Lang v Police
[2019] SASC 97
•7 June 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LANG v POLICE
[2019] SASC 97
Judgment of The Honourable Justice Hinton
7 June 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence.
Following a trial in the Magistrates Court the appellant was found guilty of two counts of aggravated assault, contravening a term of an intervention order and property damage. On 21 March 2019 the Magistrate imposed convictions on all counts and sentenced the appellant to imprisonment for six months. The appellant committed the aggravated offences by assaulting his then domestic partner and a police officer who was acting in the course of his duty.
The appellant appealed to this Court against his convictions and sentence, though his appeal against his convictions was subsequently abandoned. As to his sentence, the appellant appealed on two inter-related grounds:
1. that the Magistrate failed to have regard to the appellant’s lack of antecedents, age, community work, good character and the interests of justice; and
2. the sentence of six months’ imprisonment was manifestly excessive.
Held, allowing the appeal in part, the appellant is to serve 16 weeks of his six-month sentence of imprisonment in prison with the remainder of the sentence being suspended upon the appellant entering into a bond to be of good behaviour.
Criminal Law Consolidation Act 1935 (SA) ss 5AA(1), 20(3), 85(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Magistrates Court Act 1991 (SA) s 42(1); Sentencing Act 2017 (SA) s 96(4); Supreme Court Civil Rules 2006 (SA) r 286(1), referred to.
House v The King (1936) 55 CLR 499, applied.
R v Saunders [2017] SASCFC 86, discussed.
Bugmy v The Queen (2013) 249 CLR 571; Clark v Trenerry (1996) 125 FLR 260; Hili v The Queen (2010) 242 CLR 520; Kumantjara v Harris (1992) 109 FLR 400; R v Lutze (2014) 121 SASR 144; R v Manolakis [2008] SASC 129; R v Morse (1979) 23 SASR 98, considered.
LANG v POLICE
[2019] SASC 97Magistrates Appeal
Hinton J:
Introduction
The appellant, Richard Walter Lang, was found guilty by a Magistrate after a trial of the following offences:
i.aggravated assault against a domestic partner, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (count 1);
ii.contravening a term of an intervention order, contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (count 2);
iii.aggravated assault against a police officer, contrary to s 20(3) CLCA (count 3); and
iv. property damage, contrary to s 85(3) CLCA (count 4).
In sentencing the appellant the Magistrate imposed convictions on all counts and, pursuant to s 26 of the Sentencing Act 2017 (SA), imposed one penalty, namely, imprisonment for a period of six months.
Initially, the appellant appealed against his convictions and his sentence. Subsequently, he abandoned his appeal against his convictions. As to his sentence, he appeals on two grounds. First, that the Magistrate erred in that he failed to have regard to the appellant’s lack of antecedents, age, community work, good character and the interests of justice in sentencing the appellant, and, second, that the sentence of six months’ imprisonment was manifestly excessive.
I would allow the appeal in part. My reasons follow.
The circumstances of the offending
The offending occurred in the context of a domestic relationship in the throes of coming to an end.
In April 2018 the appellant was living with Ms G and her daughter AG, then aged 13, at Kapunda. Ms G and the appellant had been living together and in a relationship since 2011, although they spent a few months apart in 2016.
On 27 April 2018 Ms G and AG went to Edwardstown so that Ms G could attend a specialist medical appointment. Mother and daughter then travelled back to Kapunda where Ms G stopped to consult her general practitioner and to receive a flu injection. They waited at the doctor’s surgery for about half an hour to ensure that Ms G did not have a reaction to the injection before going to the chemist. Whilst outside the chemist they were approached by the appellant. He was angry and abusive. He screamed at Ms G and AG about being late. He called them “fucking bitches” then got into his car and drove off.
