James Fricker v Roland Charles Higgins No. SCGRG 26 of 1992 Judgment No. 3631 Number of Pages 9 Criminal Law and Procedure

[1992] SASC 3631

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), OLSSON(3) AND MULLIGHAN(1) JJ

CWDS
Criminal law and procedure - sentencing - assault occasioning actual bodily harm - sentence of two years' imprisonment imposed upon allowing appeal against sentence of three months imposed by learned Special Magistrate - appeal against that sentence - appellant a prisoner under sentence - assaulted a correctional services officer - circumstances of aggravation - prosecutor made no submissions on penalty after learned Special Magistrate had given an intimation of the penalty he thought appropriate - appellant changed plea to a plea of guilty - respondent not bound by the original sentence - no plea bargain or agreement to stand mute - learned Special Magistrate empowered to impose a sentence for more than two years - that limitation is not to be regarded as the maximum penalty for the of fence - if circumstances justify a longer sentence, offender to be remanded to the District Court - need to afford protection to correctional services officers - sentence imposed on appeal to single judge manifestly excessive - appeal allowed - sentence of imprisonment for nine months imposed. Birch v Fitzgerald (1975) 11 SASR 114; Kotra v Kraft (1983) 111 LSJS 23; Sotirchos v Bates (1985) 123 LSJS 226; Ware v Betts (1987) 134 LSJS 212; R v Whittingham (1988) 49 SASR 67; Whittingham v McFarlane (1988) 147 LSJS 395; Volprecht v Sheldon (1988) 142 LSJS 475 and Vartzokas v Zanker (1989) 51 SASR 277 referred to. Criminal Law (Sentencinq) Act 1988 s 19(3), s 32(5)(b); Statutes Amendment and Repeal (Sentencing) Act 1988 s 4; Acts Interpretation Act 1915 s 28(a) and Criminal Law Consolidation Act 1935s 40. Sumner v Fingleton (unreported 25th June 1973); Salt v Galkowski (1978) 19 SASR 130 and Hansen v Wood (1989) 153 LSJS 483, applied. The Queen v Wilton (1981) 28 SASR 262; Malvaso v The Queen (1989) 168 CLR 227 and R v Tait and Bartley (1979) 24 ALR 473, discussed.

HRNG ADELAIDE, 3 September 1992 #DATE 25:9:1992
Counsel for appellant:     Mr G F Barrett
Solicitors for appellant:    P R Dixon and Associates
Counsel for respondent:     Mr A P Moss
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 MULLIGHAN J The appellant pleaded guilty on 30th October 1991 to a charge of assault occasioning actual bodily harm. A learned Special Magistrate sitting as a Court of Summary Jurisdiction at Holden Hill imposed a sentence of imprisonment for three months. On appeal by the respondent, who is the informant, against that sentence, a Judge of this Court increased the sentence to imprisonment for two years. The appellant appeals by leave against that sentence. 2. The appellant is a prisoner under sentence at the Yatala Labour Prison. He was sentenced to life imprisonment on 19th November 1985 having been found guilty of murder. A non-parole period of 18 years was fixed at that time. On 16th December 1987 he was found guilty of unlawful wounding and sentenced to imprisonment for two years and nine months. On 19th January 1988 he was found guilty of escaping from lawful custody and carrying an offensive weapon and was sentenced to imprisonment for three months and one month respectively. All of these sentences imposed after the life sentence are to be served concurrently, one to another, but cumulatively upon the life sentence. The non-parole period was extended to 19 years and three months. 3. On Sunday, 14th April 1991 the appellant assaulted a correctional services officer at G Division of the Prison. The officer and another officer were escorting the appellant to an exercize yard when he punched the officer in the left side of the face causing injuries. The appellant was then restrained by the two officers. In consequence of the assault the officer suffered a badly bruised left eye, laceration of the left eyebrow and a fracture of the upper left cheek bone requiring treatment in hospital. The lids of the eye remained closed for a time and the injuries caused considerable pain. 4. Initially, the appellant pleaded not guilty to the charge and a trial commenced before the learned Special Magistrate on 30th October 1991. The officer gave evidence but, before his evidence was completed and any other evidence was called, the learned Special Magistrate asked the appellant's counsel if his defence was self defence or consent. She informed the learned Special Magistrate that the appellant would assert that the officer consented to the assault. The learned Special Magistrate informed her that in his view there was no such defence to the charge and referred her to a passage in Archbold's Criminal Pleading Evidence and Practice. He then retired so as to give her the opportunity to take instructions from the appellant. A little later the appellant's counsel and the prosecutor were called into the chambers of the learned Special Magistrate. He informed the prosecutor that he did not believe the correctional services officer and that consent, if not a defence, ought to mitigate any sentence. It appears that a discussion ensued during which the learned Special Magistrate intimated that in his view an appropriate sentence, in the circumstances, was imprisonment for three months. Whilst there was no evidence before us as to what, if anything, was said by the learned Special Magistrate in his chambers on the question of sentence, I am prepared to accept, for the purpose of the argument advanced on this appeal, that the learned Special Magistrate did give that intimation. The appellant's counsel then left to take instructions. When the hearing resumed the appellant pleaded guilty to the charge. His counsel made submissions in mitigation of penalty but the prosecutor did not make any submissions. A sentence of imprisonment for three months was imposed. 