Lock v Police No. Scgrg-98-1667 Judgment No. S278

LOCK v POLICE
[1999] SASC 278

Full Court: Doyle CJ, Bleby and Wick JJ

DOYLE CJ. (ex tempore) This is an appeal against a decision of a judge of this court, on an appeal against sentence imposed by the Magistrates Court. The judge gave leave to appeal to the Full Court.
The appellant pleaded guilty before the Magistrates Court to number of counts on four different complaints and on one information. The magistrate imposed one penalty, taking into account all of the counts to which the appellant pleaded guilty. The magistrate sentenced the appellant to imprisonment for 2 years 6 months and fixed a non-parole period of 18 months to commence from 2 December 1998, the day when sentence was passed.
On appeal before the judge it was common ground that the magistrate did not have power to impose a single sentence. Under s18A of the Sentencing Act as it then stood, the power to impose a single sentence was not available in respect of offences charged on more than one complaint or information. The section has been amended since then to remove the restriction.
The judge allowed the appeal and re-sentenced the appellant on each count. The judge imposed three separate sentences totalling 2 years 6 months, and fixed a non-parole period of 18 months. The judge directed that the head sentence and non-parole period commence on 25 August 1998, when the appellant was taken into custody. The magistrate had refused to make such an order.
The judge also imposed a fine on each of two counts.
The appellant now complains that the sentence of imprisonment on two matters is manifestly excessive. No complaint is made about the fines. No complaint was initially made about the third sentence of imprisonment, although leave is now sought to appeal against that sentence.
I mention in passing that the order allowing the appeal is wrongly expressed. That is, the order allowing the appeal to the judge. It omits all reference to the fines. It fails to record the sentence of imprisonment on each relevant count, referring only to the total head sentence. It omits the judge's order as to the date from which the head sentence and non-parole period run. It is important to ensure that the order of the court correctly records the decision reached on each matter before the court. The order should be withdrawn and resealed in the correct form. I refer to rule 3.04 and rule 84.12. I turn now to the appeal.
The first matter for which the judge sentenced the appellant is a charge of assault occasioning actual bodily harm and a charge of wilful damage to property, both committed on 28 November 1996. The appellant and another man went to the home of the victim, kicked the door in and assaulted the victim. They went there because the victim had assaulted the other man's girlfriend. It was the other man who struck the victim. The magistrate imposed a single fine on the appellant of $300. No complaint is made about the sentence. I mention the matter only because the offence is part of the appellant's record and because the offence appealed against is also an assault.
The second matter comprises three counts and is the matter in which leave is sought to appeal. On 9 January 1998 the appellant was driving his motor car. He became annoyed for some reason about the driving of another driver. He stopped in front of the other car, forcing it to stop. Each driver got out of his car. There was an argument. The appellant struck the other driver on the forehead. It was not a serious blow. The appellant then twice reversed his car into the other car, damaging it.
The judge took a serious view of these offences and imposed a single sentence of 6 months imprisonment. As I said, leave was sought to appeal on this matter. I agree with the judge's approach. This sort of offence must attract a deterrent sentence. I would refuse leave to appeal on this matter because in my opinion there is no reasonable prospect of success in relation to it.
The next matter is a charge of driving without due care on 10 January 1998. The judge imposed a fine. The matter can be left at that. There is no appeal.
Then came a charge of assault occasioning actual bodily harm on 11 March 1998. The offence was committed on a child aged about 4 years. She was the child of the appellant's partner. Apparently the partner was in prison. The appellant was caring for the child and other children, but apparently not coping with the responsibility. The victim had hit a smaller child in the family. The appellant smacked her, but that did not seem to affect her. He then got a belt and struck the victim. This was a serious assault. The photos indicate that multiple blows must have been struck. The victim had extensive bruising. The magistrate said that he was sickened by the photographs of the injuries, and having seen the photographs I can well understand his comment. The child was badly beaten. The judge imposed a sentence of 18 months imprisonment, cumulative upon the earlier sentence of 6 months.
Next came a charge of driving while disqualified from holding a licence on 11 June 1998. The appellant had been doing some work on a friend's car at the appellant's house. The car was blocking another vehicle. The appellant drove the friend's car onto an adjacent paddock, did a loop, and then drove back onto the lawn. This was to allow the other car out. Unfortunately for him, he was seen by the police.
