted that the appellant’s recollection of the event was “not one hundred per cent”, but that he could recall that he apologised as soon as he realised that his advances were not welcome.

13. Mr Wardle also referred to the appellant’s antecedents, and said that the appellant was in a relationship with a woman who had borne three children by him, one of whom was only a couple of weeks old. Mr Wardle described the relationship as stable. The appellant was in employment.

14. On the hearing of the appeal Mr Cuthbertson for the appellant made submissions in support of the sole ground of appeal, which is that the sentence imposed was manifestly excessive.

15. He contended that in the first place, the offence did not merit imprisonment. He submitted that the offending, although annoying, was not so invasive as to place the offences in a serious enough category in which it was right to imprison, imprisonment being a process of last resort.

16. He submitted that the magistrate had accurately described the appellant’s conduct as “regrettable, thoughtless and stupid”.

17. He further submitted that if, contrary to that argument, the court was of the view that the offence merited imprisonment, the learned sentencing magistrate erred in failing to suspend the sentence. He drew attention particularly to the fact that his client was in employment and in a stable relationship, and that although the appellant’s record of prior offending was of concern, it should not have been regarded as so serious as to deflect the court from offering to the appellant the benefit of a suspended sentence.

18. Mr Camilos for the respondent contended that to suggest that the circumstances of the offending were merely “annoying” to the victim and could be characterised as a “drunken escapade”, as had been put to the magistrate and repeated in this Court, was not an accurate description of what occurred. I am inclined to agree. I think that this assault was in a more serious category than one which could be passed off with that description.

19. Mr Camilos further submitted that the appellant was not a good candidate for a suspended sentence, and that the prospects of rehabilitation were, in view of his record, not good. He drew attention particularly to the fact that the appellant had previously had the benefit of the bond on no less than twelve previous occasions, and had broken two of them.

20. Mr Camilos accepted as a proper ground of criticism of the learned sentencing magistrate’s sentencing remarks that he did not expressly refer to whatever discount he was allowing for the appellant’s plea of guilty. As I have already pointed out, he submitted that the plea came after a number of adjournments of the matter, and on the eve of trial, and did not warrant a substantial discount.

21. Consistently with the view which has been expressed by the Court of Criminal Appeal on many occasions, and repeated recently in the decision of that court in Place[1], sentencing courts should indicate specifically the discount, if any, given for the plea of guilty. But the failure to do so is not indicative of appealable error, the only question on appeal being whether the sentence actually imposed is shown to be manifestly excessive or inadequate, as the case may be, or is tainted by some other appealable error.

    [1] (2001-2002) 81 SASR 395.

22. During the course of the sentencing remarks the learned sentencing magistrate observed:

    “The defendant comes before the Court, whilst on the one hand as a seemingly quiet, hard worker and on the other a person that has committed a number of offences of violence and dishonesty. He does not have a prior conviction for this sort of offending. Whilst it is of a sexual nature and it does not fit into the category of his prior offences it is nonetheless along the lines of what one might expect from the defendant.

    The defendant seemingly is going to do or take as he wants and when he wants. On this occasion the defendant took for himself the benefits of touching the girl against her will. She is to be protected.”

23. I do not accept the suggestion by Mr Cuthbertson that the early part of those comments indicates that the learned sentencing magistrate was taking an unjustifiably serious view of the appellant’s record.

24. However, I think it might have been better if he had not used the expression that the offence was “along the lines of what one might expect from the defendant”. However, I think that that was a comment in passing, rather than a comment which affects the process which was being followed by the learned sentencing magistrate in reaching his decision.

25. Mr Cuthbertson has put everything which could possibly be put in favour of the appeal, but at the end of the day I remain unpersuaded that he has identified any error which would warrant interference by this Court.

26. I am unable to accept that either the head sentence or the failure by the learned sentencing magistrate to suspend it was manifestly excessive. The maximum sentence which may be imposed for this offence is eight years. This was a serious offence of its class. The appellant’s behaviour was, to say the least, crude in the extreme and must have terrified the young girl concerned.

27. The imposition of a short custodial term, given all of the circumstances of the case, was well within a proper exercise of the sentencing discretion.

28. I would dismiss the appeal.

    [FOLLOWING DISCUSSION WITH COUNSEL]

29. PERRY J.               I direct that the appellant surrender to the Magistrates Court sitting at Mount Barker within seven days of today, or if there is no sitting day within seven days, on the first sitting day thereafter. No order as to the costs of the appeal.

    JUDGMENT CITATION

    1. (2001-2002) 81 SASR 395.