Ms G and AG went home. The appellant was already home. It was dinner time and the appellant was ranting and raving about dinner. AG prepared a meal which she ate with Ms G outside so as to avoid the appellant. In time he came out. He kicked a table causing a coffee cup and other items on the table to fall. He then went back inside where he was seen through the kitchen window to throw a dishrack against the fridge. At some point the appellant re-emerged. Ms G was scared. The appellant was drunk and would not calm down. He was yelling at her. He punched her with a clenched fist to the left shoulder (count 1). Ms G began to cry. AG was present and was frightened. She told the appellant to calm down, to which the appellant responded saying words to the effect, “tomorrow is D-day, you have netball, I am going to talk to your mum”.
AG then went to the neighbour’s house and asked the neighbour to call the police.
Brevet Sergeant David Byrne was tasked to attend the Kapunda premises. He was in uniform. When he arrived he was met at the gates by AG who led him to where Ms G was sitting outside. Sergeant Byrne sat down, put his glasses on and began to take notes while talking to Ms G. Two or three minutes later the appellant appeared at the door of the house. Ms G told him to go back inside. The appellant asked Sergeant Byrne what he was doing there and told him that it was private property. The appellant was asked to go back inside but refused. Sergeant Byrne stood up and went to approach the appellant. When he fronted the appellant at the doorway the appellant punched him. The punch was described as an unusual two-handed punch delivered in a jabbing manner. It connected around Sergeant Byrne’s mouth. The Sergeant grabbed the appellant by the shoulders. As he did so the appellant punched him a second time grazing the top of his forehead (count 3). Sergeant Byrne punched the appellant to the head, then wrestled him to the ground and handcuffed him. The appellant was constantly yelling at Sergeant Byrne and abusing him. Sergeant Byrne suffered a split lip, a cut to the inside of his mouth, grazing to his forehead and a sore hand. Further, his glasses were broken (count 4).
At the relevant time the appellant was subject to an intervention order. AG was the protected person under that order. The order prohibited the appellant from threatening, harassing, assaulting or intimidating AG. The Magistrate found that the appellant’s behaviour amounted to the breach of the intervention order (count 2). Specifically, the breach was comprised of intimidating AG by assaulting Ms G and Sergeant Byrne in her presence, abusing her and conducting himself in a violent and abusive manner.
The Magistrate’s remarks on sentencing
The appellant’s trial was completed on 15 March 2019. Judgment was delivered on 21 March 2019. On that same day the Magistrate sentenced the appellant. In his sentencing remarks the Magistrate did not repeat the factual circumstances of the offending. In that regard he referred to his judgment on conviction. Above I have produced a narrative of the events of 27 April 2018 from the Magistrate’s summary of the evidence consistent with the verdicts returned. The Magistrate expressly found the following facts proved beyond reasonable doubt:
· That at the material time, … [AG] … was the protected person in the terms of an intervention order whereas against the defendant. Exhibit P1.
· That at the material time, the defendant and … [Ms G] … were domestic partners.
· That on 27 April 2018, the defendant, … [Ms G] … and … [AG] … were residing at the house when the incident giving rise to the charges in this case occurred.
· That when … [Ms G] … was seated at the table outside the house, the defendant had approached and assaulted … [Ms G] … by punching her left arm with a clenched fist.
· That at all material times, Byrne was present in the house lawfully acting in the course of his duty as a police officer.
· The defendant had assaulted Byrne by punching Byrne to the mouth.
· That when Byrne approached the defendant at the door to the house, Byrne was wearing his spectacles and the defendant without lawful excuse and being recklessly indifferent as to his conduct in the course of assaulting and resisting Byrne damaged the said spectacles.
· That at all material times in the house, the defendant by his committing the assaults on … [Ms G] … and Byrne in the presence of … [AG] …, together with his attendant conduct including his verbal utterances to … [AG] …, behaved in a violent and abusive manner.
· That the violent and abusive manner of the defendant as foresaid was not trivial and amounted to such intimidation as to cause … [AG] … distress and fear for her own personal safety.
