JOHNSTONE v Police - [2008] SASC 357

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHNSTONE v POLICE
[2008] SASC 357
Judgment of The Honourable Justice Nyland
17 December 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Appeal against sentence - charge of aggravated assault – appellant is parent of victim – breach of earlier bond and breach of bail – time served taken into account by imposing no further penalty with respect to those charges – bond not estreated – whether sentence for assaulting child manifestly excessive – isolated act to discipline child with no intent to cause harm – error by Magistrate as to factual basis of sentence.
Held: Appeal allowed – sentence reduced to three months imprisonment suspended upon appellant entering into bond in same terms as those fixed by Magistrate.
Criminal Law Consolidation Act (1935) s 20(3) ; Criminal Law Sentencing Act (1988) s 58(1)(c); Bail Act (1985) s 17, referred to.
Police v Saunders (2003) 229 LSJS 97, considered.

JOHNSTONE v POLICE
[2008] SASC 357
Magistrates Appeal

NYLAND J: This appeal is against a sentence imposed in the Elizabeth Magistrates Court on 11 September 2008. The appellant was charged on information that on or about 18 July 2008 at Elizabeth Downs he intentionally applied force directly to Koddee John Thomas McKenzie contrary to the provisions of s 20(3) of the Criminal Law Consolidation Act 1935. The offence was designated an aggravated offence. The circumstances of aggravation alleged were that the appellant committed the offence knowing that the victim of the offence was a child of whom the appellant was the parent or guardian. (He is in fact Koddee’s father). The maximum penalty for an aggravated offence is imprisonment for a period of three years.
The sentence which is the subject of the appeal
The appellant pleaded guilty to the charge and was sentenced to be imprisoned for a period of six months. That sentence was however suspended on condition that he enter into a bond for a period of two years in the sum of $200, with conditions which included being under the supervision of a Community Corrections Officer and that he undertake counselling for drug, anger management and domestic family violence issues. He was also required during the period of the bond not to attend at the home premises occupied by the child and other members of his family.
Breach of bond
The appellant was arrested with respect to the charge relating to Koddee on 18 July 2008 and remained in custody until 28 August 2008. The matter was remanded to 4 September 2008 to enable the prosecution to lay a charge against the appellant of being in breach of a bond imposed on 3 September 2007 with respect to charges of threaten harm, aggravated assault and throwing a missile. That bond was for a period of 18 months and required the appellant to be of good behaviour and to come up for sentence if called upon.
Breach of bail agreement
The appellant successfully applied for bail on 28 August 2008, but about five hours after his release he went into the house where Koddee resided , which breached the condition of the bail agreement which he had entered into that day, which prohibited him from attending in the vicinity of the premises at which Koddee resided. As a result, the appellant was again arrested and appeared in the Elizabeth Magistrates Court on 29 August 2008 and charged with breaching his bail, at which time he was remanded in custody. On 4 September 2008 the appellant pleaded guilty to all of the offences charged, that is, the breach of bail and breach of bond as well as the charge of assaulting Koddee.
In sentencing the appellant, the Magistrate took into account that the appellant had been in custody for “almost exactly six weeks”. He then indicated that he would take that period of time into account. He noted the circumstances of the breach of bail and referred to the defence submission that the appellant had only been to the premises to collect a motor vehicle but there were mechanical difficulties, so he had remained at the premises. The Magistrate also mentioned the appellant’s acknowledgment that his decision to attend at the premises was “foolish and stupid” and that he had not attended with a view to having contact with Koddee.
The sentence with respect to the breach of bail and breach of bond
The Magistrate went on to say that in the circumstances, and taking into account at least part of the time the appellant had spent in custody, he would convict him without further penalty on the breach of bail charge. The Magistrate then referred to the balance of time spent by the appellant in custody and said in view of that, he was inclined to make no formal order in relation to the breach of bond. He found the breach admitted but considered the balance of time spent in custody was sufficient penalty for the bond breach and therefore made no further order. He did not estreat the recognisance and the bond continued in existence.
The charge with respect to Koddee
The Magistrate then went on to consider the charge of applying force to Koddee, which he described as “appalling”. He said:
It might be said there is a fine line disciplining children with parents but you significantly crossed any such line. It involves a young vulnerable victim and in my view the serious nature of that offending needs to be reflected in the penalty imposed.
The Magistrate considered that a period of imprisonment was appropriate and said that but for the pleas of guilty, he would have sentenced the appellant to eight months’ imprisonment. He did however give the appellant credit for his plea and reduced that sentence to a period of six months’ imprisonment, which was suspended upon the appellant entering into the bond with conditions to which I have earlier referred.
