Koko v Police No. Scgrg-97-1174 Judgment No. S6357

[1997] SASC 6357

THURSDAY, 4 SEPTEMBER 1997

KOKO v  POLICE
Magistrates Appeal
Prior J
         This is an appeal against a sentence for an admitted offence of assault occasioning actual bodily harm.  The offence was committed at Port Augusta on 13 November 1996 upon the applicant's tribal wife.
The matter first came before the court on 2 January 1997.  The appellant failed to appear on 10 February.  A warrant of apprehension was issued.  The appellant was remanded in custody from 4 April 1997 until his ultimate sentence on 21 July.  A plea of guilty was entered by the appellant on 10 April, but recalled after the appellant's solicitor said she had misunderstood instructions.
An application for bail on 22 April was refused. Anapplication was made under s21 of the Evidence Act 1929 by the victim to be exempted from the obligation to give evidence against the appellant on the ground that serious harm to the relationship between her and the appellant would result if she were to give evidence. That application also failed.
The appellant pleaded guilty again on 22 May.  The magistrate adjourned the matter to 16 June to enable a pre-sentence report to be prepared. There was a further adjournment on that date to enable a further pre-sentence report to be prepared against concerns raised by the appellant's legal representative about things said in the first report.
On 21 July, the magistrate made some notes.  At the end of the notes the magistrate indicated that he accepted the statement of the appellant's counsel as endorsed by him relevant to the appellant's personal circumstances.  Amongst those things particularly noted, and apparently accepted by the magistrate, was that the appellant was of the view that he was well motivated to rehabilitation, particularly if he could remain at Lipsey Whiskey's camp, because that is a dry camp.  The magistrate added that he accepted the appellant was well motivated in terms of cooperation, and that it was clear from the updated report, received from the probation officer, "that substantially it is a question of difference in perception of individual matters".
The magistrate was given the prosecution's version of events. That was that the appellant hit the victim with a brick for no reason, causing her head to bleed.  Both parties were said by the prosecution to have been moderately affected by liquor at that time.  The appellant's counsel admitted that the appellant was affected by liquor, but told the magistrate that the victim was not affected by liquor, and, indeed, did not drink.
A long list of antecedents was tendered.  It included convictions for common assault and property damage.  It was a long list.  The most recent assault offences were dealt with in the Magistrates Court at Port Augusta in May 1996. On that occasion two offences of assault attracted a sentence of imprisonment totalling two months and two weeks.  Some earlier appearances before courts for similar offences had attracted non-custodial sentences or orders.  In the District Court in January 1991, the appellant received a sentence of sixteen months imprisonment for assaulting police.  He had also served time in custody with respect to damaging property and failing to comply with a bail agreement in 1991.  In November 1990 he was imprisoned for a month for common assault.  Property offences in 1988 and 1986 were dealt with without proceeding to conviction.  A similar offence committed in 1989 attracted one months imprisonment being suspended upon the appellant entering a bond to be of good behaviour for nine months.
When the appellant's counsel made submissions she informed the magistrate that the victim had expressed a desire to discontinue the prosecution, and that the appellant was keen to rehabilitate himself by staying and working at Whiskey's camp.  Mustering work was available there.  Reference was made to the fact the appellant had been in custody since 4 April.  The magistrate was asked to have any period of imprisonment imposed to commence from that date. The prosecutor then disputed counsel's submission as to the appellant's expressed desire to rehabilitate himself given his extensive history.  He spoke of "offences as recent as February of this year".  It is not plain what the prosecutor meant by that.  Counsel for the respondent could not help.  The offender history report simply refers to a warrant of apprehension having been issued with respect to this charge on 10 February 1997.  The explanation for that non-appearance is not before this court, nor could counsel advance any adverse circumstances that might explain what was otherwise an inappropriate remark of the prosecutor.
The magistrate was brief in his sentencing remarks.  He referred to the appellant having a very long history of offending and a number of prior convictions for assault.  He said that alcohol had clearly played a significant part in those offences.  The magistrate told the appellant that he had ignored previous warnings, so that there was only one option, that of a lengthy period of imprisonment.  The magistrate said that time and again the appellant had been told that he must not assault people, and that he had ignored that advice.
The antecedent report suggests that the number of occasions that may have attracted a warning would have been but seven from 1989 when the appellant was first convicted of assault.
The magistrate imposed a sentence of 10 months imprisonment. He said that he had taken into account the time the appellant had spent in custody from 4 April.  The effect of the sentence was that the appellant was to be in custody for 13 and a half months.
In this appeal it is said that the sentence imposed is manifestly excessive.  It is also said the magistrate erred in not commencing the sentence of imprisonment from the date when the appellant was first in custody for this offence.  Section30 of the Criminal Law. (Sentencing) Act 1988 permitted the magistrate to do what he did.  The sentence imposed was the equivalent of thirteen-and-a-half months imprisonment.  Had such a sentence been imposed from the date when the appellant was taken into custody a non-parole period would have been required to be fixed.  That acknowledged, it does not establish error in what the magistrate did even if the alternative course seems the more obvious in a case like this.
A third ground of appeal was that the magistrate did not take into account at all, or sufficiently, the appellant's personal circumstances when sentencing him.  It is also said that the magistrate erred in not placing weight on the appellant's prospects of rehabilitation against his working prospects, and his reconciliation with the victim. The magistrate did not say whether he made any allowance for the plea of guilty.  I doubt that he made any allowance at all.  I think those complaints are well made out. 
This was not an easy case.  It is easy to be wise after the event.  The sentencing process may have miscarried as a result of the differences resulting from arguments over things mentioned in the pre-sentence report. Equally, it was unfortunate that the prosecutor saw fit to emphasise, after submissions made on behalf of the appellant, that there was further offending, when the only misbehaviour was a failure to appear.  That could have been explained to the magistrate.  A court cannot speculate adversely to a person then before it.
In my view, the magistrate paid too much regard to the appellant's antecedent reports, and insufficient regard to the plea of guilty, the injury actually sustained, the attitude of the victim, and the plans for the future. The sentence imposed by the magistrate was not appropriate. The punishment did not fit the crime nor the circumstances of the offender: Webb v O’Sullivan (1952) SASR 65 at 66

I allow the appeal and substitute a sentence of six months to date from when the appellant was taken into custody on 4 April 1997.