Knight v Police - [2009] SASC 296

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KNIGHT v POLICE
[2009] SASC 296
Judgment of The Honourable Justice Sulan
18 September 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
Appeal against sentence - appellant released on bail after pleading guilty to assault, failing to provide his name and address to a police officer and aggravated assault of a police officer - appellant pleaded guilty to contravening a condition of his bail agreement through further offending - Magistrate imposed a cumulative sentence of nine months' imprisonment, three months of which was suspended - whether Magistrate had sufficient regard to the appellant's prospects of rehabilitation and other circumstances personal to the appellant which gave good reason to suspend sentence - appeal allowed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, referred to.
R v Proom (2003) 85 SASR 120; Vartzokas v Zanker (1989) 51 SASR 277, considered.

KNIGHT v POLICE
[2009] SASC 296
Magistrates Appeal

SULAN J: The appellant pleaded guilty to assaulting Shirley Ann Burfitt, failing to provide his name and address to a police officer, aggravated assault of Adam John Daviess, a police officer, and resisting a police officer in the execution of his duties. All offences occurred on 11 March 2009 when the appellant went to the home of Ms Burfitt, his mother-in-law, late in the evening. He was arrested and taken into custody. He was released on bail. The conditions of his release included a condition that he be prohibited from consuming alcohol or cannabis during the period of his bail and, further, he have no contact with Shirley Burfitt.
On 8 May 2009, the appellant was arrested by police whilst he was standing at the front door of Ms Burfitt’s home. He was affected by alcohol. He was charged with contravening a condition of his bail agreement. The appellant pleaded guilty to that offence.
On 2 June 2009, the appellant was sentenced to two months’ imprisonment reduced from three months, having regard to his plea of guilty for the offence of assault, four months’ imprisonment reduced from six months, having regard to his plea of guilty for the offence of aggravated assault, and three months’ imprisonment reduced from four months, having regard to his plea of guilty for failing to comply with a bail agreement, each of the sentences to be served cumulatively upon the other. It follows that the total period of imprisonment is nine months. As to the offences of refusing to provide his name and address and resisting police, he was discharged without further penalty.
The Magistrate ordered that the appellant be released after serving six months’ imprisonment upon a bond for a period of three months in the sum of $500, on condition that he be under the supervision of an officer of the Department of Correctional Services, and that he obey the directions of that officer in respect of alcohol abuse.[1]
[1] Section 38(2a) Criminal Law (Sentencing) Act 1988.
The appellant has appealed against the severity of the sentences, and submits that the total sentence should have been suspended.
Background facts
The circumstances of the first incident are that on 11 March 2009 the appellant attended the home of his mother-in-law, Ms Burfitt. The appellant’s wife was at the home. The appellant was severely intoxicated. He shouted that he intended to strangle his wife if he could get in. The police were called. The appellant refused to provide his name and address. He was arrested. As he was being placed in the police vehicle, the appellant kicked out at Constable Daviess, one of the officers who had attended. The appellant struck Constable Daviess in the throat. It was accepted that the appellant did not intend to strike Constable Daviess in the throat, although he intended to kick out at the officer.
Once at the police station, the appellant became aggressive. During the altercation, the appellant sustained a minor head injury. The appellant was granted bail. One of the conditions of his bail was that he not approach his mother-in-law and that he abstain from consuming alcohol or cannabis.
On 8 May 2009, the appellant breached the bail agreement by attending his mother‑in-law’s home. At the time, he was intoxicated and abusive.
The appellant complains that the total sentence was manifestly excessive. His counsel submits that the sentences should have been suspended.
The proceedings before the Magistrate
The appellant tendered two affidavits of Ailyn Rose Libo-on, the solicitor who acted for the appellant before the Magistrate. Ms Lib-On made submissions to the Magistrate. She submitted that the appellant, who is 33 years of age, had been in a strong and stable relationship with his partner for over 12 years. There are three children of the relationship, aged 11, eight and three.
The appellant had been employed for 14 years as a leading hand at Carter Harvey. She submitted that the complainant, Shirley Burfitt, had made a statement that she did not wish the charges against the appellant to proceed. In the statement, she stated:
I, Shirley Burfitt, make a statement wishing for the charges against Dane Knight involving threats to myself be dismissed, Dane is part of my family and I feel that he has made the effort to change his behaviour and generally does the right thing for my daughter and their young children. I believe he made an intoxicated error on March 11 and would not do what he threatened and I believe that he will not repeat this behaviour in the future. Dane had resisted the temptations of alcohol for a few years prior and to my knowledge has stayed sober since that night.
