Humphrey v Police No. Scgrg-00-920

[2000] SASC 391

HUMPHREY v POLICE
[2000] SASC 391

Magistrates Appeal (Criminal)

1................ OLSSON J....... This is an appeal against sentence.  Consequent upon the appellant pleading guilty to two counts of assault occasioning actual bodily harm, the appellant was sentenced to 15 months’ imprisonment, with a non parole period of 10 months.  The learned Chief Magistrate declined to accede to a submission by counsel for the appellant that the custodial sentence ought to be suspended.  The appellant complains, in his notice of appeal, both that the sentence imposed was manifestly excessive and also that it ought to have been suspended.

1. Having heard detailed submissions on behalf of the appellant and a co‑offender, the learned Chief Magistrate published detailed remarks on penalty, in which he recorded his findings of fact. What follows is a brief summary of them.  Certain of the findings are under challenge.

2. The appellant had been married to Cheryl Ann Bickley for a period of some 12 years, up to about the end of 1999.  There were two young children of that relationship, now aged eight and seven years respectively.

3. The appellant and Ms Bickley were the co-owners of a car wrecking business conducted in Port Lincoln.  They also jointly owned a home in which Ms Bickley was living with the children at the time of the commission of the offences.

4. The relationship came to an end in about January 2000.  This occurred at the instance of Ms Bickley, following an argument which had occurred between the two partners.  Ms Bickley thereupon moved out of what had been the matrimonial home located on the business premises to the other jointly owned house property where the offences occurred.  However, the appellant and Ms Bickley continued to co-operate in relation to the conduct of the business and the appellant having access to the children.

5. A medical certificate which was placed before the learned Chief Magistrate indicates that the appellant had sought medical treatment in late November 1999, at which time he was complaining of increasing aggression and violent mood swings - a condition which had progressively worsened over the previous two years.  The doctor commenced treating him in relation to a diagnosis of clinical depression.  He was referred for supportive psychotherapy.  This background may provide some explanation for the somewhat bizarre behaviour of the appellant on the night in question, although the learned Chief Magistrate does not appear to have given great weight to it.

6. A pre-sentence report prepared for the learned Chief Magistrate indicated the appellant regularly drank a fair quantity of beer, although it is not clear as to when this habit commenced.

7. Following her separation from the appellant Ms Bickley formed a relationship with a man named Dendunnen.  There is some doubt as to when the appellant first became aware of that relationship.  The learned Chief Magistrate was content to proceed on the footing that the appellant was unaware of it prior to the night of the offences.  Be that as it may, at about midnight on the night of the offence, Ms Bickley and Dendunnen came home and retired to bed in the home then occupied by her.  They left the two young children  and a 14 year-old female babysitter asleep in the lounge room of the house.  Whilst in bed Dendunnen was naked and Ms Bickley was naked from the waist down.  She was wearing what is known as a crop top.

8. In what was said to be the early hours of the morning, the appellant came to the house in company with a co-offender named Stephens.  Both had been consuming alcohol at the Lincoln Hotel and a number of other venues over a period of many hours.  It seems clear that the appellant in particular was intoxicated to a substantial degree.

9. It was put to the learned Chief Magistrate that, on the night of the offence, the appellant and Stephens had gone to the house occupied by Ms Bickley as a result of being almost goaded, over a period of some hours, into doing so by a female associate of Ms Bickley. She had indicated that the latter may be involved with some other man, and, in effect, urged the appellant to find out for himself.  The learned Chief Magistrate accurately described the female associate as “a most meddlesome person”.  He was informed that she had, in fact, actually driven the appellant and the co-offender to the house.

10. It was the appellant’s assertion that he did not go to the house with a preconceived intention of perpetrating any violence.  On being admitted to the house by the babysitter, the appellant concluded that Ms Bickley might well be in bed with somebody.  It was for that reason that he and Stephens went to the bedroom.  The learned Chief Magistrate was asked to accept that what then occurred was not pre-meditated, but the product of what was described by counsel for the appellant as an immediate and spontaneous emotional reaction.  That assertion was not controverted.