The defendant is guilty of all of the four offences as charged in the information. For completeness, I also find as established beyond any reasonable doubt, the following:
· That as a result of the assault by the defendant, Byrne had suffered injuries being a split lip, a cut inside his mouth and an abrasion to his forehead.
· At the material time, the defendant resisted Byrne who was acting lawfully in carrying out a physical arrest of the defendant.
· That Byrne was defending himself when he punched the defendant after the defendant had thrown a second punch which had grazed Byrne’s forehead.
· That the physical force resorted to by Byrne in arresting the defendant was reasonable in the circumstances.
· That the defendant had been duly served with a copy of the confirmed intervention order being Exhibit P1 on 6 July 2016 and I do so find this proved on the basis of the proof of service in the relevant court file on the basis that the contents of the proof of service also amounts to a business record.
In his sentencing remarks the Magistrate noted that all of the offences of which the appellant was convicted were punishable by imprisonment. He then turned to the appellant’s personal circumstances. He said:
… The defendant is now 69 years old, at the time when he committed the offences he was 68 years old. He had previously been married for 39 years and his late wife had passed away in 2010. Since the age of 14 years old, he has worked. He has been a truck driver, he has been a bus driver and in April 2018 he has also participated as a volunteer bus driver. Currently he is in employment on a full-time, seven days a week basis on call-outs working for an auto and towing business. His employer has provided a letter dated 21 October 2018 confirming his current employment status. On that same token, it is also in the employer’s letter, support from his employer to continue engaging the defendant in his services and also expressing a belief that the defendant is no threat to the community at large and that the offending of the defendant has only come about because of issues specific to his relationship breakdown with … [Ms G] ….
The Magistrate referred to five character references provided. I have read the character references. They tell of a hardworking, honest man who has made a positive contribution to the life of his local community. I note that most of those references refer to a stage in the appellant’s life before he moved to Kapunda. The move to Kapunda for the appellant and Ms G was relatively recent. There is reference to the appellant being a good family man. One reference refers to some difficulties that Ms G and the appellant have encountered as a consequence of being a “blended family”. There was also a letter from a prospective employer that makes plain that work with an RAA depot in Wilmington awaits the appellant.
The Magistrate referred to the fact that the appellant had a prior conviction for assault police for which the appellant was sentenced on 6 July 2016. That assault consisted of pushing a police officer and was punished by the imposition of a conviction and an order that the appellant perform 200 hours of community service within 10 months. The balance of the appellant’s antecedents are dated, minor and irrelevant.
AG provided the Magistrates Court with a victim impact statement. Neither Ms G nor Brevet Sergeant Byrne provided a victim impact statement. In her victim impact statement AG says that she is very scared of the appellant. The incident has caused her to have nightmares and disturbed sleep. She says she now takes a tablet to help her sleep.
The Magistrate makes no mention of what the circumstances were that led to the making of the intervention order. I note an interim order was obtained late last year and confirmed earlier this year. There is reference in the appellant’s antecedents to an earlier intervention order. I know nothing of the circumstances resulting in the making of that earlier order save that in police records it is styled a domestic abuse order and that it was made on the same day in 2016 that the appellant was dealt with for the assault police charge to which reference has already been made.
The Magistrate considered that the aggravated assault on Ms G and the aggravated assault on Brevet Sergeant Byrne were offences committed in circumstances that warranted specific and general deterrence being afforded significant weight. As for the offence of breaching a condition of an intervention order, the Magistrate noted that the protected person was AG, a young and vulnerable child. Again he observed that specific and general deterrence would attract significant weight.
The Magistrate returned to the gravity of the assaults. He correctly observed that the law was obliged to protect police officers in the exercise of their duty and was obliged to protect domestic partners. The Magistrate said:
… I am of the view that the court should have no hesitation in acknowledging this type of offending by sending out a clear and unambiguous message not only to this defendant but also to the community at large. In these circumstances, even though this defendant has no substantive offending history, I am of the view that even if he were a first offender, a court should not hesitate to subject the defendant to a penalty of imprisonment …
The Magistrate proceeded to sentence the appellant. As indicated he imposed convictions for all four offences and, after referring to the totality principle, imposed one penalty being imprisonment for six months. He indicated that he had regard to the question of whether it was appropriate to suspend that period of imprisonment or to suspend it in part or to order that it be served on home detention. In each respect he considered that such option was inappropriate. Accordingly, he ordered that the sentence of imprisonment he imposed be served forthwith.
