Hill v Police No. Scciv-01-1728
[2002] SASC 28
•30 January 2002
HILL v POLICE
[2002] SASC 28Magistrates Appeal: Criminal
PERRY J. (ex tempore) This is an appeal against the sentence imposed in the Magistrates Court sitting at Christies Beach on a charge of using offensive language in a public place. In all, the appellant was charged on three counts, all arising out of the same incident which occurred on 15 February 2001. Those counts were that he drove an unregistered motor vehicle, that he drove while there was present in his blood a prescribed concentration of alcohol, and that he used offensive language.
The circumstances of the offending are set out in the affidavit of the prosecutor, Mr Drinkwater.
It appears that at about 8.30 pm on the day in question the appellant was observed by police officers driving a Chrysler sedan motor car in Roy Terrace, Christies Beach. Apparently there were signs of some mechanical or engine difficulties. The vehicle stopped. The appellant alighted from it, together with another person.
Perhaps surprisingly, the appellant approached the police and asked for assistance. As it turns out their response was unexpected. The police noticed that the vehicle was not only in a poor condition but that its registration had expired. The vehicle was defected. The appellant was spoken to. It became apparent that he had a strong smell of alcohol on his breath. Checks revealed that he was unlicensed.
The appellant became abusive and began using the words “fuck, “fucking” and “cunt”. Understandably the police officers cautioned him against using such language. This produced a reaction which can only be described as defiant. The appellant came face to face with the officer who was cautioning him and said in a loud, clear voice, “Go fuck yourself, cunt”.
The police officers thereupon arrested him, and he was taken to the Christies Beach police station. About two hours later he was given a breath analysis test which produced a high percentage, 0.127 per cent. It appears that the appellant was held in a cell at the police station for at least two hours, although just how long is not clear from the facts which I have been given.
It is perhaps surprising that when he was charged there was apparently no charge of driving while unlicensed, which would be much more serious than any of the offences with which he was charged.
Be that as it may, the learned sentencing magistrate saw fit to impose on the first count a conviction without penalty; on the second count, that is driving with the prescribed concentration of alcohol, a fine of $600 together with a licence disqualification for nine months; and on the offensive language count he ordered that the appellant be imprisoned for a period of 14 days, which was suspended upon his entry into a $200 good behaviour bond for a period of six months.
As I have said, it is only against the last mentioned penalty that the appeal is brought.
More particularly the appeal focuses on the imposition of a term of imprisonment, albeit suspended. In the notice of appeal the appellant also complains that the learned sentencing magistrate failed to give adequate reasons.
What he had to say was refreshingly brief, although I fear perhaps too brief. He said:
“With respect to count 3, I regard the matter as serious and a fine is insufficient. You are to be imprisoned for 14 days, but I suspend the sentence upon you entering into a bond in the sum of $200 to be of good behaviour for a period of six months. Your solicitor will explain to you the consequences of breaching that bond. The court fees and costs are $205.50.”
It has recently become fashionable for appellants to complain as to the adequacy of reasons. In Rowland v Police[1] I had occasion to comment on the matter in the context of an appeal from the Magistrates Court.
[1] (2001) 79 SASR 569 at 572 - 573.
In that case, I said, inter alia:
“26.Were it not for recent decisions of the Full Court of this Court, and of other courts in Australia, I would have had considerable hesitation in accepting the proposition that a perceived inadequacy in the reasons given by a court at first instance, as opposed to an absence of reasons at all, amounts to an error of law. However, it seems clearly to have been accepted by the Full Court in Papps v Police[2] and in R v Keyte[3] that a failure to give adequate reasons, at least where the decision is subject to an appeal, is an error of law.
[2] (2000) 77 SASR 210.
[3] (2000) 78 SASR 68.
Of course, “... the adequacy of reasons will depend upon the circumstances of the case and the issues in the case”.[4]
In the case of appeals from decisions of magistrates, there are several important considerations to bear in mind.
In the first place, the Magistrates Court in its Criminal Division is still a court of summary jurisdiction.[5] Furthermore, it is the court which unquestionably deals with the highest volume of criminal cases of any court in South Australia. It is the court before which by far the greater proportion of those members of the community who are dealt with in the criminal justice system will appear.
The workload on magistrates has increased substantially in recent years. They are expected to dispose of an ever-increasingly large number of cases.
Against that background, I would be reluctant to pitch any definitive statement of the obligations of magistrates to give reasons for their decisions at an unrealistically demanding level.
It is not necessary for magistrates to produce “long and elaborate reasons”, a concise statement is sufficient.[6] See Halsbury’s Laws of Australia:[7]
‘ ... although a court is obliged to give reasons, it is not obliged to explain every step in its reasoning, given the large scope for intuition, evaluation and guesswork.’
