L v Police

L v POLICE
[1998] SASC 6821

Magistrates Appeal
Bleby J

The appellant, a 17 year old youth, appeals against the finding of guilt made against him and against the penalty imposed. He was found guilty after a trial in the Youth Court of having assaulted a female Field Officer employed with the Department of Social Security, contrary to s39(1) of the Criminal Law Consolidation Act 1935. The offence was said to have occurred on 30 June 1997 at a place where the appellant was then living. He was convicted and sentenced by the magistrate who heard the proceedings to a period of six months detention, which was suspended upon his entering into a bond to be of good behaviour for a period of eighteen months. There were other conditions of the bond to which I will refer when dealing with the question of penalty.
All matters seem to have been placed in issue at the trial. Principal among these was the identity of the person who committed the assault on the victim. The appellant did not give evidence. The magistrate accepted the evidence of the victim as to the circumstances of the assault and as to the description which she gave of her assailant. She was asked whether she would recognise the person she described as a young man if she saw him again. She said: “Possibly. Given the length of time that has passed since that date I can’t be 100% sure.” She was giving evidence a little over 11 months after the events in question.
In the light of the answer to which I have just referred, she was very properly not asked to nor did she attempt to give a dock identification of the accused. By refreshing her memory from what she had told the police officer at the time she described her assailant as having “dark hair, about my height - I’m about 5’6” so he would have been about the same height, probably 5’7” or 5’5”, I’m not really sure. I believe at the time he was wearing dark coloured clothing. A fairly thin person, certainly not what I would describe as fat or obese, just a normal, average teenage type youth”. She described him as being “somewhere about 18 to 20” years of age. She was asked without objection:
“Q.... Does that description fit the person in court today?
A. I believe so.”
In cross-examination she was asked to estimate the height of defence counsel. She answered “Possibly 5’10””. She then accepted that counsel was in fact six feet and half an inch tall and that the accused was taller than he was by a couple of inches. She agreed that the accused was possibly five to six inches taller than the description of the person she had previously given.
When dealing with the question of identification, the magistrate reminded himself of the need for caution in dealing with evidence of identification. He concluded that the victim had “proceeded with all appropriate care on this issue”. He referred to a number of cases dealing with identification evidence and the need to subject the evidence of witnesses on identification to careful scrutiny. He then said:
“In carefully coming to my findings on the issue of identification I have reminded myself apart from (the victim’s) caution during all her evidence it was clear, and I so find, that she had the opportunity to see the defendant not only at the door when he first appeared but on a subsequent occasion when he reappeared with a knife and during the time when he followed her down the driveway until she left the property. In short, this was not a fleeting glance of the defendant, but observations made over an extended period of time that have encouraged me to make my finding beyond reasonable doubt that the defendant was the male person who produced the knife and made threatening remarks to the victim at (the address in question). Her evidence was not merely a dock identification of the defendant as the person who used threatening words and assaulted her.”
Later in his reasons he said:
“I find that there is nothing in (the victim’s) answers in cross‑examination that cause me to qualify my findings about her evidence and in particular, identification of the defendant and the defendant’s conduct in pursuing the victim from the front door down the driveway of (the house in question).”
He then referred briefly to the evidence of other witnesses, Ms Finn, Mr Ormond and Mr Hollobone, to whose evidence I will need to refer in due course, and at the conclusion of his reasons said:
“However, I must make it clear that I am relying substantially on the quality of the victim’s evidence and her identification of the defendant to find the charge proved. The evidence of Finn, Ormond and Hollobone add very little weight in my assessment to the success of the prosecution case. Moreover, I repeat, that I have respected the defendant’s right to remain silent and that the police carry the onus of proof at all times, and that is proof beyond reasonable doubt.”
The magistrate therefore seems to have proceeded largely on what he considered to be the victim’s evidence of identification of the defendant. The sole grounds of appeal relating to the finding of guilt are that:

1...... The magistrate erred in finding that the victim had identified the appellant as the person who had assaulted her;

The consequential finding of guilt beyond reasonable doubt was unsafe and unsatisfactory and against the weight of the evidence.

