Hobbs v Police No. Scgrg-97-1705 Judgment No. S6556

[1998] SASC 6556

HOBBS V POLICE

Magistrates Appeal (Ex Tempore)

LANDER J

This is an appeal against sentence.  The appellant was charged that on 6 July 1997 at Hackham:

(1)...... he assaulted Katherine Anne Kadow;

(2)...... that he was a person who trespassed on premises, the nature of the trespass being such as to interfere with the enjoyment of those premises by the occupier and having been asked by Katherine Anne Kadow, an authorised person, to leave those premises, failed to leave the premises forthwith;

(3)...... that he resisted Gregory Scott Waite, a member of the police force, in the execution of his duty. 

The appellant pleaded guilty to the second and third counts and upon that plea being entered count one was withdrawn.  

The learned Magistrate sentenced the appellant in relation to both counts, presumably pursuant to s.18(a) of the Criminal Law (Sentencing) Act, to be imprisoned for six months but suspended that sentence of imprisonment upon the appellant entering into a bond in the amount of $400 for a period of two years and upon the conditions, first, that he be of good behaviour, and secondly, that he perform 250 hours of community service during the first 18 months of that bond. 

The maximum penalty for each of the offences is imprisonment for six months or a $2,000 fine.

The appellant complains that the sentence is manifestly excessive. Indeed it was argued by Mr Kane, who appeared for the appellant in this court, that the Magistrate imposed the maximum penalty possible. That was so, he said, because the two offences to which the appellant pleaded guilty arose out of the same set of circumstances. Therefore he argued it would have been appropriate in ordering a term of imprisonment on each of the counts to have made the term of imprisonment concurrent. As the learned Magistrate has imposed one sentence under s.18(a) it was submitted that that amounted, in effect, to the Magistrate imposing the maximum penalty on each of the counts.

The appellant was born on 9 January 1973 so was twenty-four years of age at the time of the commission of these offences.  The appellant has custody of a four year old child and is in receipt of a Supporting Parent’s Pension.  He has been supporting that child for the past two and a half years.

Apparently he had been in a de facto relationship with Ms Kadow for a period of time.  When that relationship came to an end she told him to leave the property and in compliance with her request he did.  Later, on the same day, however, he went to a friend’s place where he consumed alcohol and then returned to the complainant's property at about 7.30 p.m. drunk and wanting to talk with the complainant.  The complainant let the defendant into the house hoping he would leave.  After a conversation she requested the appellant to leave as he was causing a disruption.  The complainant said that she made two attempts to call the police but had the telephone snatched from her on both occasions.  The police arrived and asked the appellant to leave on several occasions. 

The police returned at 9.30 p.m.  and when they arrived witnessed a scuffle behind the curtains.  The police spoke to the appellant who initially denied that he had trepassed on the property.  He was then requested to give his personal particulars but turned and walked away.  He returned and began to argue with Ms Kadow.  He was requested on a number of occasions to leave.  When he refused he was eventually arrested and in the making of the arrest the appellant resisted police by pulling his arms backwards, moving backwards and attempting to break the hold of the police.  He moved away from the police thrashing his arms and pulling his arms under his body.  He attempted to bite the police in the struggle. 

The appellant has a number of previous convictions for a variety of matters. The convictions indicate an attitude of disrespect for the law. Indeed, at the time of the commission of these offences, the appellant was already on a bond suspending a sentence of imprisonment for the offence of receiving. Apparently no application has been made under s.58 of the Criminal Law (Sentencing) Act for the revocation of the suspension of imprisonment. 

It was put to the learned Magistrate on behalf of the appellant that the incident was effectively a domestic dispute which got out of hand.  I think it can be said that this was a domestic dispute.  Having said that, the conduct is made no less serious by virtue of its domestic nature.  It is the case, as the learned Magistrate observed, that domestic disputes of this type often get out of hand and often involve police officers who are called in to defuse violent situations and who, themselves, suffer violence at the hands of persons who have lost their ability to think rationally. 

In sentencing this appellant, the learned Magistrate was obliged to take into account aspects of personal and general deterrence.  Clearly enough the sentence imposed had to be sufficient to deter this appellant from further harassment of Ms Kadow.  In relation to general deterrence, it is important that the learned Magistrate send to the community at large, by way of his sentence, a message that this type of harassment of a woman, whether induced by alcohol or not, is impermissible and will give rise to heavy sentences.  The learned Magistrate also had a duty to support police officers, who are obliged to respond to domestic situations of this kind and do so at some risk to themselves:  Miller v Huffa (1980) 24 SASR 595.

The appellant pleaded guilty to these offences after there had been some negotiation in relation to count one.  Those negotiations culminated in the police agreeing to withdraw that first count.  His plea of guilty indicates, in my opinion, genuine contrition and remorse.  The learned Magistrate was obliged to give him credit for that plea and for the indication of contrition and remorse.  The learned Magistrate did not mention that he gave the appellant any credit for his plea.  Indeed if Mr Kane's argument is right, that is, that he imposed the maximum penalty possible, he could not have given any credit to the appellant for his plea. 

I think in practical terms Mr Kane’s argument is right.  In practical terms the most serious penalty that this appellant could have expected was imprisonment for six months on each offence, to be served concurrently.  The effect of the penalty imposed, therefore was to impose the maximum.  Of course the maximum penalty is reserved for the most serious cases.  Whilst this is a serious case, and whilst the appellant's antecedents did not indicate that he ought to be offered too much leniency or compassion, it is not the most serious case that can be imagined.  Moreover, he was entitled to credit for the plea of guilty. 

In my opinion the sentence of six months imprisonment on both offences was manifestly excessive and ought to be set aside.  In my opinion an appropriate sentence of imprisonment would be three months. 

The appellant is not present in court today and therefore I am not in a position to require him to enter into a bond to suspend the period of imprisonment.  I will indicate, however that if the appellant is prepared to enter into a bond in the same terms as that proposed by the learned magistrate, I will allow the appeal for the purpose of reducing the sentence of imprisonment from six months to three months and suspend it on those said terms. 

In those circumstances I will adjourn the appeal until 9.30 a.m.  on Friday, 20 February 1998 for the purpose of the appellant attending at court to enter into a bond in the terms proposed by the magistrate and indicate that if he is prepared to enter into that bond, that I will allow the appeal for the purpose of reducing the imprisonment to three months.