The appellant’s partner provided a statement on 12 March 2009 that she was prepared for the appellant to return to live with her and their children, provided that he was no longer affected by alcohol. The solicitor submitted to the Magistrate that the appellant had pleaded guilty and accepted full responsibility for his actions. She tendered a letter written by the appellant in which he apologised to the police for his conduct. In the letter, he makes reference to the fact that alcohol was the root of his problem and that, although he had abstained from it for a long time, he had reverted to drinking alcohol to excess on these occasions which were the subject of the charges. He advised that he was receiving counselling for his problem, and that he intended to refrain from consuming alcohol in the future. In his letter to Constable Daviess, he expressed regret for his actions and stated that his conduct towards the police was out of character.
The appellant’s solicitor submitted to the Magistrate that the appellant had abstained from drinking alcohol for three years. He had become frustrated about his financial situation when he was pursued for a debt which he considered he had already paid. In his frustration, he purchased alcohol and became intoxicated.
Initially, his partner contacted the police because the appellant was highly intoxicated and aggressive. He was taken to the Mount Gambier Hospital but was released because he was too drunk to be treated. It was unfortunate that he was left to his own devices, as it seems that he was in a mental state which was likely to result in further trouble. He was then taken to a friend’s home where he sobered up. He left his friend’s home and went to a hotel where again he became intoxicated. It was in that state that he attended at Ms Burfitt’s place because he wished to see his children and take them home. When Ms Burfitt refused to allow him to see his children he became angry. That is when the police were called, and when the incident leading to his arrest occurred.
It was put to the Magistrate that the appellant had had a difficult childhood. He was abandoned at the age of 12 but, despite his dysfunctional upbringing, he had managed to form a stable relationship with his partner and their children. He had an excellent work record. However, as a result of his arrest, he lost his job.
It was put to the Magistrate that the circumstances were exceptional and, in turning to alcohol on this occasion, the appellant had lapsed, having abstained from it for approximately three years. It was submitted that this was an appropriate case for the sentence to be suspended. The breach of bail offence was also a result of the appellant becoming intoxicated before attempting to visit his partner at her mother’s home.
The solicitor was handed a statement made by the appellant’s partner, Ms Burfitt, on the day that the appellant appeared in Court. She was unable to tender the statement to the Magistrate because she did not have time to consider it. She did not seek additional time, so the Magistrate was not provided with it.
Counsel for the Crown did not object to the statement being tendered on the appeal. Ms Burfitt confirms that she has been the appellant’s partner for 12 years and that, as a result of his incarceration, she has been placed under enormous financial pressure. Further, the absence of the appellant has caused enormous stress to the children and to her. The statement continues:
Dane has a poor upbringing due to family tragedies, his mum dying at home when he was 11 and his dad remarrying six months later after she died and left Dane homeless when he refused to call his dad’s new wife mum.
We visit Dane twice a week at prison and I see how much clearer he is about his battle with drugs and alcohol. I will help him through this and will attend counselling with him to strengthen our bond to make a new way forward to give our children two stable parents.
Dane is a gentle caring person and we all love him dearly. Dane knows now that in order to give our children a great future we have to give them the best upbringing possible, a safe home.
The time he has had in gaol has allowed him the time apart from us to think about what he wants most in life and that is us his family.
The statement is significant in that Ms Burfitt makes it clear that the appellant is a caring family person who is intent on continuing counselling for his alcohol problems, and that he has her support. That is an important and relevant matter which was not before the Magistrate and which may have influenced his decision when considering the issue of suspending the sentence, as it would have positive effects on his rehabilitation.
The appellant has a history of prior offending, including offences of disorderly behaviour and hindering police in 2005, and two prior convictions for assaulting a police officer. The offending has occurred when the appellant has been under the influence of alcohol. He received a suspended sentence of two months’ imprisonment upon entering into a bond to be of good behaviour for 18 months. The appellant successfully complied with the conditions of that bond. Prior to the offending which is the subject of the present charges, the appellant had refrained from consuming alcohol. The Magistrate observed that the offending occurred when the appellant again succumbed to drinking alcohol to excess. The Magistrate observed:
There is no question about the fact that a term of imprisonment is necessary and warranted. The only question is whether it should be a period of imprisonment that needs to be suspended or whether you should serve the period of imprisonment or a part of it. You have had a suspended sentence of imprisonment in the past and whilst you met your obligation to be of good behaviour or put it another way didn’t reoffend during that period of time you have reoffended again. Whilst you had a suspended sentence in the past it doesn’t mean that you are not entitled if the circumstances are right to be considered appropriate again.