If the victim’s evidence were the only evidence of identity, that ground of appeal would almost certainly succeed. Her evidence alone was quite insufficient to identify the accused as her assailant beyond reasonable doubt. The appellant argued that the magistrate only had regard to the evidence of the victim in finding the identity proved. He certainly gave great weight to that evidence and considered that the evidence of the other witnesses added very little weight to the success of the prosecution case. Unless that remark were directed to proof of the circumstances of the assault, it is perhaps a strange and rather inconsistent observation. When dealing with Ms Finn’s evidence the magistrate observed that “the spontaneity of the defendant’s utterances are highly relevant and admissible evidence”. Ms Finn’s evidence included evidence of similar spontaneous utterances from a telephone caller who identified himself to her as the appellant. The magistrate further regarded her evidence as “relevant and admissible”. He summarised the effect of the evidence of the other two witnesses without comment.
Notwithstanding the magistrate’s remark about the weight of the evidence of those three witnesses, he must have given that evidence some weight, for as will be seen from the nature of their evidence, the only purpose for which they could have been called was to give evidence material to the identity of the assailant. However, if I assumed that the magistrate did reach his conclusion as to the identity of the assailant largely by reference to the victim’s evidence and that he was wrong in doing so, that does not necessarily dispose of the appeal. The allegation is that the verdict was unsafe and unsatisfactory.
There are many reasons why a verdict might be said to be unsafe or unsatisfactory. In this case, however, it could only be on the footing that the verdict could not be supported by the evidence. In R v Shueard (1972) 4 SASR 36 at 39 the Full Court of this Court said:
“To establish that a verdict is unreasonable or that it cannot be supported having regard to the evidence, it is not enough merely to show that the evidence given at the trial is open to criticism. If there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt (R v Jansen [1970] SASR 531). In order that the appeal should succeed on this ground the verdict must be such that no reasonable jury could properly have returned it upon the evidence given.”
I consider that I should take a similar approach when considering the verdict of a magistrate as the fact finder, even though the reason he gives for reaching a particular conclusion may be inadequate. Kirby J in Cutter v The Queen (1997) 71 ALJR 638 at 648 considered that the same principles apply to a verdict of a judge sitting alone save for the modification that, in a trial by judge alone, the appellate court will have the reasons of the judge, absent when the trial is by jury.
Another way of stating the question is that I must look to whether a finding of guilt beyond reasonable doubt was the only inference which could rationally be drawn from the circumstances, if the magistrate had properly directed himself on the law; cf R v Tamblyn [1967] SASR 140. See also Knight v The Queen (1992) 175 CLR 495 at 502‑503. In respect of any evidence which is in dispute I will only be able to do this if the magistrate has made appropriate findings of fact. Where the evidence is not in dispute, even though no formal findings of fact based on it may have been made by the magistrate, I am able to have regard to that evidence.
Rather than relying just on the victim’s evidence, the prosecution case on identity relied on a body of circumstantial evidence. From the victim there was the general description of the assailant to which I have referred which, apart from her estimate of his height, seems to have accorded generally with the description of the appellant at the trial. There was the address at which she said the incident occurred and the time at which it occurred (about 12.30pm). She had told her assailant, who was in the house at the time, who she was looking for - a woman with the same surname as the appellant. The assailant had threatened her with a knife. The victim had said that during the course of the encounter her assailant had said something along the lines “Who the fuck are you?” or “Who the hell are you?”, “I don’t like people coming to see me unless I know who they are and why they are coming”. After she had said who she was and produced her identification he said: “Haven’t they told you, I kill people, especially government workers” or words to that effect. Later, in cross‑examination, she said that shortly before she left, her assailant had said: “I will call the fucking cops, I will call the social workers, you have no fucking right to be here”. As will be seen, the words used by the assailant were significant, as was the implication from what he said that he lived at the premises.
The magistrate found that the victim had given her evidence honestly and accurately, and that it was given with “care and caution”, although she was in error in her assessment of the height of her attacker. Subject to this, her evidence was accepted in its entirety by the magistrate.
