Little v Police - [2010] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LITTLE v POLICE
[2010] SASC 14
Judgment of The Honourable Justice Duggan
4 February 2010
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
Appeal against sentence - appellant pleaded guilty in Magistrates Court to disorderly behaviour and resisting a police officer in execution of duty - Magistrate sentenced appellant to two months' imprisonment in relation to both offences - whether sentence manifestly excessive - whether Magistrate gave adequate consideration to appellant's mental condition.
Appeal dismissed - no evidence relating to effects of appellant's brain injury on offending the subject of appeal - Magistrate acknowledged effect of appellant's brain injury of limited relevance to penalty - sentence imposed by Magistrate within appropriate range having regard to circumstances.
R v Wiskich (2000) 207 LSJS 431, considered.

LITTLE v POLICE
[2010] SASC 14
Magistrates Appeal: Criminal

DUGGAN J: The appellant pleaded guilty in the Mount Gambier Magistrates Court to disorderly behaviour and resisting a police officer in the execution of his duty. The offences arose out of an incident which occurred at Mount Gambier on 5 June 2009.
The Magistrate imposed one sentence in relation to both offences. The appellant was sentenced to imprisonment for two months and now appeals against that sentence.
On the evening of 5 June 2009 the appellant, his brother and a group of friends were drinking at the Mount Gambier Hotel. A fight broke out amongst some of the patrons and the appellant noticed that his brother was involved in the fight. The appellant then took part in the fight and decided to leave while the altercation was still in progress. These circumstances form the basis of the charge of disorderly behaviour.
As the appellant and his brother were leaving the scene they started running because the appellant believed that the police would arrive shortly. After observing them, one of the police officers called out to the appellant to stop. The appellant replied “fuck you mate I am not talking”. When the police officer told the appellant he wanted to speak to him the appellant replied with more abusive language.
Eventually two police officers approached the appellant and one of them tried to restrain him. The appellant resisted arrest and was eventually subdued with the assistance of capsicum spray.
It was argued on behalf of the appellant that the sentence is manifestly excessive. The notice of appeal complains that the Magistrate paid insufficient regard to the appellant’s mental condition and that there was an error of fact in the sentencing remarks.
The appellant is 25 years of age. He pleaded guilty to the charges.
In submissions before the Magistrate and on appeal counsel for the appellant placed considerable reliance on a brain injury which the appellant suffered in December 2006 when he was working for a local saw mill. He was struck in the head by a piece of timber which came out of a docking machine. He suffered a fractured skull and continues to suffer from short term memory and mood instability. Three reports dated 22 August 2008, 25 February 2009, and 26 August 2009 prepared by staff at the Brain Injury Rehabilitation Unit at Hampstead Rehabilitation Centre were tendered. The reports state that the appellant’s mood swings and angry outbursts have resulted in domestic unrest and anti-social behaviour. According to the latest report the appellant has had episodes of severe depression in the past and is experiencing symptoms of fatigue and irritability.
Prior to his accident, the appellant had appearances before the Court for minor offences. Since the accident he has been convicted of producing cannabis, assault, aggravated assault, assault police, offensive language, damaging property and failing to comply with a restraining order.
The relevance of an offender’s mental condition falling short of mental incompetence as part of the sentencing process was considered in detail by Martin J in R v Wiskich.[1] After reviewing relevant authorities His Honour concluded:
The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
[1] (2000) 207 LSJS 431.
There was no evidence which related the effects of the appellant’s brain injury to the particular circumstances of the present case. However, it is clear from the medical reports that the injury has resulted in the appellant having mood swings and angry outbursts. These factors have no doubt contributed to the appellant’s anti-social behaviour in the past. On the other hand, there is no suggestion that they affect the appellant’s understanding of his behaviour or its anti-social nature.
In his sentencing remarks the Magistrate summarised the medical reports placed before him and noted the effect of the accident on the appellant’s behaviour. He accepted that the brain injury resulted in a disposition “to fly off the handle when stressed”. He said:
I accept that your brain injury does give rise to a predisposition, as it were put by your counsel, to fly off the handle when stressed. No doubt alcohol also plays its part. By flying off the handle, it means angry in disproportionate responses including as in this case, violent resisting. However this is a condition of which you are personally aware arriving out of an accident that happened two and a half years ago. I have no doubt that you might be predisposed to behaving in this way when consuming alcohol as you had on this occasion but you are not unaware of this. No doubt the predisposition played its part as it has played its part in your life in the past in terms of your domestic relationship and prior offending. But as I said to your counsel, your brain injury and predisposition as a result does not provide you with a convenient and permanent excuse for violent misconduct. You are aware of your predisposition and you are to be made accountable for your conduct. You have been aware of it for at least two years. It is not suggested that you did not know what you were doing was wrong, that they were not police officers and indeed you were aware of some conduct that you wanted to avoid. Your counsel is telling me that you simply wanted to stay out of any trouble with the police that might have arisen out of the fight situation. I can well understand that but it does not excuse your conduct when the police finally came to grips with you, as it were.
In my view, the effect of the accident on the appellant’s behaviour has some relevance to penalty, but that relevance is somewhat limited. It seems that he joined in the fight at the hotel without being provoked. His initial response to the police officers was antagonistic and this was accompanied by physical resistance when he was being arrested. The Magistrate acknowledged the limited relevance of the appellant’s predisposition. In my view the nature of the sentence is not such as to give rise to concern that no effect was given to this consideration.
I am also of the view that the sentence was not manifestly excessive. It was imposed in respect of two offences. The appellant has previous convictions for assaults including assaulting police. The circumstances required the Court to take into account general and personal deterrence. Not long before this incident the appellant served a sentence of imprisonment for assault. The Magistrate turned his mind to suspending the sentence but declined to do so.
In my view an immediate term of imprisonment for two months was within the ambit of the Magistrate’s discretion.
The appeal is dismissed.