As for matters of law, it will be assumed, without reasons necessarily being given, that the magistrate is familiar with and has correctly applied elementary matters such as an understanding of the onus of proof.”
[4] R v Keyte (supra) per Doyle CJ at 81..
[5] Magistrates Court Act 1991 (SA), s 7(2).
[6] See Romilly v Romilly (1934) 151 LT 179 per Langton J at 180, Ex parte Powter; Re Powter (1946) 46 SR (NSW) 1, Zieta No 59 Pty Ltd v Gold Coast City Council [1987] 2 Qd R 116 and King Ranch Australia Pty Ltd v Cardwell Shire Council [1985] 2 Qd R 182.
[7] Vol 20, para [325-9020] at page 596,148. Citing Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156. See also Saxer v North Sydney Municipal Council (1988) 64 LGRA 203 at 211 per Bignold J (an assessor’s reasons were sufficient where he stated that he accepted the applicant’s case as presented rather than the opposing case).
Here, however, s 9 of the Criminal Law (Sentencing) Act 1988 is apposite:
“(1)A court must, upon sentencing a defendant who is present in court-
(a) state its reasons for imposing the sentence;
(b) cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(c) (Repealed)
(2)The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.”
As I have said, although brevity is not itself necessarily to be criticised, in complying with s 9 the magistrate was under a duty to say more than he did. The imposition of a custodial sentence, albeit suspended, for offensive language is somewhat unusual and demanded a little more by way of explanation from the sentencing magistrate. He might for example have been able to say that the offence was prevalent and that the court needed to send a message to the community that this sort of behaviour would not be tolerated. Or there may have been some circumstance of aggravation which escapes me, but which registered on the learned sentencing magistrate and which might have been worthy of mention. However, I stress that not much more needed to be said. One or two sentences might have been sufficient.
I make the further point that s 9(1)(b) of the Criminal Law (Sentencing) Act 1988 uses the words “cause an explanation to be given”. While that is suggestive of the possibility that it may be a sufficient compliance with the section to delegate the task to someone else, I do not think that that should be regarded as best practice, particularly where a suspended sentence is imposed. I think it is important that the sentencing magistrate, with the authority of the court, should inform the defendant in clear language of the significance of a suspended sentence and the consequences of breaching the bond. Having done so, there would then be absolutely nothing wrong with the magistrate then asking the solicitor or barrister representing the defendant to explain again, after the court is adjourned, the significance of the warning. Indeed, such a course is commended.
Furthermore, it is desirable that the magistrate make a note on the file that the warning has been given. Such a note may be of assistance to a court which may subsequently deal with an application for breach of the bond.
It follows that quite apart from the question whether or not the penalty under review is manifestly excessive, the inadequacy of the sentencing remarks constituted an error of law which entitles this Court to exercise the sentencing discretion afresh.
The appellant is 20 years of age and is to be dealt with on the footing that he has no relevant prior convictions. The language the subject of the charge is regrettably in common use, not only in private.
Mr Clarke who appeared for the appellant makes the point that street-wise police officers may not be so offended by the use of such language as others with heightened sensitivities. While I can imagine that to shout obscenities at or in the hearing of a group of school children might be a circumstance of aggravation, I am not sure whether the objective seriousness of the words is ameliorated by reference to the fact that the words are uttered in the hearing only of someone of more worldly experience.
Be that as it may, it seems to me that a sentence of 14 days imprisonment for this offence was more than it deserved, to the extent that it might fairly be regarded as manifestly excessive.
In the exercise of my discretion I would consider a fine to be appropriate. In the circumstances of this case I would quash the sentence imposed on count 3 and substitute a fine of $250.
I allow the appeal, and so order. The orders and penalties imposed on the other counts will remain in full force and effect.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT1. (2001) 79 SASR 569 at 572 - 573.
2. (2000) 77 SASR 210.
3. (2000) 78 SASR 68.
4. R v Keyte (supra) per Doyle CJ at 81..
5. Magistrates Court Act 1991 (SA), s 7(2).
6. See Romilly v Romilly (1934) 151 LT 179 per Langton J at 180, Ex parte Powter; Re Powter (1946) 46 SR (NSW) 1, Zieta No 59 Pty Ltd v Gold Coast City Council [1987] 2 Qd R 116 and King Ranch Australia Pty Ltd v Cardwell Shire Council [1985] 2 Qd R 182.
7. Vol 20, para [325-9020] at page 596,148. Citing Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156. See also Saxer v North Sydney Municipal Council (1988) 64 LGRA 203 at 211 per Bignold J (an assessor’s reasons were sufficient where he stated that he accepted the applicant’s case as presented rather than the opposing case).
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