Ms Finn was a social worker employed at the office of Centrelink located in the suburb where the incident occurred. Her evidence was uncontested. At a time which she placed at about 12.15pm she took a telephone call from a young man who, when asked, identified himself as the appellant. The caller was angry and yelling abuse and said among other things: “You fucking sent this woman around to see my mother and my mother doesn’t fucking live here”. He identified the place from which he was calling and gave the same address as that at which the incident had occurred. Her evidence was that the caller said: “I should tell that fucking woman not to come back again, he would kill her, that she knew that he had a knife and that he would fucking use it and that if we didn’t keep this woman away he would send - he and his friends would come around to our office and... turn it upside down. He also said that he hates Government Departments and that we should know that he hated (this) office in particular”. Despite her estimate of the time at which this conversation occurred, Ms Finn said that immediately after she had hung up from the phone call, the victim came into the office apparently distressed. She also gave evidence that the appellant was a recipient of Social Security payments, and that at the time his address in Centrelink records was the same as that at which the incident had occurred.
Mr Ormond was employed at the same Centrelink office. On the same day at “around lunchtime” the accused, whom he already knew, came into the office. The accused was angry and was shouting and climbed over a desk. Ormond arranged for him to be seen by a Mr Hollobone.
Mr Hollobone gave evidence that on the same day prior to 1.00pm, which was when he went to lunch, he saw the accused come into the office and he appeared to be irate and went behind the counter. He subsequently had a conversation with the accused during which “he stated that someone from the department had called around looking for his mother and that we had better not do it again otherwise him and his mates will fix us up. Him and his mates hate government departments and we had better not get in contact with him again otherwise he will fix us up”.
Mr Ormond also gave evidence that the accused had come into the office on other occasions subsequent to the day in question. Evidence as to these visits was allowed to be given over objection of counsel for the defence, the magistrate expressing the view at the time that the evidence was admissible and it was only a question of the weight that he would give it. He obviously gave it little if any weight because in his reasons for judgment the magistrate said that he excluded it from his consideration as being “too remote and prejudicial”. It was nevertheless relevant on the question of identity. On the first occasion the appellant came into the office saying that he wanted to see “the lady”, by which Ormond assumed that he meant the victim. He explained that she no longer worked at that office. The accused nevertheless said he wanted to see her and words to the effect “If she comes back I’ll cut her up”. On the second occasion he again asked to talk to the lady involved in the incident. It was again explained by Mr Ormond that she did not work there, whereupon the accused said “I just wanted to talk to her, to sit down and talk things out with her”, the accused on this occasion apparently seeking some sort of reconciliation.
All that circumstantial evidence was either accepted by the magistrate (in the case of the victim) or was unchallenged and apparently credible. Mr Mead, for the appellant, argued that a number of the incidents deposed to were equally consistent with some other hypothesis. That may be so, if the incident is taken alone. No one piece of evidence, standing alone, would have been sufficient to convict the appellant. However, the combined force of all the circumstantial evidence presented a particularly strong case as to the identity of the attacker. In particular there was the connection of the address, the timing of the various discussions on 30 June, the nature of the language used by both the assailant and the accused and the threats that he made to return with his mates if he was visited again. There was the reference by the person who spoke on the telephone to the fact that the person who had called at the caller’s address knew he had a knife; and there were the statements by the accused that it was he that would kill the visitor if she returned, repeated by the accused on several occasions. In my opinion, no reasonable jury or magistrate could have considered that there was a hypothesis consistent with innocence.
It was also argued that the reference in the Finn and Hollobone conversations to the accused and his friends or mates threatening to return allowed for the possibility that other young males were at the premises during the assault, and that it could have been one of them, rather than the accused who committed the offence. However, although the victim at one stage may have inferred that a party was going on when she called, there was no evidence that any male person other than the attacker was at the premises at the time. Her evidence on that topic was as follows:
“Q.... You have told us about approaching the door of the premises and you could hear loud music. Could you hear voices as well.
A.No, I couldn’t hear any voices. It sounded like there was a party going on or something like that.
Q...... The party sound, was that of what, loud music and different noises. What made you feel there was a party going on.
A.Well, just loud music. I guess I just assumed it was a party, it was pretty much lunch time.
...
Q.When you got to the front door of the premises, did you hear any other conversation from inside the house.
A...... No, not at all.”