11. The learned Chief Magistrate found that Ms Bickley was awakened by receiving a blow to her head and felt blood trickling down the left side of her face. The light was on.  The appellant took hold of Ms Bickley and held her up against a wardrobe.  She was in a state of considerable distress.  He then turned from her and began kicking Dendunnen, who was dragged out of bed by the hair by the two offenders and was lying naked on the floor. Stephens also began kicking Dendunnen.  The learned Chief Magistrate indicated that he was satisfied that, at the time, both the appellant and Stephens were wearing steel capped boots.

12. The learned Chief Magistrate accepted that, when Dendunnen was dragged from the bed by his hair, he had been asleep.  The appellant said to him that if Dendunnen ever came back he would kill him.  Dendunnen stated that he rolled into a foetal position and was further punched and kicked, particularly in the area of the face and head.

13. It was found that the kicking continued for a considerable time.  The children witnessed some of what was taking place.  They became frightened and ran out of the house.  Ms Bickley eventually managed to get free and also ran out of the house, after the children, in a state of undress.  The appellant followed her and again attacked her outside of the house, but she was able to get away from him. 

14. Eventually Dendunnen also managed to escape.  He ran out of the house stark naked.  The prosecutor told the learned Chief Magistrate that Dendunnen informed the police that, when he got into the street, “he saw Kim who works with Cheryl.  She was just driving off in a green commodore.  He yelled ‘wait, stop’ and jumped in the passenger side and she drove off”.  It is far from clear how the person Kim came to be in the location at the time.  I infer that she may well have been the so-called “meddlesome person” who had been instrumental in triggering off the incident in the first place.

15. In the course of his sentencing remarks the learned Chief Magistrate had this to say:-

    “Ms Bickley had a number of injuries.  She had abrasions and bruises over much of her body.  Mr Dendunnen's injuries were worse.  His head was extremely sore.  He had extensive bruising about his head and body.  He had bleeding behind one of his eyes.  He had numerous abrasions and injuries to his lips and his mouth.  Fortunately, neither of the victims were so seriously hurt that they had to go to hospital, but both were terribly traumatised by the incident.

    It was the sort of incident that is every householder’s nightmare.  They were woken from their previously secure sleep in their own home and seriously attacked by violent men when they were naked and very vulnerable.  Both were extremely humiliated.

    Quite apart from their physical injuries, the relationship which they had formed was also damaged.  The children had seen them naked and being assaulted by violent men, one of whom was their own father.  The shock and trauma for those children can only be imagined.  It was equally bad for the adults.  They were aware the children had seen them beaten and humiliated when they were naked.  Mr Dendunnen was forced to flee for his own safety and is now plagued by doubts that Ms Bickley can trust him to take care of her.  Ms Bickley, as can be imagined, is emotionally scarred.  She remains extremely scared.  The security that she experienced previously in her life is ruined.”

16. It is not surprising that the learned Chief Magistrate took a serious view of the offences. This was a particularly nasty incident.

17. He said that such offences undermine the community’s security.  They cause people to doubt the ability of the law and the courts to maintain order in society.  So far as the appellant was concerned, the offences took place against the background that Ms Bickley had been particularly pleasant and cooperative towards him. She had done nothing to attract the type of conduct which actually occurred.

18. In the course of his submissions, counsel for the appellant did not seek to pursue that aspect of the appeal which related to the severity of the head sentence and the length of the non-parole period.  Rather, he focused his attention on the decision of the learned Chief Magistrate not to suspend the sentence imposed. 

19. He contended that, in failing to suspend, the learned Chief Magistrate had demonstrably fallen into error, and had not give an adequate weight to what were said to be compelling factors which pointed to the desirability of a suspended sentence.

