Lockwood v Police - [2010] SASC 332

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LOCKWOOD v POLICE
[2010] SASC 332
Judgment of The Honourable Justice Gray
1 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence - defendant and appellant pleaded guilty to the offences of common assault and driving whilst disqualified - defendant sentenced to term of imprisonment of 18 days for assault and 26 days for driving whilst disqualified - offending in breach of good behaviour bond imposed in relation to aggravated driving without due care - Magistrate revoked suspension of sentence of 28 days imposed for that offending - Magistrate ordered that terms be served cumulatively resulting in total term of imprisonment of 72 days – whether error in the sentencing process - whether sentence manifestly excessive.
Held: appeal allowed - Magistrate proceeded under material misapprehension of fact in relation to anger management course undertaken by defendant - inadequate weight given to character references - appropriate to resentence the defendant - orders of imprisonment imposed by Magistrate set aside - revocation of suspended sentence not interfered with - one term of imprisonment of 10 days imposed in relation to assault and driving whilst disqualified - sentence fully served.
Criminal Law Consolidation Act 1935 (SA) s 20; Motor Vehicles Act 1959 (SA) s 91; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

LOCKWOOD v POLICE
[2010] SASC 332
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
Background
The defendant and appellant, Barrie Keith Lockwood, pleaded guilty to the offences of common assault[1] and driving whilst disqualified.[2]
[1] Section 20 of the Criminal Law Consolidation Act 1935 (SA) provides:
(1)A person commits an assault if the person, without the consent of another person (the victim)—
(a) intentionally applies force (directly or indirectly) to the victim; or
(b)intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i)the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii)there is a real possibility that the person will carry out the threat; or
(d)does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e) accosts or impedes another in a threatening manner.
(2)However—
(a)conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and
(b)conduct that is justified or excused by law cannot amount to an assault.
(3)A person who commits an assault is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 2 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
[2] Section 91 of the Motor Vehicles Act 1959 (SA) relevantly provides:
(1)This section and section 93 apply to suspensions and disqualifications imposed under this or any other Act.
(2)While a licence or learner's permit is suspended it has no force or effect.
(3)Subject to section 81B(4), while a person is disqualified from holding and obtaining a licence or learner's permit, any licence or learner's permit held or obtained by that person has no force or effect.
(4)The Registrar must not issue a licence or learner's permit to any person who is so disqualified.
(5)A person must not drive a motor vehicle on a road while his or her licence or learner's permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner's permit.
Maximum penalty:
For a first offence—imprisonment for 6 months.
For a subsequent offence—imprisonment for 2 years.
(6) Subsection (5) does not apply to a person driving a motor vehicle on a road in accordance with an unconditional licence to which the disqualification does not apply in accordance with section 81B(4).
On 10 September 2008, the defendant decided to deliver a present to the young grandson of his former partner. He had been in a de facto relationship with his former partner for a period of some eight or nine years. He had known the child since birth and retained some fondness for him. He went to his sister’s home where his vehicle was stored during a 12 month period of licence disqualification. He planned to ask his sister to drive. His sister was not at home and the defendant decided to drive his vehicle.
On the hearing of the appeal, it was counsel’s submission that the defendant wished to effect a reconciliation with his former partner and that this in part informed his decision to drive. The defendant was aware that in doing so he would be in breach of a court order of licence disqualification. His conduct in driving to his former partner’s home, and later driving to return his vehicle to his sister’s property, was properly characterised as contumacious. This conduct was the subject of the offence of driving whilst disqualified.
When the defendant arrived at his former partner’s home, he saw her walking toward the home with another man. The defendant observed a small act of affection between his former partner and the man. This led the defendant to become enraged. The defendant approached the man in an aggressive manner, inviting him to fight. The other man acted with restraint. The defendant pushed him on the chest or shoulders, causing the other man to step backwards, and while this occurred, the defendant was saying “come on, come on”. The defendant then left the scene. The man suffered no injury. This conduct gave rise to the offence of common assault.
The Magistrate imposed a term of imprisonment of 18 days for the offence of common assault. He made a reduction of three days from a notional starting point of 21 days, on account of the defendant’s plea.