There was no other evidence that anyone else at all was on the premises at the time.

The evidence of the victim regarding the height of her attacker was relied on also as allowing sufficient doubt to justify an acquittal. However, she was shown to be a poor estimator of height anyway by her erroneous under‑estimate of the height of defence counsel. That was consistent with her under‑estimating the height of the attacker. Furthermore, it must be remembered that the appellant was aged 16 at the date of the alleged offence. The height comparison was made more than 11 months later. It would not be surprising if a 16 year old male had grown during that period. In any event, the magistrate was entitled to reject her estimate of height as being erroneous, and having done so he was left with extensive circumstantial evidence which together pointed to the accused as being the assailant. In my opinion, the appeal against the finding of guilt should be dismissed.
In order to deal with the appeal against penalty it is necessary to say a little more about the circumstances of the assault. The victim, a field officer employed by Centrelink, had gone to the address to speak to the appellant’s mother. The front door of the house had an external screen door and a glass‑panelled main door, behind which was hung a curtain. The appellant first answered the door from behind the closed main door by pulling back the curtain. When he returned with the knife and the victim had identified herself, the first abusive conversation occurred, and the appellant opened the door as he spoke about killing government workers. He kept moving towards her. She was frightened and retreated, apologising for having inconvenienced him, and the other conversations occurred while she was retreating. He followed her into the driveway of the house holding the knife in front of him. The victim suffered no physical injury and there was no attempt by the accused to make bodily contact with her other than by his moving towards her as she retreated. The incident nevertheless caused great distress and anxiety to the victim.
Upon suspending the six months sentence of detention, the conditions of the obligation imposed by the magistrate were that he be of good behaviour for a period of 18 calendar months, that he perform 180 hours of community service within a period of six months, that he be under the supervision of an officer of the Department of Human Services and obey the lawful directions of his supervising officer, and that he attend programmes and projects as directed, and in particular for anger management and how to get along with people.
The ground of appeal on sentence is that the penalty imposed was manifestly excessive. The appellant did not argue that a conviction should not be recorded (see s21, Young Offenders Act 1993) but that the sentence of detention, albeit suspended, was excessive.
The appellant was aged 16 at the date of the offence. He had no prior offending history, but for a number of years he had exhibited behaviour problems both at home and at school. He is illiterate, and lives with his mother at the address at which the offence took place. He receives a disability pension, apparently on the basis of his illiteracy and impulse control disorder. His behavioural problems were well‑known to officers of the Department of Social Security, and they had arrangements in place to avoid him having to complete reports and forms, thereby minimising occasions on which he might display impatience or aggression to officers of the department.