20. In particular, he sought to stress:-

.the appellant's plea of guilty

.        what was said to be the unique circumstances of the offending

.that the offending was confined to those circumstances and was out of character and unlikely to be repeated

.the appellant's antecedents - particularly the absence of any serious offending for a period of almost 15 years

.the appellant' s proven industry in establishing his own business, which provided for the support of not only Ms Bickley but also his children and the means of paying for the accommodation in which they resided

.the likely devastating effect of imprisonment on the continued viability of the appellant' s business and the consequential harm likely to result to Ms Bickley and the children

.the favourable pre-sentence report before the learned magistrate and, in particular, the appellant’s contrition and insight into his offending and the views of the author of the report as to the impact of an immediate custodial sentence

.the community interest in securing the rehabilitation of the appellant

1. It was also contended on behalf of the appellant that the learned Chief Magistrate had erred in his general approach to the sentencing process.  It was pointed out that the appellant had initially been charged with an aggravated offence of serious criminal trespass in a place of residence, created by s 170(2) of the Criminal Law Consolidation Act 1935 (SA). After negotiation, the prosecution accepted pleas to two lesser counts of assault occasioning actual bodily harm.

2. Counsel for the appellant contended that it was apparent from the sentencing remarks of the learned Chief Magistrate that he had really been influenced in his approach by aspects of the incident and policy considerations which were really germane to the s 170(2) offence, rather than the lesser offences actually pleaded to.

3. He particularly referred to references by the learned Chief Magistrate to the victims being awakened from sleep in their own home and attacked when they were naked and vulnerable, the potential undermining of community security and its effect on the apparent ability of the courts to maintain order, as well as a comment by the learned Chief Magistrate to the effect that:-

   “The community is properly concerned about offences of this type and looks to the Court to impose deterrent penalties.”

4. He argued that the learned Chief Magistrate had, in effect, imported into the sentencing process considerations which were plainly relevant to the policy of s 170 (2) and not relevant to s 40 offences, in an impermissible manner.

5. It was further contended that the learned Chief Magistrate had made three other errors. 

6. Issue was joined with his finding that the victims had been kicked with steel capped boots. This had been asserted by the prosecutor, but refuted by counsel for the appellant.  I have no hesitation in concluding that there was simply no basis on which any firm resolution of the disputed fact could have been arrived at.

7. It was also submitted that the learned Chief Magistrate had erroneously categorised the nature of the appellant's antecedents when he said:-

   “He does not have a good record.  He has an extensive record for various offences between 1980 and 1991.  Those offences range from offences of drinking and motor vehicle offences through to a number of offences for dishonesty, and quite serious ones too, and offences of violence which occurred in 1984 and 1985.  He has previously been imprisoned.”

8. It seems to me that there is also force in the points made in this regard.  Whilst it is true that the appellant has a number of convictions over the total period in question, I would not have described his record as extensive - particularly when compared with many persons coming before the court.  As Mr Algie submitted, even although the appellant does have a number of convictions, the bulk of them are in respect of relatively minor offences and occurred a long time ago.  In fact, during the 15 years preceding the offences presently under consideration, the appellant has led what is essentially a law‑abiding and industrious life.  The learned Chief Magistrate's characterisation of the situation tends to be somewhat misleading and does not recognise, or give due weight to, this aspect.

9. Finally, it was said that the learned Chief Magistrate plainly proceeded on the understanding that the appellant had previously served a significant custodial sentence for other offences, whereas this was not the case.

10. The appellant’s antecedent record indicates to me that, whilst he was initially sentenced to periods of imprisonment in the Geelong Magistrates Court in August 1985, that sentence was overturned on appeal. Relatively modest fines were substituted for the custodial sentences.  It is common ground that, whilst he had also been sentenced to six months imprisonment for car theft and criminal damage in 1983, that sentence had been suspended.  It follows that this complaint has been made good.

11. I accept that this is a not unimportant matter, because it is of great significance in relation to the consideration of whether a custodial sentence ought, or ought not, to be suspended.  There is a world of difference in addressing the situation of an offender who has not learned from a previous custodial sentence, by way of contrast with one who has never experienced such a sentence.

12. Whether or not it may fairly be said that the learned Chief Magistrate inappropriately imported into the sentencing consideration factors which were relevant to the policy underlying s 170, but not s 40, it must be accepted that the combination of errors above referred to vitiated the sentencing process.  The appeal must be allowed. It becomes my task to exercise the sentencing discretion afresh.