5. The respondent appealed against the sentence on the ground that it was manifestly inadequate and that the learned Special Magistrate erred in not referring the question of the extension of the non-parole period to the Supreme Court. The appeal came before the learned Judge on 19th February 1992. The appellant's counsel on that occasion was briefed shortly before the hearing of the appeal. He was not informed of what had transpired in the chambers of the learned Special Magistrate and, in particular, as to the intimation as to the penalty which would be imposed if the appellant pleaded, or was found, guilty. Apparently there had been some lack of communication between the appellant's solicitor, his previous counsel and the counsel who appeared at the appeal and consequently the learned Judge was not informed of those matters. The learned Judge allowed the appeal and increased the sentence. He expressed the view that the appropriate sentence was somewhere between two years and three years and concluded that the sentence should have been two years and four months in view of the past record of the appellant. However, as the learned Special Magistrate could not impose a sentence of more than two years: see s.19(3) of the Criminal Law (Sentencing) Act 1988 and s.4 of the Statutes Amendment and Repeal (Sentencing) Act 1988, the learned Judge decided, correctly in my view, that he could not impose a greater sentence. Consequently, he quashed the sentence of three months and imposed the sentence of two years. He ordered that the sentence commence on 30th October 1991 and that the question as to whether the non-parole period should be extended be referred to this Court, pursuant to s.32(5)(b) of the Criminal Law(Sentencing) Act 1988. 6. At the outset of this appeal, Mr. Barrett contended that by reason of the conduct of the prosecutor before the learned Special Magistrate, the respondent was bound by the sentence of three months and no appeal against the sentence should be entertained. On his argument the extent of the sentence had been resolved informally before the plea of guilty. The appellant expected to receive, and did receive, that sentence. However, it must be acknowledged that the only relevant conduct of the prosecutor is that she did not address any submissions to the learned Special Magistrate on the question of sentence. Mr. Barrett sought support for his argument from observations of this Court in The Queen v. Wilton (1981) 28 SASR 262 and the High Court in Malvaso v. The Queen (1989) 168 CLR 227. In the former case King CJ (with whom Mitchell and Williams JJ agreed) said, at pp 367-368:-
    "It is necessary to consider whether the prosecution
    should be allowed to raise on the appeal the contention that the
    sentence ought not to have been suspended when (that) contention
    was not put in the Court below. The consequences of allowing
    the prosecution to do so are serious. The respondent has faced
    the prospect of deprivation of his liberty by way of
    imprisonment and has been spared, subject to observance of the
    conditions of the bond. If the prosecution is allowed to raise
    the contention he must again face the prospect of imprisonment.
    ... In my opinion, this Court should allow the prosecution to
    put to it, on an appeal against sentence, contentions which were
    not put to the sentencing Judge, only in exceptional
    circumstances which appear to justify that course. ... In
    particular where a submission is made by counsel for a convicted
    person that a sentence should be suspended or a possible
    suspension is mentioned by the judge, and this course is
    regarded by the prosecution as beyond the proper scope of the
    judge's discretion, a submission to that effect should be made.
    Generally speaking, if the submission is not made to the
    sentencing judge the prosecution should not be able to advance
    that contention successfully on an appeal by the
    Attorney-General." 7. In Malvaso v. The Queen (supra) Mason CJ, Brennan and Gaudron JJ said, at p 233:
    "The prosecution's bargain to stand mute when a suspended
    sentence was sought on behalf of the applicant was carried into
    effect and the prosecution was thus compromised in its
    presentation of the arguments which might otherwise have led the
    learned sentencing judge to impose a sentence against which the
    Attorney-General would not have sought leave to appeal. That is
    not to say that the agreement between the prosecuting
    authorities and the applicant affected the duty either of the
    sentencing judge or of the Court of Criminal Appeal (if leave to
    appeal were given) to impose the sentence which appeared
    appropriate to the Court in the circumstances. The Court's
    sentencing discretion is to be exercised in the public interest;
    it cannot be fettered by a plea-bargaining agreement. Nor can
    such an agreement bind the Attorney-General not to exercise his
    statutory power to seek leave to appeal and to appeal in any
    case where, in his opinion, the proper administration of
    criminal justice requires that power to be exercised.
