Lock v Police

LOCK v POLICE
[1999] SASC 50

Magistrates Appeal
Nyland J

This is an appeal against sentence. On 3 December 1998, the appellant appeared before a stipendiary magistrate sitting at Christies Beach. He pleaded guilty to a number of offences charged on separate complaints, viz a complaint alleging an offence of assault occasioning actual bodily harm and wilful damage both committed on 28 November 1996; a complaint alleging assault, wilful damage and failure to stop, all committed on 9 January 1998; a complaint alleging a charge of driving without due care on 10 January 1998; an information alleging the offence of assault occasioning actual bodily harm on 11 March 1998; and a complaint of drive disqualified and a charge of failure to notify registrar both committed on 11 June 1998. The complaints also included some other charges which were withdrawn following the entry of the pleas of guilty.
The most serious matter before the court was the information alleging the charge of assault occasioning actual bodily harm on 11 March 1998. The victim of that offence was T, the appellant’s stepdaughter. At the relevant time T was aged four and a half years. The matter came to the attention of police as a result of a call from social workers who had received information about the appellant hitting T. The social workers took T to the Flinders Medical Centre where she was examined by a specialist who provided a report as to her injuries. It was noted that T had suffered extensive bruising on her legs and buttocks which were consistent with having been struck with a belt. The magistrate was provided with a copy of the appellant’s antecedent report which appeared in the main to relate to driving offences.
At the hearing in the Magistrates Court and on this appeal, the appellant was represented by Mr Katsaras, of counsel. After hearing submissions, the magistrate sentenced the appellant to be imprisoned for a period of two years and six months with respect to the offence committed against T. He fixed a non-parole period of 18 months. The magistrate convicted the appellant without penalty on all other matters.
The appellant had been in custody since 25 August 1998. The magistrate refused to back-date the sentence as he considered that the appellant had only himself to blame for that period in custody, having failed to attend court on a number of occasions.
The magistrate, understandably took a serious view of all of the appellant’s offending. His remarks suggest that it was his intention to take advantage of the provisions of s18A of the Criminal Law (Sentencing) Act 1988 in order to impose a global penalty, at least with respect to the assault matters, and possibly the charges of wilful damage. It is clear that when he recorded convictions without penalty with respect to the majority of the offences, he was not purporting to exercise the power contained in s15(1)(b) of the Criminal Law (Sentencing) Act 1988. In addition, if it had been his intention only to impose a sentence with respect to the assault on T without regard to the other matters, he would have been well aware of his inability to impose a penalty greater than two years. I think, therefore, that it was the magistrate’s intention to impose one penalty which would reflect the seriousness of all of the offending. The appellant was, however charged on four separate complaints plus an information and s18A only permits the court to impose one penalty for multiple offences when they are charged on the same complaint.
At the hearing of the appeal, the respondent conceded the magistrate had erred in law in the manner in which he had imposed sentence and that the appeal, therefore, should be allowed. The respondent maintained, however, that the overall sentencing package was appropriate to the circumstances of the case. Both the appellant and the respondent agreed that in lieu of remitting the matter back to the magistrate for further consideration of sentence it was appropriate that I exercise my discretion to sentence the appellant afresh.
As a result of his offending, the appellant was liable to the following maximum penalties:
Assault occasioning actual bodily harm on 28 November 1996, contrary to s40 of the Criminal Law Consolidation Act 1935: five years imprisonment.
Wilful damage on 28 November 1996 (damage not exceeding $2,000), contrary to s85(3) of the Criminal Law Consolidation Act 1935: two years imprisonment.
Assault on 9 January 1998, contrary to s39(1) of the Criminal Law Consolidation Act 1935: two years (three years if victim a family member).
Wilful damage on 9 January 1998 (damage not exceeding $2,000), contrary to s85(3) of the Criminal Law Consolidation Act 1935: two years.
Failure to stop on 9 January 1998, contrary to s43 of the Road Traffic Act 1961: $5,000 fine and/or one year imprisonment and licence disqualification for one year or longer.
Driving without due care on 10 January 1998, contrary to s45 of the Road Traffic Act 1961: $1,000 fine.
Assault occasioning actual bodily harm (to a person under the age of 12 years on 11 March 1998), contrary to s40 of the Criminal Law Consolidation Act 1935: eight years imprisonment.
Drive disqualified on 11 June 1998, contrary to s91 of the Motor Vehicles Act 1959 (subsequent offence): imprisonment for two years.
Failing to notify Registrar of new place of residence on 11 June 1998, contrary to s136 of the Motor Vehicles Act 1959: $250 fine.
Against that background I now turn to a consideration of the circumstances in which each of these offences took place.