The judge said that it was not a serious offence of its type. However, the appellant has five previous convictions for this offence. The judge said that a deterrent penalty was called for and imposed a sentence of 6 months imprisonment, cumulative upon the previous sentences.
The appellant has a very bad record. He has numerous traffic convictions, some relatively minor dishonesty offences, some minor drug offences and some minor public order offences. The overall list of convictions is a long one. The time for leniency has clearly passed, in the case of the appellant. The record, which is as bad as I have seen of its type, indicates that the appellant needs stern treatment to convince him of the need to obey the law.
It does not follow from this that the appeal must fail, but, as I said, the appellant's record indicates that something is called for to deter him from further offending.
I will now concentrate on the offences which attracted imprisonment and are the subject of appeal. They are the assault on the child and the offence of driving whilst disqualified.
As to the assault on the child, it was put to the judge that this was out of character and the result of stress. The appellant realised he had been wrong and regretted his actions. On appeal similar points were made. In particular it was submitted that the incident began as proper chastisement and got out of hand.
I consider that the sentence imposed was fully justified. The appellant's record demonstrates that he has not learned to control his impulses. The assaults earlier referred to indicate that the appellant needs to be deterred from this sort of conduct. The offence is a bad one of its kind. The child was badly beaten.
The matters put in mitigation do not really explain such cruel treatment of a child and such serious beating. The courts must try to protect defenceless victims like this child from such mistreatment. One way of doing so is to impose severe punishment on people who commit such offences. It is true that the only closely similar prior conviction is the assault on the driver, but I consider, as I have already said, that the appellant's record indicates that he is a person with a disregard of the law and of the rights of others.
It is said that the judge did not make adequate allowance for the plea of guilty. The judge did not indicate what allowance was made, although the judge does refer to the fact of a plea of guilty. However, even allowing for a plea of guilty, I consider that the sentence is within the permissible range, and accordingly it is not open to me to interfere with it.
I come to the sentence of 6 months imprisonment for driving while disqualified.
I agree that this offence is not an instance of the offence that ordinarily would result in imprisonment. I remind myself that the maximum sentence for this offence is imprisonment for 2 years. The sentence imposed is not to be increased because of previous offences. On the other hand, as well as allowing for the gravity of the offence, the sentence must be one that will deter the appellant from such offending in the future. There can be no reduction at all on the basis of the appellant's record.
As I mentioned earlier, this record of driving offences is about as bad as one tends to see in this court. The appellant's previous convictions for this particular offence have attracted the following penalties: in 1989 six months imprisonment suspended; in 1991 seven days imprisonment; in 1994 two weeks imprisonment suspended; in 1994 and 1996, offences dealt with together, 2 months imprisonment. The appellant also has frequent convictions for unlicensed driving and for driving an unregistered and uninsured vehicle.
In the case of an offender with such a record and who has been given chances in the past, imprisonment does not depend upon whether the offending can be regarded as contumacious. This is not the sort of case that was considered by this court in Police v Cadd (1997) 69 SASR 150. In his reasons, which were regarded as a basis for a majority decision, Mullighan J was dealing mainly with a first offender. I refer to his reasons at 179. At 180 he said:
“Of course, different considerations must apply to the offender who is before the court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.”
That merely emphasises that the focus in Cadd was upon first offenders.
In considering this appeal, I consider that the key issues are the seriousness of the offence itself and the appellant's record. For a relatively minor instance of this offence, I find it difficult to justify a sentence as heavy as 6 months, even when allowance is made for the clear need for a deterrent sentence. I consider that the judge erred in this respect. However, having regard to the need to deter the appellant, I consider that a sentence which is likely to deter him is still required. I would set aside the sentence of 6 months imprisonment and substitute a sentence of imprisonment for 3 months, cumulative upon the other two sentences.
In relation to the newly-combined head sentence of 2 years 3 months as a result of this, I would fix a non-parole period of 1 year and 4 months.
For those reasons, I would allow the appeal in part, but otherwise dismiss the appeal and I would refuse the application for leave to appeal.