    Nevertheless, if an agreement between the prosecuting
    authorities and an offender has affected the course of
    proceedings before the sentencing judge and the course of
    proceedings is relevant to the order which should be made on the
    Attorney-General's application for leave to appeal, the Court
    may have regard to those circumstances in determining whether
leave to appeal should be given." 8. Deane and McHugh JJ, at p.240, expressed the view that:- "... the fact that the prosecution had expressly informed the sentencing judge that it did not wish to be heard in opposition to such an order militates against the order being overridden on an appeal by the Attorney-General against sentence." 9. They expressly agreed with the observations of King CJ in The Queen v. Wilton (supra) to which I have referred. 10. I do not discern any support for Mr. Barrett's contention from those cases. Here there was no agreement between the prosecution and the defence. The prosecutor did not agree to stand mute. There was no plea bargain. It seems that the appellant decided to change his plea after becoming aware that his proposed defence was not available at law. If the intimation of the learned Special Magistrate as to the likely sentence played some part in the reason for his decision, the prosecutor played no part in that situation. The obligation of the prosecutor in the sentencing process was discussed in R. v. Tait and Bartley (1979) 24 ALR 473 by the Full Court of the Federal Court. At pp 476-477 the Court said:-
    "It would be unjust to a defendant to expose him to
    double jeopardy because of an error affecting his sentence, if
    the Crown's presentation of the case either contributed to the
    error or led the defendant to refrain from dealing with some
    aspect of the case which might have rebutted the suggested
    error. The Crown has been said not to be concerned with
    sentence (see, eg Lawrence J in Paprika Ltd v Board of Trade
(1944) 1 All ER 372 at 374; (1944) 1 KB 327 at 332), but when a
    statutory right of appeal is conferred upon the Crown, that
    proposition must be more precisely defined. It remains true
    that the Crown is required to make its submissions as to
    sentence fairly and in an even-handed manner, and that the Crown
    does not, as an adversary, press the sentencing court for a
    heavy sentence. The Crown has a duty to the court to assist it
    in the task of passing sentence by an adequate presentation of
    the facts, by an appropriate reference to any special principles
    of sentencing which might reasonably be thought to be relevant
    to the case in hand, and by a fair testing of the defendant's
    case so far as it appears to require it. If the proposition
    that the Crown is not concerned with sentence was ever construed
    as absolving the Crown from this duty, it cannot be so construed
    when a Crown right of appeal against sentence is conferred. The
    Crown is under a duty to assist the court to avoid appealable
    error. The performance of that duty to the court ensures that
    the defendant knows the nature and extent of the case against
    him, and thus has a fair opportunity of meeting it. A failure
    by the Crown to discharge that duty may not only contribute to
    appealable error affecting the sentence, but may tend to deprive
    the defendant of a fair opportunity of meeting a case which
    might ultimately be made on appeal. It would be unjust to a
    defendant, whose freedom is in jeopardy for the second time, to
    consider on appeal a case made against him on a new basis - a
    basis which he might have successfully challenged had the case
    against him been fully presented before the sentencing court." 11. Those obervations were expressly approved in The Queen v. Wilton (supra) at p 368. There is no reason to suppose that the prosecutor failed to discharge any of those obligations. The circumstances of the crime were known to the learned Special Magistrate. The appellant's counsel made submissions in mitigation of penalty and it would appear that the prosecutor did not consider that she could make any submissions which would assist the learned Special Magistrate in arriving at a just sentence. For reasons which I shall mention, the sentence imposed by the learned Special Magistrate was manifestly inadequate, but there was no conduct on the part of the prosecutor which caused or contributed to that result. In any event I do not think a prosecutor is obliged to contend for a particular sentence. Whilst it is appropriate for a prosecutor to contend that a custodial sentence should be imposed or that such a sentence should not be suspended, it is entirely a different matter to contend for a particular sentence. In my view that is no part of the proper role of a prosecutor. 