Appellant’s submissions
On the hearing of the appeal, Mr Katsaras for the appellant submitted that the six weeks the appellant had spent in custody prior to the sentence being imposed was sufficient punishment for the offence with respect to Koddee, and that the learned Magistrate had erred in:
(a) imposing a term of imprisonment for that offence, and/or
(b) imposing a term of imprisonment for that offence, the length of which was manifestly excessive.
He also submitted that it had been inappropriate of the Magistrate to have regard to period of six weeks in custody on the breach of bond matter as:
(a) the offence which resulted in the imposition of the bond had not merited imprisonment at first instance;
(b) the breach of bond was not properly considered as to the penalty that was merited and if it did merit imprisonment, the length thereof;
(c) that the time in custody had been in relation to the offence of applying force. The breach of bond had not been laid until after the appellant had served time in custody and on the day of the sentencing submissions[1].
[1] Police v Saunders (2003) 229 LSJS 97
As a matter of convenience, I will deal with the arguments advanced with respect to the bail and bond offences, before turning to the substantive offence. The penalty for non-compliance with a term or condition of a bail agreement is a fine of $10,000 or imprisonment for two years, although the penalty imposed must not exceed the maximum penalty that may be imposed for the principle offence.[2]
[2] Section 17 of the Bail Act (1985).
The learned Magistrate’s remarks with respect to the bail matter are relatively brief. Although he did not specify the exact period, he took into account at least “part of the time” that the appellant had spent in custody before convicting him without further penalty. In my opinion, the breach of bail did warrant some term of imprisonment, given the proximity of the offence to the appellant’s release on bail. Bearing in mind the circumstances described by the appellant’s counsel, I consider a sentence of about 14 days would have been appropriate for that particular offence.
As far as the breach of bond is concerned, it was a condition of that bond that the appellant would come up for sentence if he should breach it. The original offence, which occurred on 3 May 2007, arose out of a dispute between the appellant and Michelle McKenzie, his de facto partner and the mother of Koddee. It appears that in the course of that dispute the appellant threw a bread knife at Ms McKenzie, which caused her to be in fear of being hit. It was also alleged that in the course of this incident, the appellant was verbally aggressive towards Ms McKenzie and had threatened to kill her.
Section 58 (1) of the Criminal Law Sentencing Act sets out the orders that the court may make on a breach of bond. Section 58(1)(c) provides that:
… (the court) may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii) if the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, refrain from taking any action in respect of the failure …
The remarks of the learned Magistrate as to this aspect of the matter are also relatively brief, but it is clear from his remarks that he thought that the period of time in custody already served by the appellant provided proper grounds for him to refrain from any further action with respect to the breach of bond.
Mr Katsaras submitted however that the breaching offence was of a different nature from the original offence and therefore should not have been the subject of any penalty and on that basis the breach should have been excused. The time spent in custody should therefore have been used to reduce any penalty imposed with respect to Koddee. I have some difficulty in accepting that submission. The offences which occurred on 3 September 2007, as well as the offence with respect to Koddee, are all episodes of violent behaviour occurring in a domestic setting. They are therefore similar and serious matters. The maximum penalty for the charge of threatening harm, which was the most serious of the three earlier offences is, for a basic offence, imprisonment for a maximum period of five years. Given that the appellant breached his bond about a year after it was imposed, the learned Magistrate was entitled to consider a term of imprisonment to be appropriate with respect to those particular offences. If he had sentenced the appellant for those crimes, the sentence was likely to have been for a much longer period than the period served by the appellant while awaiting resolution of these various matters. Mr Katsaras was however correct in submitting that if the Magistrate had sentenced the appellant to a term of imprisonment, that sentence could not have been commenced any earlier than the date any earlier than the date on which the application for enforcement of the bond breach was laid, that is 4 September 2008.[3]
[3] Police v Saunders (2003) 229 LSJS 97
The approach of the Magistrate
The learned Magistrate however took a practical approach to the question of sentence with respect to the breach of bail offence as well as the bond matter by taking into account the time served and imposing no penalty with respect to the bail offence and finding that there were proper grounds for excusing the breach of bond. On that basis, it was unnecessary for him to have regard to time served when considering the substantive offence, that is the charge against the appellant of applying force to Koddee. The effect of that approach is that the appellant has had the benefit of his bond not being estreated and a period of six weeks being allocated to the three earlier offences as well as the breach of bail which, in my view, can only be described as a merciful result.