Assault occasioning actual bodily harm and wilful damage on 28 November 1996.

The appellant went with a co-offender, John McKenzie to the home of the victim and attempted to drag him outside. The victim resisted and during the struggle was struck a number of times about the head. The victim suffered bruising and grazes to his arm and about his head but did not seek medical treatment. The appellant maintained that the two of them went to the house as a result of the victim having assaulted McKenzie’s girlfriend and it was their intention to remonstrate with him for his actions. The appellant went along as moral support. When they got to the house the victim would not open the door, resulting in it being kicked in. The situation got out of hand and the assault occurred. Mr Katsaras pointed out that the allegations stated that the co-offender McKenzie, and not the appellant, had punched the victim about the head. McKenzie was dealt with on another occasion and had received a fine of $300.

Common assault, wilful damage and failure to stop on 9 January 1998.

The victim in this matter said that at about 12.50 pm on 9 January 1998 he was driving his vehicle on Penneys Hill Road, Hackham. He turned right on to main South Road and went across to the left lane, his intention being to turn left into Honeypot Road. At this time he saw a white station wagon in his rear view mirror which had also turned out from Penneys Hill Road. This vehicle attempted to pass the victim’s vehicle on the left. The victim was completely in the left lane. The station wagon then passed the victim on the right side, pulled in front of him and stopped suddenly causing the victim also to stop. The driver of the station wagon, who was the appellant, got out of his vehicle. There was a verbal altercation culminating in the appellant lunging forward and striking the victim with an open palm on the forehead. The victim stated that as a result of this his sunglasses were knocked from his head, his head jerked back and he lost balance slightly. The blow did not hurt but the victim said he later had a sore neck. Following this, the appellant got back into his car which was parked about a metre in front of the victim’s car. The appellant then revved his engine and reversed into the front of the victim’s car. He then drove forward for approximately one metre before again reversing into the front of the victim’s car. The victim said that the appellant’s car was travelling at about 10 km/h at the time of the collision. The appellant then again repeated this manoeuvre before driving off at a fast rate of speed and turning into Honeypot Road, after which point the victim did not see him again. The victim noted the registration number of the appellant’s vehicle as a result of which the matter was reported to the police. It was alleged that the damage to the victim’s vehicle was estimated at about $1,000. This sum was sought as compensation but there was no documentation produced to support the claim. The appellant admitted the allegations. Mr Katsaras submitted that the descriptions of the assault showed that it was at the lesser end of the scale for offences of this kind. He indicated that the appellant was willing to pay compensation but, realistically, he was not in a position to do so as he had no assets and had been in custody since August 1998.

Driving without due care on 10 January 1998.

At about 10.20 pm on 10 January 1998, police were talking to a group of people including the appellant’s de facto, Carlie Gow Smith, in the carpark of the shopping centre at Elizabeth Road, Morphett Vale. One of the police officers heard a screech of tyres and looked over to see a Ford station wagon stopping in the middle of the road adjacent to the carpark. The vehicle reversed a short distance and then drove into the carpark and accelerated towards the group of people, causing at least one of the police officers to jump backwards to avoid being hit by the vehicle. The appellant was the driver of the car. He spoke with police who told him to leave and they would speak to him later. The police did not allege that the appellant was attempting to hit anyone but said that if they had not taken evasive action someone would have been injured. The police subsequently spoke to the appellant about these matters. He apologised for his driving and said that his defacto had stolen his money to buy drugs and that when he saw her he had just lost his temper. Mr Katsaras indicated that this was a minor matter and the fact that the police had told him to leave and said they would speak to him later was indicative of the fact that his behaviour was not viewed seriously by them.