12. Before addressing the grounds of this appeal, it is necessary to mention the approach of the learned Special Magistrate and the learned Judge to the sentence which should be imposed. The learned Special Magistrate accepted that the appellant perceived that the correctional services officer had it in for him and wished to fight him although he was not prepared to accept that such was, in fact, the case. The officer made some comment to the appellant some days before the assault which is said to have caused the appellant to have that impression. The appellant complained to the Ombudsman but that complaint was not resolved before the assault. The learned Special Magistrate found that the appellant decided to resolve the matter by assaulting the officer. The evidence in support of that conclusion is that the appellant was detained in G Division of the Prison and the officer worked in that division for some months prior to the assault. There were many altercations between the appellant and the officer. A few days before the assault the appellant said to the officer words to the effect that he did not think that he was worth $20,000. The suggestion is that this remark meant that the appellant was not going to assault the officer because he did not think he was worth it. Although the officer did not accept that he took it that way, he responded by saying to the appellant, "Don't put your aspirations before your capability". It is difficult to see how this evidence justifies the conclusion that the appellant perceived that the officer wanted to fight him. However, it was not suggested on this appeal that there should be a different basis for sentencing. 13. The learned Special Magistrate gave credit to the appellant for his plea of guilty and accepted that he had initially denied his guilt because of a misunderstanding of the law by his counsel. He took into account that the appellant had "already been dealt with to some extent within the prison system" for the assault as he had been isolated in his cell for three days, had lost privileges for a month and had been kept in isolation from other prisoners for another 30 days. He went on to say:-
    "There's no doubt however that this was an unprovoked
    assault, in terms of the immediate incident. You took advantage
    of a situation which presented itself to you, to strike a blow,
    which caused substantial injury to (the officer). It was
    however in a situation where it was unlikely to become
    escalated. There were no other prisoners in the area. It was
    only you and the two prisoner officers. And all of that does
    mitigate the sentence." 14. The learned Judge regarded the assault as a serious breach of the criminal law. He said:-
    "... it is clear from authorities to which I have been
    referred this afternoon that assaults upon persons in the
    position of (the officer), either police officers in the course
    of their duty or correctional service officers likewise in the
    course of their duty, should be treated seriously by the courts,
    both from the point of view of particular deterrents (sic) to
    the accused person concerned, as well as general deterrents
    (sic) to others who may be similarly inclined. Reference was
made to Salt v Galkowski (1978) 19 SASR 130, particularly at the
    top of p.131, the Judgment of Mitchell J (as she then was), and
Hansen v. Wood (1989) 153 LSJS 483 at 485 in the remarks of
White J." 15. After referring to the principles to be applied on appeals against sentence by the Crown, he went on to say that the offence was "a particularly bad case by a man with a particularly bad record" and that there was no scope for leniency. He doubted that he could regard the confinement and isolation of the appellant in the prison or the withdrawal of privileges as consequence of the assault as proper mitigating circumstances, but accepted those matters as "of some slight relevance". He concluded that the sentence of three months was manifestly inadequate. 16. I turn to the various grounds of the appeal in the order in which they were argued. Mr. Barrett contended that the learned Judge was in error in his approach to s.19(3) and (4) of the Criminal Law (Sentencing) Act which provide:-

    "19.(3) A court of summary jurisdiction, in sentencing a
    defendant convicted of a minor indictable offence, does not
    have the power to impose a sentence of imprisonment, or a
    fine, that exceeds Division 5.
    (4) Where a court of summary jurisdiction has convicted a
    defendant of a minor indictable offence and there is in the
    courts opinion sufficient reason for imposing a penalty in
    excess of the limits imposed by subsection (3), the court must
    remand the defendant in custody or on bail to appear for
    sentence before a District Criminal Court at a time and place
    fixed by the court of summary jurisdiction." 17. A charge of assault occasioning actual bodily harm is a minor indictable offence. S.28(a) of the Acts Interpretation Act provides that a Division 5 sentence is a term of imprisonment not exceeding two years. Consequently, a learned Special Magistrate sitting as a Court of Summary Jurisdiction could not impose a sentence of imprisonment exceeding two years. The maximum penalty for assault occasioning actual bodily harm, in the present circumstances, is five years: s.40 of the Criminal Law Consolidation Act. As I understand Mr. Barrett's argument, the learned Judge should have regarded the maximum penalty as two years, in view of s.19(3) of the Criminal Law(Sentencing) Act and considered the circumstances of this offence and the appellant on that basis. He contended that as it could not be regarded as the worst type of offence of such aggravated assault, a sentence of two years could not be justified. In my view, the learned Judge approached these statutory provisions in the correct manner. The maximum penalty for the offence is five years, not two years. If a learned Special Magistrate, when sentencing for this offence and after considering all relevant matters, decides that the appropriate sentence should be more than he is empowered to impose, namely two years, he must remand the offender to appear for sentence before a District Court which may then impose the correct sentence. If a learned Special Magistrate decides that the correct sentence is two years or less, then he may proceed to sentence. The limitation on the sentence which may be imposed by a Magistrate does not create the maximum penalty for the offence. The maximum remains at five years. 