I have been asked to accept that you pleaded guilty, accepted responsibility and extended written apologies to the police. Regrettably the apology to the police officer who was kicked in the throat was less than fulsome. Advancing that the kick was merely an unfortunate accident which was not the case. I doubt that the police officer found that very [sic] satisfying apology but in any event his satisfaction or otherwise is not to the point. This was a serious offence. You have a history of assault. It was a deliberate kick in circumstances where it was entirely foreseeable that would [sic] have struck the police officer somewhere and probably and potentially in the upper body and head. You intended to kick out at the police officer. I will accept that you didn’t aim your blow at his throat. Your counsel has put it to me repeatedly, and I accept that [sic] but that is where in fact you struck him. You refused to give your name by reason of your belligerent attitude and the fact you took the view they knew your name anyway so you didn’t have to.
The Magistrate considered whether to suspend the sentence. He said:
The question is now whether I should suspend either in whole or in part. You have been in custody since the 8 May by reason of the provision of the Bail Act that you should not be released on bail unless special circumstances exist and none existed. You have been in custody since then or at least you were arrested on the 8 May and you have been in custody by way of the court refusing your bail since the 11 May. I think it appropriate to impose any period of imprisonment to commence on the 8 May 09. I do not see any reason to suspend this period of imprisonment in whole. I can see a need to strike a balance between the imprisonment and the potential for rehabilitation. I can also see that you have demonstrated an ability to rehabilitate yourself in terms of alcohol consumption for a period of times [sic] since the 3 years prior to this offending.
I think the factor of rehabilitation, the fact that you have to continue to have contact with this family and the children of it that rehabilitation forms part of a significant part of my consideration.
The order of the court will be that you will be imprisoned for 6 months to commence on 8 May 2009, 3 months will be suspended by you entering into a bond in the sum of $500 to be of good behaviour of 3 months. You are to be under the supervision of the officer of a Department of Correctional Services for a period of [sic] 3 months. You are to report to them on release. You are to obey their directions and in particular you are to obey their directions with respect to alcohol abuse.
In sentencing the appellant, the Magistrate indicated that he did not consider the fact of the appellant’s intoxication was at all relevant in terms of reducing the penalty that the appellant should receive. He did, however, indicate that he saw the issue of alcohol as of some importance in terms of potential rehabilitation. He acknowledged that there was support in the community, and from professional counsellors who could assist the appellant with his alcohol problem.
Counsels’ submissions
Counsel for the appellant submits that the Magistrate failed to give sufficient weight to the prospects of rehabilitation. In particular, he referred to the fact that the appellant had complied with the conditions of a previous suspended sentence. This is the first occasion that he had received an immediate custodial sentence. Counsel submits that the appellant had not offended for three years prior to this offending and that the prospects of him re-offending were slight, given his preparedness to abstain from alcohol and undertake counselling. Furthermore, he has the support of his family. Counsel observes that the Magistrate had remarked that the appellant had demonstrated a capacity to rehabilitate himself in terms of his alcohol consumption. Counsel submits that the Magistrate had given insufficient weight to the appellant’s prospects of rehabilitation.
Counsel for the Crown concedes that the overall sentence was at the higher end of the scale, but submits that the sentence is within the range for sentences for these offences. As to the decision of the Magistrate to partially suspend the sentence, counsel submits that the Magistrate took into account that, because the overall sentence was less than 12 months, he could not impose a non‑parole period. Therefore, he struck a balance between the appellant having to serve the total sentence of nine months and partially suspending the sentence. Counsel submits that it has not been demonstrated that the Magistrate’s discretion has miscarried.
Discussion
The total sentence of nine months’ imprisonment was high, having regard to the circumstances of the offending and the personal circumstances of the appellant. As to the offences committed on 11 March 2009, it would have been preferable if the Magistrate had passed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. However, it was within the Magistrate’s discretion to adopt the approach which he chose. The sentences individual, or in total, are not manifestly excessive.
The decision whether or not to suspend a sentence is often a difficult one. Whether good reason exists to suspend a sentence requires the balancing of a number of competing factors. Courts are required to have regard to personal and general deterrence. They must also have regard to the prospects of rehabilitation. In circumstances where the underlying cause of the offending can be addressed, immediate imprisonment may impede the process of rehabilitation, due to the limited programs available to persons in custody.
In this case, a primary underlying cause of the appellant’s offending was his addiction to alcohol and his intoxication on each occasion.