With respect to the offence of driving whilst disqualified, the Magistrate imposed a term of imprisonment of 26 days. This involved a reduction of four days from a notional starting point of 30 days, on account of the defendant’s plea of guilty.
The defendant’s conduct the subject of the present proceeding breached the terms of a good behaviour bond that had been entered into on 24 October 2008. At that time the defendant had been convicted of the offence of aggravated driving without due care. He was sentenced to a period of imprisonment of 28 days. That sentence was suspended on his entry into a 12 month good behaviour bond. He was disqualified from holding or obtaining a driver’s licence for a period of 12 months. In the within proceedings, the Magistrate revoked the suspended sentence of 28 days imposed on that occasion.
The Magistrate then ordered that the two terms of imprisonment be cumulative, leading to a total term of imprisonment of 72 days.
At the time of the Magistrates Court hearing, the defendant had resumed his relationship with his former partner and together they were purchasing a home. The defendant was aged 49 years. He worked as a painter. A number of character references were tendered. It was also of particular relevance that following the offending, the defendant had attended an anger management course run by Anglican Community Care, which he had completed in March 2010.
The defendant had three prior convictions for assault – recorded in 1985, 2002 and 2005. The first two were dealt with by way of fine and the third by way of a good behaviour bond. These penalties would suggest that none of those offences were particularly serious. On the hearing of the appeal, the circumstances of those assaults were discussed. The first offence related to an assault in the context of a fight at a nightclub and involved no injury. The defendant could not recall the circumstances of the second assault, however the third also occurred in the context of a nightclub, and involved the defendant punching a crowd controller when being evicted from the nightclub. Again, no injury resulted from that offending.
The present offending represents an assault at the lower end of the scale of seriousness. No injury was occasioned and the aggressive behaviour on the part of the defendant persisted for only a short period of time. On appeal, the defendant submitted that this conduct did not warrant an order for imprisonment.
With respect to the charge of driving whilst disqualified, it was not in issue that this conduct was contumacious. On the hearing of the appeal, the defendant did not challenge the appropriateness of the sentence of the Magistrate in relation to this offending when viewed on a stand alone basis.
As earlier observed, the defendant’s conduct breached the terms of his good behaviour bond thereby enlivening the Court’s discretion to revoke the suspension of the term of imprisonment imposed on 24 October 2008. It was contended on appeal that the nature of the offending the subject of the present proceedings was of a very different character to that of the earlier offence of aggravated driving without due care. It was said that in the circumstances, the Magistrate should have exercised his discretion to not revoke the suspended sentence.
Before the Magistrate
The Magistrate provided extensive sentencing remarks. Those remarks from time to time appear to convey criticisms with respect to the way the defence submissions were presented to the Court. The Magistrate made a number of references to delays and the need for adjournments and appears to suggest that the Court processes had been poorly used. Early in his remarks he observed:
Firstly I must say that this guilty plea has proceeded unhappily in a very unsatisfactory way. I have adjourned the matter from time to time having on one occasion, prepared to deliver my reasons for judgment only to have new material put before me that required me to adjourn the matter yet again and consider various elements of this plea afresh.
Most recently fresh material was advanced to me in a context of special reasons as to why the suspended sentence of imprisonment, if revoked, should be reduced. Those same said special reasons were also re-advanced as facts to be taken into account with other material and submissions made on an earlier occasion of a more general nature. I had to adjourn the matter to reconsider the structure of my reason and how the new material impacted upon the decision making process that I comply with.
Counsel appearing for the police submitted that the defendant’s solicitor on the plea had provided detailed information to the Court as best he could in accordance with his instructions. Counsel informed the Court that it was no part of the police submission on the appeal that the conduct of the defence solicitor warranted any criticism.
