Landers v Police

LANDERS v POLICE
[2002] SASC 185
Magistrates Appeal
(ex tempore)

GRAY J This is an appeal against a sentence imposed by a magistrate.
Background
The appellant, Graham John Landers, was charged with assault occasioning actual bodily harm.[1] He pleaded guilty on 20 March 2002 in the Adelaide Magistrate’s Court.
[1] The complaint was in the following terms:
At about 10.15pm on Friday 28 September 2001, the appellant and the victim were arguing in a hotel car park. The appellant was drunk and during the course of the argument, he punched the victim in the face. The blow damaged several teeth. Following the incident, they walked off together, still arguing.
Police attended and located the victim lying in the centre of the road with the appellant standing over her. The victim was unconscious and had difficulty breathing. She was conveyed to hospital by ambulance.
The appellant had been in a de-facto relationship with the victim for two years prior to the offence. At times the relationship was acrimonious. On two occasions the victim was said to have stabbed the appellant in the arms and the chest. Violent arguments would frequently occur, particularly during times when they were affected by alcohol.
The appellant was subsequently arrested. He was interviewed by the police. He told them that he had been drinking at the Playford Tavern with his nephew and that he had met the victim in the car park. An argument developed. The appellant accepted that he punched the victim in the face with a clenched fist, walked down the street with the victim who continued to yell at him. The victim then suffered an epileptic fit and the appellant went to her aid. The appellant stated to police that he regretted his conduct and that he was influenced by alcohol.
In his reasons, the magistrate noted that ‘this incident appears to have been something of a wake-up call’ for the appellant. He accepted that since the offence the appellant had been involved in a methadone program and attending alcoholics anonymous. He had been taking medication for a number of months with considerable relief. He was under the supervision of a social worker at Warinilla and was receiving ongoing treatment at that centre. He was also attending an anger management course. The appellant was residing with his mother and had ceased his relationship with the victim.
The magistrate received a psychological report and a social welfare officer’s report from Drug and Alcohol Service Council at Warinilla. The authors were of the view that a custodial sentence would disrupt the appellant’s ongoing treatment and would be detrimental to his rehabilitation.
In his sentencing remarks, the magistrate referred to the appellant’s three prior convictions for assault occasioning actual bodily harm. On each occasion a suspended sentence of imprisonment had been imposed. He noted that the appellant’s last offence had occurred two years prior to this offence. The magistrate mentioned the plea of guilty but he did not indicate that he had any discount to reflect the plea. He convicted the appellant and imposed a sentence of three months imprisonment. He declined to suspend the sentence.
The appellant’s principle complaint was that the magistrate had considered the question of suspension prior to fixing a term of imprisonment. The appellant further submitted that the magistrate made an error of fact concerning the period over which the past convictions had occurred. It was said that the magistrate placed too much weight on the appellant’s first conviction, mistakenly believing it to have been in 1997. It was said that insufficient weight had been given to his plea of guilty.
On Appeal
As earlier observed the central issue on appeal was whether the magistrate had approached the sentencing of the appellant in accordance with correct sentencing principles. The magistrate said:
“I give you credit for your plea of guilty. You are 37 years old now. You have a record for various matters, which include significantly three convictions for assault occasioning actual bodily harm. They have occurred at fairly long intervals, between [1997] and 1999. On each occasion you have received a suspended sentence. I am troubled by the fact that there has been yet another incident of this kind two years after the incident in 1999 when you were sentenced. A custodial sentence is the appropriate penalty; the issue is whether or not that should be suspended. Having regard to all the circumstances and your background, on this occasion a short sentence should not be suspended.
Accordingly, you will be convicted and sentenced to three months imprisonment, to be served forthwith.”
The magistrate’s decision to not suspend the sentence appears to have been made following his decision to imprison, but before he had decided upon a term of imprisonment. This approach does not accord with proper sentencing practices.
Initially, a decision should have been made as to whether it was appropriate to order imprisonment. If it was decided that imprisonment was appropriate, a decision as to the length of the custodial sentence should then have been made. Once that term had been fixed, the issue of suspension could properly be addressed. In The Queen v Wilton[2] King CJ, (Mitchell and Williams JJ agreeing) when dealing with the co-offenders said:
“The correct approach to the sentencing of these co-offenders was for the sentencing Judge to consider first the length of the sentence of imprisonment which was appropriate to each offender. In doing so it was relevant to consider, among other things, the proper proportion which the sentences should bear to one another in the light of the respective degrees of culpability of the co-offenders and their respective circumstances. Having determined the length of the sentences, the learned Judge ought to have applied his mind to the offenders individually and ought to have considered in relation to each offender whether he was of opinion that, having regard to the matters mentioned in the section or any of them, it was expedient to suspend the sentence. In that latter process considerations of disparity have no part.”
[2] (1981) 28 SASR 362 at 367.
These principles were applied in The Queen v Palliaer[3] where Mitchell CJ said:
“In my opinion the learned sentencing Judge did err in his approach to sentencing. The proper approach was to decide first whether there was any appropriate alternative to imposing a sentence of imprisonment; if the answer to that was in the negative then to decide what was the proper term of imprisonment to be imposed; and then, and only then, to decide whether it would be appropriate or inappropriate to suspend the term of imprisonment. The procedure which should be adopted by a sentencing judge who has decided that the offence requires a sentence of imprisonment, where there are two or more offenders, was expressed by King CJ, in reasons with which the other members of the Court agreed, in The Queen v Wilton.”
When considering this issue In The Queen v P[4] the Full Federal Court said:
“There is little by way of judicial authority on the precise question of when a suspended sentence of imprisonment is appropriate. D.A. Thomas on Principles of Sentencing (London, 1982) discusses the principles which are applied in the English Court of Criminal Appeal, mostly in unreported decisions. The making of an order for suspension does not justify the imposition of a sentence of imprisonment when an immediate sentence of imprisonment would be wrong in principle. The proper length of the term should be fixed having regard to all relevant factors, and the suspension does not justify a term longer than that appropriate for an immediate sentence. As Thomas observes, all factors which are relevant to sentence should be taken into account before deciding that a sentence of imprisonment is appropriate and what the length of the term should be. In considering whether or not the term so fixed should be suspended the sentencing judge must either give double weight to some factors for which the judge has previously made allowance or look for new factors which are not relevant to the factors already considered. Nevertheless the exercise must be undertaken. In undertaking it, the Judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King C J referred in Osenkowski, or for some other sufficient reason should have this particular avenue opened to him, provided the conditions of the suspension are observed.
The principles find support in the views of Mitchell ACJ. In R v Palliaer (1984) 35 SASR 569 at 571 ...”
[3] (1984) 35 SASR 569 at 571.
[4] (1992) 111 ALR 541
In Berry v Police[5] Debelle J followed the approach taken in Palliaer. However he observed that the sentencing discretion should not be unduly circumscribed. He recognised that there are circumstances that may justify a substantially lesser sentence than that which would otherwise ordinarily be ordered. His Honour said that this might be appropriate:
“... for the purpose of administering what has been called a short, sharp shock for the purpose of reminding the offender of his obligations to the community.”
[5] [1999] SASC 168
In this case the magistrate failed to determine the question of the length of the term of imprisonment before addressing the issue of suspension. His approach was at odds with correct sentencing practice. The procedure followed led to a material risk that extraneous matters were considered when he declined to suspend and fixed the term of imprisonment. The procedure followed may offer an explanation for the magistrate imposing a short sentence despite the appellant’s criminal antecedents.
In his sentencing remarks, the magistrate said:
“You have a record of various matters, which include significantly three convictions for assault occasioning actual bodily harm. They have occurred at fairly long intervals, between 1997 and 1999”.
A note from the magistrates’ clerk was tendered by consent explained that there had been a typing error. It showed that the magistrate had checked his bench book and confirmed that a typographical error had occurred during the compilation of his sentencing remarks. I accept that this was the case. The magistrate acted on the correct factual basis when considering the appellant’s prior record.
Each of the appellant’s earlier offences resulted in the imposition of a suspended term of imprisonment. The most recent offence in 1999 had incurred a term of five months. In this case the magistrate imposed a considerably shorter sentence of three months. There are a number of possible explanations. One relevant factor may have been the plea of guilty. Although the effect of the appellant’s plea was not explained, I am not satisfied that the magistrate failed to have proper regard to that fact.
As error has occurred in the sentencing process, the orders made by the magistrate may be set aside and the appellant resentenced. It is appropriate that this court perform this task.