13. As earlier indicated, Mr Algie realistically did not seek to pursue an argument that the head sentence and non-parole period were manifestly excessive.

14. With all due respect to the learned Chief Magistrate, I think that it tended to be distracting to advert to policy considerations which are in fact very pertinent to s 170 situations, but which are not, routinely, necessarily applicable to offences under s 40.

15. True, s 170 type incidents are normally charged and dealt with pursuant to that section.  On the other hand, there can be no doubt that these were particularly serious offences of their type, an aggravating feature of which was that the offenders were admitted to the premises in the early hours of the morning and entered the bedroom occupied by the victims uninvited by and unknown to them, whilst they were asleep.  Without any provocation on their part, they were unceremoniously dragged out of bed and very seriously assaulted by two booted assailants.  There can be no doubt that the community would properly be outraged if such conduct did not attract a substantial custodial sentence.

16. It follows that the head sentence and non-parole period were entirely appropriate, to mark the seriousness of the offending.

17. It seems to me, with respect, that a combination of the distraction of the policy considerations to which I have referred, coupled with the impact of the errors identified, have led to a result in which insufficient weight has been given to some quite important factors identified by Mr Algie.

18. First, the accused has never previously been required to serve a custodial sentence and has had a relatively good record over the last 15 years.

19. Second, he has entered a timely plea of guilty and the pre-sentence report indicates that he is truly contrite and now appreciates the enormity of his conduct.  It is difficult to disagree with the conclusion of the probation officer that service of a custodial sentence would achieve little.  It is unlikely that the appellant will re-offend.

20. Third, it was not the initiative of the appellant to go to the house.  He was taken there by a mischievous, trouble making acquaintance of Ms Bickley.  The finding by him of another man in bed with his former partner, no doubt exacerbated by the combined impact of his state of mental health and a high level of intoxication, clearly triggered off a severe, sudden emotional reaction.  This was not a deliberate, pre-meditated invasion and assault.

21. Fourth, the appellant’s behaviour was out of character in relation to Ms Bickley, notwithstanding that he had been involved in an assault on some person about 15 years ago.

22. Fifth, it is obvious that a requirement actually to serve a custodial sentence is most likely to trigger off a collapse of the appellant’s business and, with it, an ability to service the mortgage loans in respect of both it and the house occupied by Ms Bickley and the children.  That would cause a great detriment and hardship to them.

23. Finally, given the need to accord proper recognition to the factor of general deterrence, there is a strong community interest in fostering the appellant’s continued rehabilitation.

24. It has often been said that a suspended sentence is a very real punishment.  It is certainly a potent means of assuring the continued good behaviour of the offender in the immediate future.

25. I am persuaded that, in this case, the considerations to which I have just referred, considered in their totality, constitute very powerful reasons for suspending the custodial sentence in this case.  I do not agree that it will send a wrong message to the community, or fail to ensure, as Ms Barnett suggested that it might, proper protection to women against vicious assaults by men.  The appellant has a substantial sentence of imprisonment hanging over his head in the immediate future.  This will be a powerful guarantee against inappropriate behaviour whilst, at the same time, preserving the appellant’s capacity to maintain living accommodation for both himself and his family.  Moreover, what occurred was the product of a quite unique set of circumstances.  There was, of course, a significant difference between the situation of the appellant, on the one hand, and that of his co-offender, on the other.  The latter voluntarily joined in meting out gratuitous and cowardly physical punishment to another person, as an act of brutality, when he had no interest in what was involved and no cause whatsoever to do what he did.

26. The formal order of the court will therefore be that the appeal be allowed.  The custodial sentence and non-parole period are confirmed.  However, the sentence will be suspended, on entry by the appellant into a bond of $500 to be of good behaviour for a period of two years, terms of which are that he is to be subject to the supervision of a probation officer and also undergo or participate in such rehabilitative, medical, and psychological programmes as that probation officer may reasonably direct.