The first ground of appeal — a weighting error?
The appellant’s first ground of appeal is really an argument attacking the weight given to the particular factors identified in the ground of appeal in arriving at the sentence imposed. Stripped bare the contention is that the appellant’s lack of antecedents, age, community work, and good character should have attracted a weight that resulted in a lesser sentence, or resulted in the sentence imposed being suspended in part or in whole.
It is well settled that on an appeal by way of rehearing, as this is,[1] against a discretionary judgment, as the imposition of a sentence is,[2] the Court can only interfere if an error in the House v The King sense is demonstrated.[3] That is to say:[4]
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
[1] Magistrates Court Act 1991 (SA), s 42(1); Supreme Court Civil Rules 2006 (SA), r 286(1).
[2] Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[3] (1936) 55 CLR 499.
[4] House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
In R v Lutze, after referring to the principles governing appeals against discretionary judgments affirmed in House v The King and regularly re-affirmed by the High Court,[5] Vanstone and Parker JJ said:[6]
A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”: Kentwell at [35] set out above.
[5] See also, for example, Dinsdale v The Queen (2000) 202 CLR 321; Bugmy v The Queen (2013) 249 CLR 571; Kentwell v The Queen (2014) 252 CLR 601.
[6] (2014) 121 SASR 144 at [47].
Respectfully, I agree.[7] Accordingly, in the present case, I treat the submissions made in support of the first ground of appeal as forming part of the submission in support of the second ground of appeal.
[7] See also, Police v Chilton (2014) 120 SASR 32 at [17] (Kourakis CJ); R v Sykes [2017] SASCFC 59; R v Glover [2017] SASCFC 56.
The second ground of appeal — manifestly excessive?
In Hili v The Queen French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[8]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
The Court of Criminal Appeal also said that “manifest error is fundamentally intuitive”. That is not right. No doubt, as the Court went on to say , manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
[footnotes omitted]
[8] (2010) 242 CLR 520 at [59]-[60].
And in R v Morse King CJ said:[9]
… To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. …
[9] (1979) 23 SASR 98 at 99.
I proceed accordingly.
The maximum penalty for each of the aggravated assaults was imprisonment for three years, for the breach intervention order, imprisonment for two years or a fine of $10,000, and for the offence of property damage, imprisonment for 10 years.
The offending was particularly serious. The Magistrate was right to refer to the duty of the courts to protect the vulnerable from domestic violence. In R v Saunders Stanley J said:[10]
The victim of this offending, who is the former partner of the appellant, was entitled to feel safe and protected in her own home. That is the very point of the terms of the intervention order and the particular condition of the appellant’s bail.
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection. If that protection is to be effective and orders of the court or conditions in bail agreements not to be mere scraps of paper, the court must impose punishments for the breach of those orders or agreements which will deter those who contravene the orders or agreements and others who might be minded to do so from offending in that way.
[footnotes omitted]
[10] [2017] SASCFC 86 at [26]-[27].
In the same case on the issue of sentencing for domestic violence and breaches of intervention orders, I added:[11]
[11] R v Saunders [2017] SASCFC 86 at [39]-[44].
… sentencing authorities are littered with references to the need to denounce, protect and deter. In R v Edigarov Wood CJ at CL said of those that perpetrate domestic violence:
…violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.
In Parker v The Queen, Underwood J, sitting in the Tasmanian Court of Criminal Appeal, said:
In my opinion sentencing for crimes of domestic violence should proceed in accordance with the following principles expressed by the Alberta Court of Criminal Appeal in R v Brown (1992) 73 CCC (3d) 242 at 249:
When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.