Resentencing
Given the appellant’s criminal antecedents, his conduct on this occasion called for a custodial sentence. Having regard to the appellant’s personal antecedents, his plea of guilty, and his contrition, I fix a term of imprisonment of three months. In doing so, I have reduced the sentence from four months to three months on account of his plea of guilty. This term may be unduly lenient in the circumstances, however, having regard to the principles of double jeopardy, it is inappropriate to fix a longer term. The appellant did not challenge the term of imprisonment imposed. There was no cross-appeal by the Crown.
The relationship between the victim and the appellant was far from harmonious. Both were responsible on this occasion for the losses of temper. The victim acknowledged by letter that she had been an instigator of the incident. The impact of the assault on the victim may be measured in part by the fact that she has urged that a non-custodial sentence be imposed. Her remarks about penalty are of no other relevance to the sentencing process[6]. At the time of the victim’s epileptic seizure the appellant went to her aid. This conduct supports the view that the domestic disturbance had been somewhat resolved.
[6] Bekker v Police 120 A Crim R 170, R v Byrnes and Hopwood (1996) 189 LSJS 190
The appellant’s criminal antecedents demonstrate a significant problem with anger management in domestic situations. Two of the previous offences appear to have involved incidents of domestic violence. However, on each prior occasion he has complied with the terms of bonds imposed. At no time have the suspended sentences been revoked. The appellant’s compliance with the terms of the bonds demonstrates their utility in his case.
The psychological and social welfare reports indicate that the appellant has been taking steps to address his problems. He has attended counselling and treatment as required and has undertaken appropriate courses for alcohol abuse and anger management since the commission of this offence. The appellant’s history suggests that treatment and rehabilitation provide the best means of protecting the community in this case.
When considering whether a sentence should be suspended it is important to recall that community protection is paramount. In Yardley v Betts[7] King CJ addressed this issue of community protection:
“It is necessary to keep firmly in mind the fundamental principle that the criminal law exists for the protection of the community. This protection is achieved, in my view, primarily by making the punishment fit the offence and the offender thereby promoting respect in the community for the justice of the criminal law. The aspect of deterrence of the particular offender and of others must not be overlooked. The courts must assume, although evidence is wanting, that the sentences which they impose have the effect of deterring at least some people from committing crime.
.........
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.
To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however, understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations.
............
The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so.”
[7] (1979) 22 SASR 108 at 112-113.
Given the circumstances of this case it is possible to extend some leniency to the appellant. The community is best protected by the appellant’s successful rehabilitation. Although the appellant’s antecedents ‘at first blush’ suggest that leniency is inappropriate, I consider that his prospects of successful treatment and rehabilitation call for a suspended sentence. An immediate custodial term may impede the appellant’s rehabilitation.
There are a number of factors which indicate that the appellant is motivated to effect his own rehabilitation. There are good prospects for successful rehabilitation. Those factors include his past compliance with the terms of bonds, the courses he is presently undertaking in regard to drug abuse and anger management, and the opinions of those involved in his treatment.
The term of imprisonment will be suspended. The appellant is to be released on a bond to be of good behaviour for three years. In the event that there is a breach of the bond the appellant is to attend at Court to be re-sentenced:
The terms of the bond are that the appellant:
-       be of good behaviour;
-       be under the supervision of a correctional services officer
-       obey the directions of his correctional services officer and attend such courses as may be directed in regard to alcohol and anger management.
LIST OF JUDGMENT CITATIONS AS THEY APPEAR IN JUDGMENT
1      The complaint was in the following terms:
“On the 28^th day of September 2001 in the said State, assaulted Elizabeth Maria Crosby a person above the age of 12 years thereby causing her actual bodily harm.
Section 40 of the Criminal Law Consolidation Act, 1935.”
2 (1981) 28 SASR 362 at 367.
3 (1984) 35 SASR 569 at 571.
4 (1992) 111 ALR 541
5 [1999] SASC 168
6Bekker v Police (2001) 120 A Crim R 170, R v Byrnes and Hopwood (1996) 189 LSJS 190
7 (1979) 22 SASR 108 at 112-113.

“On the 28^th day of September 2001 in the said State, assaulted Elizabeth Maria Crosby a person above the age of 12 years thereby causing her actual bodily harm.
Section 40 of the Criminal Law Consolidation Act, 1935.”

[2002] SASC 185

4 June 2002