The appellant had made significant advances in dealing with his addiction but reverted to alcohol when he became stressed when being pursued for a debt for which he considered he was not liable. As with any addiction, there are likely to be occasions when a person who has successfully abstained from alcohol or drugs will lapse because of a stressor in their life.
When considering a person’s addiction, the remarks of Doyle CJ in R v Proom,[2] are apposite. He said in relation to a person’s drug addiction, in respect of a defendant who had committed a large number of property and dishonesty offences:[3]
I refrain from attempting a global summary of the correct approach, because such an exercise would either be misleadingly brief and general, or unduly lengthy. I merely make these brief points, emphasising that I select them because of their relevance to the present case, and not because they are a summary of the overall position. Addiction to drugs, when it leads to crime, is not an excuse for the purposes of sentencing. Nor is addiction of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. Nevertheless, addiction may be a relevant circumstance. It might explain that the offender is not a professional criminal, or did not make a calculated decision to offend. Addiction will often be relevant to prospects of rehabilitation, but might indicate that those prospects are not good. In the end, if addiction is of any significance, it is to be considered in the context of all of the circumstances of the case. [underlining is mine]
[2] (2003) 85 SASR 120.
[3] Ibid, 129 [43] – [44].

The authorities suggest that a sentencing court does not treat a person’s alcohol or drug addiction in isolation from other circumstances relating to that person’s offending. Each case will vary according to its circumstances. In considering whether good reason exists to suspend a sentence, a person’s dependence on alcohol or drugs will be relevant.
In Vartzokas v Zanker,[4] the Court discussed the object that rehabilitation has in considering an appropriate sentence. King CJ said:[5]
Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community.
[4] (1989) 51 SASR 277.
[5] Ibid, 279.
There are some cases where an addiction might diminish the individual’s moral culpability. Repeated offending by a person with a drug or alcohol addiction may result in that person not being a satisfactory candidate to receive a suspended sentence, simply because of the repeated offending and because of their pattern of conduct. In cases where the court is of the view that a person’s addiction is unlikely to be broken and, therefore, they will continue to offend, there will be little basis for good reason to exist to suspend a sentence by reference to that person’s prospects of rehabilitation. On the other hand, where a court is of the view that a person’s addiction is treatable and, with adequate management, the person is likely to manage their addiction, then the prospects of rehabilitation become a more relevant factor in determining the ultimate sentence.
The appellant had, in the past, managed to control his alcohol problem. The Magistrate determined to suspend part of the appellant’s sentence and, given his remarks, it appears that the Magistrate considered the appellant had reasonable prospects for rehabilitation.
In addition to the appellant having demonstrated that he can abstain from alcohol, which is a significant underlying factor for his offending, he has the support of his family. I consider that the Magistrate did not give sufficient consideration to positive personal factors, including family stability, which would assist the appellant in his rehabilitation. The appellant’s wife and his family are very supportive. She is confident that, with adequate counselling, he will overcome his problems with alcohol. The Magistrate did not have the advantage of the indication of support the appellant had received from his wife.
In my view, the Magistrate’s discretion miscarried. Having accepted that the appellant had good potential for rehabilitation, and the fact that the appellant had the support of his family, the Magistrate should have found good reason to suspend the sentence. The decision to suspend part of the sentence for three months did not give adequate weight to the need for the appellant to be under supervision for a lengthy period in order for him to undertake supervised treatment. I am reinforced in my opinion by the statement of support from the appellant’s wife. I acknowledge the Magistrate had not been provided with that letter.
In all the circumstances, and if adequately supervised, the appellant has good prospects of rehabilitation. In my opinion, good reason exists to suspend the sentence. The appellant will be assisted if he agrees to enter into a bond for a significant period, during which time he is to undertake treatment and counselling to overcome his addiction to alcohol.
I allow the appeal. In re-sentencing the appellant, I take into account that he has spent nearly five months in custody. Pursuant to s 18A, I impose one sentence of four months’ imprisonment for the offences of assaulting Shirley Ann Burfitt, aggravated assault of Adam John Daviess, a police officer, and failing to comply with a bail agreement, the sentence to be suspended upon the appellant agreeing to enter into a bond in the sum of $500 to be of good behaviour for 12 months and, during that period, to be under the supervision of a Community Corrections Officer and to undertake such counselling and treatment for alcoholism, as recommended by his Community Corrections Officer.
As to the offences of failing to provide his name and address to a police officer and resisting a police officer in the execution of his duty, a conviction is recorded without penalty.