18. Next, it was argued that the learned Judge was in error in regarding the assault, being upon a correctional services officer, as a matter of aggravation as the officer by reason of his conduct had "forfeited" the protection which the courts usually offered to persons in his position and other law enforcement officers, such as police officers. 19. The courts have long recognized the need to do what they can to protect persons who, by reason of their duties, are at risk of assault. Sumner v. Fingleton 25th June 1973, Mitchell J, unreported, Salt v. Galkowski (1978) 19 SASR 130 and Hansen v. Wood (1989) 153 LSJS 483 give expression to that principle in relation to police officers, taxi drivers and community service officers respectively. Obviously there is a need to afford protection to correctional services officers. In my view there is no reason to regard the victim of this assault differently. There is no justification for Mr. Barrett's contention. This was an unprovoked assault upon a correctional services officer in the execution of his duty which is a matter of aggravation. The learned Judge was justified in having regard to the need to deter other prisoners who are minded to behave in a similar manner. Whatever may have been the perceptions of the appellant, the officer had not done anything which could have afforded any reason for the attack. The perception of the appellant as described by the learned Special Magistrate was not, in my view, a matter of mitigation. 20. It was argued that the learned Judge erred in not regarding the loss of privileges and the isolation of the appellant as matters of mitigation. It appears that the learned Judge did have regard to these matters but took the view that they were only of little weight. In my view he was not in error in that approach. It was not made clear whether the withdrawal of the privileges and the keeping of the appellant in isolation was in consequence of a breach of prison discipline or for some other reason. However, whatever the reason matters could not be regarded as of great significance in mitigation. 21. The remaining ground of appeal is that the learned Judge was in error in concluding that appropriate range of penalty in the circumstances was between two and three years given the past record of the appellant and after taking into account matters of mitigation. Our attention was drawn to sentences imposed for this offence or common assault in other cases; Birch v. Fitzgerald
(1975) 11 SASR 114 (two months which was not suspended), Kotra v. Kraft (1983) 111 LSJS 23 (six weeks which was not suspended), Sotirchos v. Bates (1985) 123 LSJS 226 (six weeks which was not suspended), Ware v. Betts (1987) 134 LSJS
212 (three months which was suspended on appeal), R. v. Whittingham (1988) 49 SASR 67 (a sentence of twelve months), Whittingham v. McFarlane (1988) 147 LSJS 395 (a sentence of four months), Volprecht v. Sheldon (1988) 142 LSJS 475 (two months which was suspended), Vartzokas v. Zanker (1989) 51 SASR 277 (a sentence of six months which was suspended). Also we were referred to the report of the Office of Crime Statistics for the years 1989 and 1990 which sets out the range of penalties imposed in three years for offences described as "assaults major". It is unnecessary to set out all of the information contained in that report as it does appear that a sentence of imprisonment for two years is outside the usual range of penalties for this offence. Sentences imposed in other cases may give an indication of a general range of penalty commonly imposed for a particular offence, but usually they are of limited value in determining a proper sentence in a particular case as sentences are imposed in the light of the particular circumstances of each offence and each offender. It is clear that the learned Judge did not regard a sentence of between two and three years as the tariff for this offence. Indeed, he made that clear in his reasons for judgment when he said that he appreciated that sentences for this offence "will vary greatly depending upon the circumstances". 22. Nevertheless, I think the learned Judge was in error in his conclusion that the appropriate sentence in the present circumstances was two years and four months. Such a sentence would be well beyond the usual range of penalty for this offence even after taking full account of the circumstances of aggravation. The learned Judge was correct in his conclusion that the sentence imposed by the learned Special Magistrate was manifestly inadequate but upon quashing that sentence he imposed a sentence which, in my view, was manifestly excessive. Consequently, we must exercize the sentencing discretion afresh. Having regard to all of the relevant circumstances, the appropriate sentence is, in my view, imprisonment for nine months. 23. I would allow the appeal and quash the sentence of imprisonment for two years and impose a sentence of imprisonment of nine months. There is no reason to interfere with the direction of the learned Judge that the sentence commence on 30th October 1991, which was the day on which the learned Special Magistrate sentenced the appellant, or with his order that the question of whether the existing non-parole period fixed with respect to the life sentence should be extended be referred to this Court pursuant to s.32(5) of the Criminal (Law) Sentencing Act.

JUDGE2 KING CJ I concur.

JUDGE3 OLSSON J I have had the advantage of reading the reasons for decision of Mullighan J in draft. 2. I agree with the conclusions to which he has come and the orders which he proposes.