In R v Hamid, Johnson J, with whom Hunt AJA and Latham J agreed, said after referring to a number of authorities dealing with sentencing in cases of domestic violence:
These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence, Australian Domestic and Family Violence Clearing House”, Issues Paper 9, 2004, pages 6-7.
Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime: J People, “Trends and Patterns in Domestic Violence Assaults”, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No 89, October 2005, page 2. Domestic assaults accounted for 35%-40% of the assaults recorded by police each year from 1997 to 2004: J People, above, at page 11.
And in R v Parisi, Nyland J, with whom Debelle and Gray JJ agreed, said:
… Domestic violence of any kind is to be abhorred. The fact that the appellant’s conduct took place in breach of a domestic violence restraining order is an aggravating factor. This means that general deterrence must play a significant part in the sentencing process to bring home to others who might be like-minded that the courts will not tolerate this type of behaviour. In my opinion, this can only be reflected adequately by the imposition of an immediate custodial penalty. …
Intervention orders comprise one component of the Government’s response to domestic violence in this State. In concluding his speech on the motion that the Intervention Orders (Prevention of Abuse) Bill be … read a second time the Attorney-General said:
In enacting these reforms, Parliament will be sending a clear message that it will not tolerate the use of violence to control or intimidate another person, particularly in a domestic setting; that it recognises and abhors the lasting psychological and emotional damage to children from exposure to such violence; that it expects perpetrators to accept full responsibility for their violent behaviour; and that the paramount consideration is always the protection and future safety of the victims of abuse and the children who are exposed to it.
It must be borne in mind that the abuse which intervention orders are intended to protect against, can take many forms. Physical violence is but one. Emotional and psychological harm is often debilitating and equally often profoundly so. It is important to the maintenance of confidence in the protection that intervention orders are intended to provide that the courts treat any breach as very serious and impose sentences which reflect the contemptuous nature of a breach of a court imposed intervention order, and, most importantly, denounce, protect and deter.
[footnotes omitted]
I remain of this view.
The third member of the coram was Peek J. He agreed with both Stanley J and myself.
I would add one further observation; the effectiveness of intervention orders as a means of protecting members of the community will be undermined if the courts do not respond appropriately to their breach.
The approach of the Court of Criminal Appeal in R v Saunders reflects Parliament’s intent manifest in an offence against s 20(3) being aggravated and attracting a higher maximum penalty if committed knowing that the victim was a person with whom the offender was, or was formerly, in a relationship.[12]
[12] Criminal Law Consolidation Act 1935 (SA), ss 5AA(1)(g) and 20(3).
In this case the Magistrate was also correct to observe that the courts must protect police officers in the execution of their duties. In this regard in Clark v Trenerry Martin CJ said:[13]
… Given that the principle role of sentencing is the protection of the community, the courts would be lacking in their responsibility in that regard if they failed to do as much as is in their legitimate power to protect the police, who have a more direct and vulnerable role in achieving that same objective. That protection can be given, in part, by consistently imposing condign punishment upon those who assault police in the execution of their duty. …
[13] (1996) 125 FLR 260 at 268.
In Kumantjara v Harris Kearney J said:[14]
When imposing punishment on those who commit aggravated assaults on police officers carrying out their duty, the courts are always conscious of the need for general deterrence. By the nature of their work, which is carried out in the public interest of maintaining peace and good order, police are always in a vulnerable position. The courts have always seen them as a particular category of persons who require the protection of the courts, as far as it can be given, from physical violence. …
[14] (1992) 109 FLR 400 at 409.
And in R v Manolakis White J said:[15]
… assaults on police officers are to be regarded seriously.
They have their duty to do and it is a duty difficult and distasteful on many occasions and it is not a duty which it is to be made more difficult by unprovoked assaults.