The magistrate had before him a report from Dr P A Brock, a senior consultant psychiatrist with the Forensic Psychiatry Unit and Adolescent Outreach Service Division of the Community and Mental Health Service. That report had been prepared in order to determine whether the appellant was fit to plead to the complaint. It was not directed specifically to any possible sentencing options. From that report it is clear that the appellant does not suffer from a psychiatric disease but has a disorganised, dissocial personality structure. He has been exposed to family violence and has not been exposed to normal social skill training. He has developed a personality which is intensely loyal to close family and friends, and hostile and oppositional to those in authority. Dr Brock considered that he had belief system that he can ignore certain rules when it suits him and impose his will by force. He concluded: “Further confrontation with the court’s authority is likely to exacerbate his anger and hostility”.
In his remarks as to penalty, the magistrate concentrated on the effect of the assault on the victim and the seriousness of the appellant’s behaviour. It seems reasonably clear from the remarks that although he recognised this as a first offence, the magistrate was concerned about the nature of the behaviour and intended to impose a penalty designed to deter future offending on the part of the appellant.
Section 3 of the Young Offenders Act 1993 provides:
“3 (1) The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.
(2) The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:
(a).... a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
(b)    (Repealed)
(c)... the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a) In imposing sanctions on a youth for illegal conduct -
(a).... regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b)    if the sanctions are imposed by a court on a youth who is being dealt with as an adult, regard should also be had to the deterrent effect any proposed sanction may have on other youths.
(3) Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a).... compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b)    family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;
(c)... a youth should not be withdrawn unnecessarily from the youth’s family environment;
(d)    there should be no unnecessary interruption of a youth’s education or employment;
(e)... a youth’s sense of racial, ethnic or cultural identity should not be impaired.”
The Act contains a wide range of methods of dealing with young offenders not available to courts in respect of adult offenders. In particular, it provides for a scheme of informal cautions (s6), formal cautions (s8) and family conferences (ss9-12). It is not possible for a court to sentence a youth to imprisonment (s23), and sentences of detention may include detention either in a training centre or at home (s23). A court may not require a youth to enter into a bond, but may impose an obligation of a kind that might otherwise be imposed under a bond (s26).
Hallam v O’Dea (1979) 22 SASR 133 was decided by the Full Court soon after the enactment of the Children’s Protection and Young Offenders Act 1979. In that case the Court referred to the earlier observations of King CJ in R v Homer (1976) 13 SASR 377 at 382-383 to the effect that under the former Juvenile Courts Act there was provided a non-punitive treatment system for young offenders and that a child was not to be removed from his family except in circumstances where it was necessary in the public interest or for the protection of the child. Under that Act the Court was to try to find out what was the best means of turning a delinquent juvenile into a responsible law‑abiding adult. The Court in Hallam v O’Dea considered that those remarks applied with equal force to s7 of the Children’s Protection and Young Offenders Act 1979 which read as follows:
“7. In any proceedings under this Act, any court, panel or other body or person, in the exercise of its or his powers in relation to the child the subject of the proceedings, shall seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and to his development into a responsible and useful member of the community and, in so doing, shall consider the following factors:
(a)... the need to preserve and strengthen the relationship between the child and his parents and other members of his family;
(b)    the desirability of leaving the child within his own home;
(c).... the desirability of allowing the education or employment of the child to continue without interruption;
(d)    where appropriate, the need to ensure that the child is aware that he must bear responsibility for any action of his against the law;
and
(e)    where appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.”
There are obvious similarities with s3 of the present Act. If anything, there is now less emphasis on control and, with a greater range of options, greater emphasis on care, correction and guidance and development of offenders as responsible members of the community, and the proper realisation of their potential. The former Chief Justice said in Hallam v O’Dea (supra) at pp136‑137.
“The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender. In the case of an adult offender, the starting point will generally be the observance of a proper proportion between the gravity of the crime and the severity of the punishment. This fundamental principle of adult sentencing obviously has no place in fixing the period of detention under the Children’s Protection and Young Offenders Act, even where the protection of the community becomes the dominant consideration...
...
The Act prescribes methods of dealing with juvenile offenders which differ radically in nature and object from the methods used in relation to adult offenders. It would be meaningless to ask what sentence of imprisonment would be appropriate to a seventeen year old who is within the purview of the young offenders legislation, if he were not a seventeen year old but an eighteen year old adult subject to the ordinary sanctions of the criminal law.”
Those observations are equally applicable to the approach to sentencing under the Young Offenders Act 1993. King CJ went on to say in Hallam v O’Dea (at p137) that it “would be quite wrong, in my opinion, for a judge in the Children’s Court to treat detention as other than the last resort to be resorted to only when satisfied that the other available options do not meet the case”. I agree with that observation.
The approach of the sentencing magistrate in this case, however, appears to have been to put a custodial sentence at the forefront of the sentencing options for reasons of the gravity of the crime and personal deterrence. No consideration seems to have been given to the requirements of s3 of the Act or to the approach taken by this Court in Hallam v O’Dea (supra). Particularly in view of the fact that this was a first offence, those options should have been explored, rather than resorting immediately to what should have been the last resort. Furthermore, the advice of Dr Brock would suggest that if the sentence is required to be served, the appellant’s anger and hostility will only be exacerbated. In my opinion the circumstances facing the magistrate cried out for alternative non‑threatening means of directing the appellant towards life as a responsible law‑abiding adult. In my opinion the magistrate was in error in imposing a custodial sentence even though it was suspended. It was proper to impose the obligation which the magistrate imposed, for breach of which there is a maximum penalty of $2,500 or detention for six months or both (Young Offenders Act 1993, s26(4)). Means are therefore still available to deal with breach of the obligation in a manner which best befits the circumstances at the time, rather than what may turn out to be a mandatory requirement to serve the sentence imposed.
I therefore propose to vary the sentence by setting aside the order for six months detention. However, I also propose to add one further condition to the obligation imposed by the magistrate relating to the assessment and treatment of his behaviour problems. It seems to me that the obligation imposed failed properly to address the problems highlighted in the report of Dr Brock. The condition I propose will require the cooperation of his supervising officer, and I trust that will be forthcoming as soon as reasonably practicable.
Accordingly, the orders of the Court are as follows:

1...... Appeal against conviction dismissed.

Appeal against sentence allowed.

Set aside the order for detention made in the Youth Court on 24 June 1998.

Confirm the order imposing the obligation on the appellant but with the following additional condition:

(6)... By arrangements made through his supervising officer, to attend for assessment at the Management Assessment Panel for Behaviourally Disordered Persons, to cooperate in any such assessment and to comply with any recommendations made by that panel.

I publish separately to the parties only a document containing the conditions of the obligation as now amended.

[1998] SASC 6821

27 August 1998