Assault occasioning actual bodily harm on 11 March 1998.

This is the offence which relates to T. Mr Katsaras submitted that this offence was out of character for the appellant. At the time his partner, the mother of the child, was in prison and he was looking after T as well as other children by himself and he had not been coping well with this responsibility. He said that the assault arose because T had deliberately swung her arm striking the appellant’s two year old son in the face with her hand, causing him to have a blood nose. The appellant then tried to discipline her by smacking her with his hand. When she did not seem to take any notice he grabbed a belt and struck her with it. The appellant realised after the event that he had gone too far in disciplining her and he very much regretted his actions. He appreciated that it was wrong to do what he did. He said that had never used an object to smack the children before and had previously only smacked them on a few occasions softly by hand in an appropriate disciplinary manner.

Drive disqualified and failure to notify change of address on 11 June 1998.

On this occasion police observed the appellant drive his car out of a driveway onto a paddock adjacent to his house. The police were aware that the appellant was disqualified from driving so they stopped and spoke with him. The appellant was asked if he had a licence and his response was that he had one but it was taken from him by a police officer. The allegation of being disqualified was put to him and he said he was charged with driving disqualified but was told his licence was current. He stated that he never received a notice of disqualification. He was asked why he his licence showed him living at Hackham West and he said he was living there with his sister for a while when he got out of gaol. He was asked how long he had resided at his present address. He said that he had been there for 11 months. He was asked why he had not advised the Department of Motor Vehicles of the change and his response was he did not know and that they had fined him once or twice for it. He was asked what his reason was for driving disqualified and he said he did not plan to drive, he was just doing a u-turn in the paddock.
Mr Katsaras described the circumstances of this offence as unusual. The house at which the appellant was living had a front yard onto which a friend had driven a car for the purpose of the appellant performing some mechanical work to it. After the work had been completed, the driver of another vehicle which was parked in front of the car, wanted to get his vehicle out. The appellant got into the repaired vehicle and reversed it out the driveway and then onto the paddock, completing a circular movement before driving it back onto the lawn. In the meantime the other vehicle had the opportunity to get off the lawn. He only travelled a short distance, simply onto a driveway and a round circle onto the paddock and back onto the lawn. The paddock on which he drove was not an area where the public would normally frequent. The degree of embarrassment caused by his driving was minimal. Given the unusual nature of these offences, Mr Katsaras submitted the appropriate penalty would be a fine.
At the date hereof the appellant is about 28 years old. The appellant grew up in the Riverland. His parents had a fruit block and when he was six years of age his parents separated and his mother left home. She was mentally unwell and had been frequently violent towards the appellant. On one occasion when he was one year old she had broken his arm and his nose and fractured his skull. After his mother left home he and four other children stayed with the father. His father did not remarry. When the appellant was seven or eight his father sold the fruit block as he was not able to manage the labour intensive duties of running a fruit block and looking after five children. Shortly afterwards they moved to a Housing Trust home in the Renmark township. The appellant went to the Renmark High School but left after completing the first year. Eventually he left home at the age of 13 as a result of personal disagreement with his father who wished him to continue with his schooling. He worked as a fruit picker until the age of 15 when he came to Adelaide. He subsequently completed an apprenticeship as a roof plumber. When aged 23 he suffered a work injury as a result of which he had not since been in regular employment. He fell into the wrong crowd and developed a drug problem but Mr Katsaras said that had since abated. It is not suggested that drugs were a feature of any of the present offences. The appellant has been in a de facto relationship for about three years. T is the child of his de facto’s previous relationship. The appellant and his de facto had two children, a boy now aged two and an infant girl who had recently died. This had an impact on the appellant’s relationship with the de facto and at the time of the Magistrates Court hearing the relationship appeared to be over, but Mr Katsaras said on the hearing of the appeal, that the appellant was now confident of effecting a reconciliation once he was released from custody. The thrust of Mr Katsaras’ submissions was that, with the exception of the assault upon T, the appellant’s offending was relatively minor and could be dealt with by the imposition of fines and that the circumstances surrounding the assault on T were such as would warrant the imposition of a suspended sentence.