The Magistrate subjected the character evidence to close analysis. It does not appear that there was any objection raised by the prosecutor to any of the references being before the Court. It is to be accepted that a number of the references were not in “copybook style”. As a consequence, the Magistrate appeared to read down or give limited weight to these references. The Magistrate may have been technically correct in his close analysis of those references. However, it is common that on pleas of guilty, personal character references are provided and acted on by the Court. Having reviewed the character references in the present proceeding, it is apparent that the defendant is well thought of by a number of members of the community and that this evidence supports the conclusion that he has good prospects for rehabilitation. Counsel for the police accepted the correctness of the above analysis.
The Magistrate discounted the significance of the anger management course undertaken by the defendant, apparently because he was under the impression that the course had been commenced in March 2010 and had not been completed. In the course of his sentencing remarks the Magistrate observed:
…I have had a report from the joint facilitators of an anger management course run by Anglicare. I[t] seems only recently as of March this year you thought it appropriate to go to an anger management course. This offending of course happened in September the year before. I note that you did not attend the full course. You participated only 75% of the time, if I can express if [sic] that way. There are eight sessions and you just did not turn up to two of them.
…
I acknowledge your attendance in this way as a positive indication, particularly as it was voluntary but I note that you failed to attend each session. It is obvious that there were other things in your life at the time and you placed more importance upon those.
Counsel for the police on the appeal acknowledged that this was a material misunderstanding of fact by the Magistrate as the defendant had in fact successfully completed the course by March 2010. It was conceded that as a consequence of this error of fact, it was arguable that the sentencing discretion of the Magistrate had miscarried and it was open for this Court to reconsider the sentence imposed on the defendant.
In the circumstances of the present proceeding, the rehabilitation of the defendant was an important consideration when addressing the appropriate sentence to be imposed. The misapprehension of fact under which the Magistrate proceeded, in addition to the apparent failure to give adequate weight to the character references, indicates that the sentencing discretion miscarried and it is appropriate to resentence the defendant.
Reconsideration of Sentence
As earlier discussed, the Court has a discretion as to whether or not in the event of a breach of bond, the suspension of a sentence should be revoked. It was open to the Magistrate to revoke the suspended sentence. The defendant did not meet his obligation to be of good behaviour. He drove in breach of the disqualification order – an order imposed with respect to a driving offence.
Dealing with the substantive offending, I consider that the offending arose out of an ongoing course of conduct. It is apparent that the assault was not disconnected from the offence of driving to the former partner’s home. I consider it appropriate to impose the one sentence for both offences pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).
The circumstances of the charge of assault indicate that the assault was at the lower end of the range for seriousness. No injury was occasioned and there was an explanation for the defendant’s behaviour relating to his reaction to seeing his former partner, with whom he wished to reconcile, with another man. The circumstances of the assault indicate that the defendant has difficulty with controlling his responses and anger. As a consequence, the anger management course undertaken voluntarily by the defendant is a matter of some significance. It demonstrates that the defendant has taken steps towards his rehabilitation, and that he recognises that his offending related to his inability to manage his responses and anger. It is to be observed that the Magistrate’s criticism of the defendant’s failure to attend each session of that course is unfounded. The facilitators of the course considered it appropriate to issue a certificate of participation to the defendant, and consequently it is appropriate to consider the course successfully completed.
The driving whilst disqualified offence was a serious offence. The defendant’s conduct was contumacious. He deliberately acted in defiance of the earlier court order.
The defendant has now served 38 days in custody in respect of the sentences imposed by the Magistrate. In my view this is an adequate and sufficient punishment for all his offending. I am prepared to allow the appeal in part. I set aside the orders of imprisonment imposed by the Magistrate. However, I do not set aside the order revoking the earlier suspended sentence. I sentence the defendant to the one term of imprisonment of 10 days. This sentence is to be cumulative on the revoked suspended sentence. I direct that the 10 day sentence be backdated to commence on 18 September 2010.
The 10 day sentence and the revoked suspended sentence have now been fully served.
Conclusion
This appeal is allowed. The sentence imposed by the Magistrate is set aside. The revocation of suspended sentence is not disturbed. Pursuant to section 18A of the Sentencing Act, I impose the one sentence of imprisonment of 10 days with respect to the offences of common assault and driving whilst disqualified. That sentence is to be backdated to commence on 18 September 2010.