As part of his consideration of an appropriate sentence, the learned Magistrate ordered a report from the Northern Violence Intervention Program, to which the appellant had been referred in 2007. Attached to that report were two further reports entitled Risk and Safety Report. Mr Katsaras indicated however that there were some matters therein which were the subject of dispute. In particular, there was a suggestion that the appellant had been violent on other occasions to the children in the home, which was not the case. I consider it unnecessary to go into that aspect of the matter, however, as the learned Magistrate accepted that the appellant did not have any history of assaulting the children. Those reports do however suggest that the appellant has an anger management problem and, as the Magistrate said in his remarks, that was something that the appellant:
… was going to need to continue to work on …
The Magistrate however acknowledged there was an indication that the appellant had already put in some effort in that regard.
In the course of his reasons, the learned Magistrate referred to bruising on the child’s “legs”. Mr Katsaras submitted that the reference to “legs” suggested that the Magistrate had sentenced under the misapprehension that the child had been struck repeatedly, occasioning bruising to both legs, whereas in fact he had been struck once only with bruising to one leg. Mr Katsaras further submitted that the Magistrate had also fallen into error when he said in his remarks that the child was “ultimately treated at the hospital”. This suggested that the Magistrate was under the misapprehension that the bruising was so severe that it required treatment in hospital.
Although a Child Protection Services doctor examined Koddee’s leg when he was conveyed to hospital, it is clear from the police apprehension report that no treatment was administered. In the circumstances, Mr Katsaras argued that the sentence was manifestly excessive as this was a single act of smacking the child as a matter of discipline for misbehaviour. Smacking was the usual way of disciplining children in the household and the appellant had not intended to injure his son. He regretted his actions and had pleaded guilty.
Conclusion
The learned Magistrate understandably took a serious view of the appellant’s assault upon Koddee. This was an assault upon a young child by his parent, which according to the police apprehension report:
… left the child with deep dark bruising in the shape of a hand and three finger marks on his leg.
The matters referred to by Mr Katsaras however support his contention that the learned Magistrate sentenced on an incorrect factual basis. In addition, a starting point of eight months’ imprisonment considered against the statutory maximum of three years appears to be a substantial penalty for an isolated act committed in the circumstances described in the police apprehension report and committed by a person with no prior history of an assault on a child. In the circumstances, I consider that the sentencing discretion has miscarried. As a result, it is appropriate to set aside the sentence imposed for that offence and exercise the sentencing discretion afresh. Although Koddee did not require any medical treatment at the hospital, it is obvious that he suffered a substantial blow from the appellant, given the nature and extent of the bruising which was observed at the hospital a few days later. Further, the appellant is not a first offender as he has a prior conviction for an assault committed in a domestic situation. This was however an isolated incident which occurred when the appellant was endeavouring to discipline his son and was not intended to cause any injury to the child. Nevertheless, the court must make it clear, not only to the appellant but to others who might be like-minded, that violence of any kind to a child will not be tolerated. I therefore consider a sentence of imprisonment is appropriate.
Taking into account all the circumstances of this matter, I consider that an appropriate starting point for the imposition of sentence would be a sentence of four months. I would reduce that by one month to give credit to the appellant for his plea of guilty. That results in a sentence of three months’ imprisonment. In my view, the learned Magistrate appropriately took into account the personal circumstances of the appellant when he exercised his discretion to suspend the sentence of imprisonment. I consider that the terms of the bond imposed by the Magistrate should therefore remain, particularly bearing in mind the evidence as to the appellant’s anger management problems. I therefore allow the appeal. I set aside the sentence imposed by the learned Magistrate and in lieu thereof, I impose a sentence of three months’ imprisonment. That sentence will be suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for a period of two years. The conditions of the bond will be as follows:
1. To be of good behaviour and comply with all of the conditions of this bond.
2. To be under the supervision of a Community Corrections Officer for a period of two years and obey all the lawful directions given by the Community Corrections Officer.
3. To report forthwith to the Courts Unit of the Department of Correctional Services.
4.     To obey all lawful directions given by your Community Corrections Officer, particularly in relation to the following:
4.1    Place of residence, which is to initially be at 129 Somerset Grove, Craigmore.
4.2    Undertaking any counselling for drug issues.
4.3    Undertaking any counselling for anger management issues.
4.4    Undertaking any counselling in relation to domestic violence/family violence issues.
5. During the period of the bond, you are not to attend at any home premises at which the following people may from time to time reside: Michelle McKenzie, Krystahl Tennant, Jayde Tennant, Jazzmine McKenzie or Koddee McKenzie.
6. Not to threaten, harass or intimidate Michelle McKenzie, Krystahl Tennant, Jayde Tennant, Jazzmine McKenzie or Koddee McKenzie.