In my opinion, McKenzie was very fortunate to have only received a fine with respect to the offences committed in November 1996. The fact that he was dealt with leniently does not constrain me from imposing a proper penalty. It does not appear to be disputed, however, that Mr McKenzie was the prime culprit on that occasion and it is now two years since those offences were committed. Having regard to the principles of parity, I have decided to impose a similar fine upon the appellant with respect to those two matters. I therefore impose a fine of $300 with respect to the two offences committed on 28 November 1996. I order that that sum be paid forthwith or in default six days imprisonment.
I do, however, take a particularly serious view of the offences which occurred in January 1998. The appellant’s actions were aptly described by the magistrate as “confrontationist and designed to invoke fear”. This was an attack upon a stranger in what has come to be known colloquially as “road rage”.
As Doyle CJ said in Reeves v Police (1998) 70 SASR 451 (at 453):
“... in cases such as this, where the conduct involves a loss of temper in the course of driving, the need for general deterrence necessitates a stern response. A clear message needs to be given to the community that frustration on the road is not to be translated into violence”
In the present case, the appellant not only assaulted the victim by lunging at him in a threatening way, but thereafter quite deliberately drove into his car on two separate occasions before driving away. In my view it matters not that the victim was not in the car at the relevant time. Pursuant to s18A of the Criminal Law (Sentencing) Act 1988, I impose a sentence of six months imprisonment with respect to all of the offences on this complaint.
I also take a serious view of the offence of driving without due care on 10 January 1998, which is only the day after the “road rage” incident. There clearly was a potential for serious harm as a result of the appellant’s actions. The police appear, however, to have accepted the lack of any relevant intention. If that had not been the case, the appellant could well have been facing a much more serious charge. In this case there will be a fine of $600 payable forthwith, or in default 12 days imprisonment.
That brings me to the offence against T. This was not an isolated act caused by a momentary lapse of control. The photographs indicate that T was badly beaten by the appellant. It was a repetitive and serious assault on a young child. The appellant was in a position of trust. His actions only came to the attention of the authorities as a result of a third party intervention. The assault occurred approximately two months after the appellant had committed the “road rage” offences and at a time when he was on remand with respect to those offences. In my view, a custodial penalty is appropriate. I impose a sentence of imprisonment of 18 months with respect to this offence, which I decline to suspend. This will be cumulative upon the previous sentence.
Finally, I turn to the charge of driving disqualified. On the face of it, the circumstances are not particularly serious and if this had been the appellant’s first offence of this type, one could well have treated it with some leniency. The appellant has, however, five prior convictions for driving whilst disqualified. The appellant should therefore have been well aware of the seriousness of any driving while he was disqualified. The appellant is not to be punished for past offending, but his prior history is indicative of a continuing disregard for the law which, in my view, calls for a deterrent penalty. I therefore intend to impose a custodial sentence with respect to this offence. I sentence the appellant to be imprisoned for a period of six months. That sentence to be cumulative upon the previous sentence. I record a conviction without penalty with respect to the charge of failing to notify.
That makes a total head sentence of two years and six months. I fix a non-parole period of 18 months. In my opinion, it is appropriate to back-date the sentence and non-parole period to the date on which the appellant was taken into custody, viz 25 August, 1998.

The appeal will be allowed therefore for the purposes of substituting the sentence which I have just pronounced.

[1999] SASC 50

19 February 1999