In Heatlie v Police Mulligan J said:
Quite unexpectedly they may be faced with sudden danger and the courts must do what they can to protect police officers in the execution of their duty by imposing penalties which will deter those who are minded to attack them.
[footnotes omitted]
[15] [2008] SASC 129 at [54].
I do not take Martin CJ’s observation that sentences of condign punishment be imposed as a means of protecting police officers to suggest that all other purposes of sentencing should be forsaken. In my view the learned Chief Justice was at pains to emphasise that retribution will attract significant weight where a police officer is knowingly assaulted in the execution of his or her duty and that doing so the general deterrent and protective purposes of the sentence will, ordinarily, be best promoted.
Again, these sentiments are consistent with Parliament’s intent in making an assault committed against a police officer knowing the officer to be acting in the course of his or her duty an aggravated offence attracting a higher penalty.[16]
[16] Criminal Law Consolidation Act 1935 (SA), ss 5AA(1)(c) and 20(3).
In the light of the principles articulated above and having regard to the circumstances of the offending in the present case and to the applicable maximum penalties, I do not think a sentence of six months’ imprisonment is manifestly excessive. No explanation has been provided by the appellant for his conduct. No remorse or contrition has been expressed. There is nothing to mitigate his conduct. He is clearly an intelligent man whose previous involvement with the courts and the police should have served to put him on notice that violent, abusive conduct toward his family and toward police would not be tolerated.
That said, for the best part of 65 years the appellant has lived a good and productive life and will likely continue doing so upon his release. His prospects of rehabilitation are good. His relationship with Ms G is over. He has never been imprisoned before. I imagine his adjustment to life after his wife of many years passed away, must have been difficult and, perhaps, continues to be so. As I have said his offending was serious.
A sentence of condign punishment in the sense explained above was warranted. The difficult question is whether condign punishment and general deterrence, the protection of the community, including the protection of police officers and domestic partners and family members, and an appropriate response to the appellant’s breach of a court order, demand that the appellant serve the sentence of imprisonment imposed immediately and all of it.
I do not think it can be said that in deciding that the appellant be actually imprisoned the Magistrate erred in the exercise of the sentencing discretion. However, having regard to the appellant’s personal circumstances and in particular his age, antecedents, previous good character, work history and prospects of rehabilitation, I think to require that he serve the entirety of the six-month sentence so as to punish, to deter specifically and generally and to provide the protection referred to above, excessive. It must be remembered that the “object of the courts is to fashion sentencing measures designed to reclaim” the offender where such measures are consistent with the protection of the community.[17]
[17] Vartzokas v Zanker (1989) 51 SASR 277 at 279 (King CJ).
In my view, to order that the entirety of the six-month sentence be served forthwith was manifestly excessive. With respect, the Magistrate seems to have focused on condign punishment to the exclusion of rehabilitation, overlooking the likely response by the appellant to supervision in the community for an extended period which will provide a greater measure of protection for the community. I consider that the threat of being returned to prison for breaching a bond where such bond has a lifespan travelling beyond the six-month period of imprisonment better serves all the purposes of punishment in this case. Whilst the Magistrate did refer to partial suspension as an option only to reject it, I do not think his approach reasonably open having regard to the appellant’s personal circumstances and the likelihood that a partially suspended sentence would best achieve all purposes of sentencing in all the circumstances of this case.
In the circumstances, I allow the appeal but to the limited extent of directing pursuant to s 96(4) of the Sentencing Act 2017 (SA) that the appellant serve 16 weeks of his six-month sentence in prison and suspend the remainder of the sentence on condition that the appellant enter into a bond in the sum of $1000 to be of good behaviour for 18 months, that he be subject to supervision by a Community Corrections Officer and that he attend any counselling, treatment and therapeutic programs that deal with anger management and/or domestic violence as directed and deemed appropriate by his Community Corrections Officer. I will hear counsel further as to whether a non-contact clause protecting Ms G and members of her family should be included in that bond. Otherwise, the orders of the Magistrate remain.
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