BLEBY J: I am disturbed by some of the circumstances surrounding this appeal. The offending is serious. Road rage of the type committed by the appellant on 9 January 1998 and the assault on the appellant's stepdaughter on 11 March 1998 are both serious and are not to be condoned. The offence of driving under suspension, whilst not at the most serious end of offending in itself, was committed against a background of many similar driving offences. Collectively the appellant’s record in that regard indicated a total disregard for the laws relating to the driving of motor vehicles and the requirement to hold a current driver's licence when exercising the privilege of driving a motor vehicle.
Viewed objectively, the orders proposed by the Chief Justice are, in my opinion, entirely fair and reasonable. This series of offences, however, is indicative of a person who, for whatever reason, seems quite unable to control his anger when aroused and who, as his record of previous offences suggests, has little or no respect for or understanding of either the rights of others or basic forms of law and order necessary in a modern society. He is resentful of any form of authority other than that exercised by himself. It appears that he was refused bail pending the hearing of these charges simply because he declined to accept the discipline of appearing voluntarily on remand.
Society plainly cannot condone that sort of behaviour, and yet, when viewed against the appellant's personal background, his attitude to society and to authority may be explicable. He was as a child subjected to considerable parental violence. His family circumstances probably encouraged rebellion, selfish fulfilment and abuse of the sort of authority that was exercised against him. Those patterns of behaviour, of anger management and of resentment of authority, may well have become second nature to him as an adult, whilst being utterly repugnant to those fortunate to have been brought up in a loving, selfless and caring environment. But to punish that behaviour with the full force of the criminal law may be to punish behaviour which, I suspect, the perpetrator just does not know how to control. He may never have known anything else.
The appellant has had custodial sentences in the past, the longest being 2 months. Others have been suspended. This was his first immediate custodial sentence of any real significance. It does not appear that he has ever had any underlying problem identified or treated. In respect of these offences, he has been in custody since 25 August 1998, a period now in excess of 10 months, in excess of 4 months of which were on remand pending sentence. The balance has been served pending the hearing of two appeals.
On the sentence imposed by the Judge of this Court, and assuming good behaviour, he has less than 8 months to serve before being released on parole. If the sentence proposed by the Chief Justice is implemented he now has less than 6 months to serve.
One could seriously question whether the custodial sentence to which he has been subjected will achieve anything but further resentment of authority, a hardening of attitude and an introduction to even more serious crime. Had I been sentencing afresh, without the impediment of a substantial period in custody to date, I would have considered that in many respects these offences may indicate a cry for help, a cry which may indicate a lack of understanding of any alternative behaviour patterns under stress, and with this type of child abuse, a lack of understanding of parenting and child management. In my opinion it was a cry which warranted more serious investigation than was given, resulting possibly in the suspension of a sentence of the order of that now imposed, with conditions of a bond being structured in such a way as to ensure access to and possible benefits from a program of social adjustment and anger management. It cried out for a pre-sentence report of a psychologist. Whether such a report would have indicated any possibility of reform, whether any appropriate programs exist, and whether such investigation would actually have resulted in a suspended sentence, I am in no position to say.
Incidentally, I note also that there was apparently no victim impact statement tendered, no medical report of the physical injuries suffered by the stepdaughter, and no psychological report of the effects of that type of injury on the child. That, of course, is only relevant to the assault occasioning actual bodily harm to the stepdaughter, but such material would have been of assistance in determining the penalty for that offence.
Returning to the pre-sentence report, the clock cannot now be turned back, and to institute such an investigation now would, I believe, send too many mixed messages both to the appellant and to the community, quite apart from the admission at this stage of proceedings of fresh evidence.
For these reasons and with some reluctance I am prepared to join in the orders proposed by the Chief Justice. I remain concerned, however, at the possible long-term effect of such a sentence on the appellant's attitude to society and to authority. I can only urge the Parole Board, if the appellant makes the most of his non-parole period, to consider carefully conditions of parole directed towards anger management and realisation of his responsibilities to others in society and to children for which he is responsible, if indeed the indicators are that such a program might be of some benefit.
WICKS J: I agree with the orders proposed by the Chief Justice for the reasons he gives.
DOYLE CJ: The orders are as follows:
Appeal allowed in part.
Set aside the sentence of imprisonment for 6 months imposed on the count of driving while disqualified.
Substitute on that count a sentence of imprisonment for 3 months to be cumulative upon the sentences of 6 months and 18 months imposed by the judge on other counts.
Set aside the non-parole period fixed by the judge and fix a non-parole period of 1 year 4 months to operate from 25 August 1998.
Otherwise dismiss the appeal and the application for leave to appeal.

[1999] SASC 278

8 July 1999