Lovett v Police No. Scciv-03-82

LOVETT v POLICE
[2003] SASC 65
Magistrates Appeal

DEBELLE J On 17 December 2002 the appellant pleaded guilty in the Magistrates Court at Mount Gambier to the following offences charged on four separate complaints:
1.That on 1 November 2002 at Mount Gambier he assaulted another man.
2.That on 7 August 2002 at Mount Gambier he behaved in a disorderly manner contrary to s 7(1)(a) of the Summary Offences Act 1953.
3.That on 9 December 2002 at Mount Gambier he failed, without reasonable excuse, to comply with a bail agreement into which he had entered on 1 November 2002 contrary to s 17 of the Bail Act 1985.
4.That on 18 July 2002 he knowingly supplied a quantity of cannabis to another person contrary to s 32(1)(c) of the Controlled Substances Act, 1984.
I briefly summarise the facts in respect of each complaint.
As to the count of assault, the victim was walking along Commercial Street West in Mount Gambier with two friends when he was accosted by five youths including the appellant. Punches were exchanged. The victim was pushed to the ground and kicked several times by members of the group which had accosted him. The appellant’s involvement was limited to grabbing hold of the victim and pushing him to the ground. At the time, the appellant was affected by liquor.
The facts relating to the complaint of disorderly behaviour occurred in Commercial Street West. Earlier, the appellant had been fighting with his brother in Commercial Street East. They were pushing each other and uttering profanities. Police officers told them to stop their behaviour and to stop the swearing. A little later they were again fighting and swearing in Commercial Street West. They were then arrested and charged.
The third count concerns a condition of a bail agreement into which the appellant had entered on 1 November 2002, the day of the assault, the subject of the complaint. The bail agreement required the appellant not to associate with two men who had been involved in that assault. He was seen in their company on 9 December.
The facts of the fourth count were that the appellant had on 18 July supplied two cones of cannabis in exchange for a Pentax camera. The camera was sold on the appellant’s behalf to a secondhand dealer in Mount Gambier for the sum of $20 which was handed to the appellant. When arrested, the appellant had informed the police that he had exchanged the cannabis for the camera because his friends had asked him to do so.
On 12 August 2002 the appellant had been placed on a so-called Griffiths remand for an offence of non-aggravated serious criminal trespass committed on 22 April 2001.
The magistrate imposed one penalty for all of these offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. He said that he was minded to impose a sentence of six months but reduced it to a period of four months having regard to the appellant’s pleas of guilty. The sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of 12 months.
The appellant appealed against the sentence. The notice of appeal was just over two weeks late. The respondent does not oppose an extension of time. The delay was caused by an application for legal aid funding. It is proper to extend time. The time within which to appeal will be extended to 14 January 2003.
Notwithstanding it had been drawn by a solicitor, the notice of appeal did not clearly spell out the ground of appeal. However, it is apparent from the submissions made on the appellant’s behalf that the appellant complains the sentence is manifestly excessive in that no sentence of imprisonment should have been ordered or at least a substantially reduced sentence should have been ordered. The appellant relies on several grounds to sustain that complaint. They are:
1.That the magistrate ought to have given the appellant a further opportunity for rehabilitation instead of ordering a suspended sentence.
2.That the magistrate acted on an incorrect factual basis concerning the assault, as he sentenced on the footing that the appellant was part of a joint enterprise.
3.That the magistrate had erred in deciding that the starting point for the penalty for the assault was a period of six months imprisonment. This ground was not pressed.
4.That the magistrate gave undue weight to the principle of general deterrence when sentencing for the breach of the bail agreement.
5.That the magistrate had erred by punishing the appellant for breach of the Griffiths remand.
6.That the magistrate had erred in holding that the charge of supplying cannabis had involved an element of dishonesty.
The appellant is aged 22. He is single and lives with his uncle. He has worked, from time to time, as a casual labourer. It appears that he has difficulties with drugs and alcohol. He has undertaken some drug and alcohol course or courses. These offences were committed while the appellant was on bail and under the supervision of an officer of the Correctional Services Department in Mount Gambier.
I deal first with the appellant’s complaint concerning the charge of assault and the assertion that the magistrate sentenced on the basis of a joint enterprise. In my view, the submission overstates the reasons expressed by the Magistrate. When dealing with the charge of assault the magistrate said:
“You had a verbal altercation first. You pushed him over and others in your group then attacked him further. To your credit you did not do so, but it is apparent from the facts given to me, this was, in a sense, a joint enterprise and you started the ball rolling by pushing the victim over.”
It is to be noted in these ex tempore remarks of the magistrate that he interpolated the expression “in a sense” before referring to a joint enterprise. The appellant had pleaded guilty to the assault. He was in the company of others. The appellant pushed the victim to the ground and others had kicked the victim. To that extent, it was, as the magistrate says, in a sense a joint enterprise in that the appellant was a member of a group who had the altercation with and then attacked the victim. Mr Cuthbertson contended the magistrate should have warned the appellant that he intended to sentence on the basis of a joint enterprise and given the appellant an opportunity to call evidence or make submissions on that issue.
For reasons I have already expressed, I do not think it was necessary to do so because the magistrate acknowledged, by the use of the expression “in a sense”, that it was not technically a joint enterprise in the sense known to the criminal law. Furthermore, even if I were wrong in that conclusion, I do not think that there is any error in that it is very clear from the reasons of the magistrate that he has sentenced the appellant by reference to his limited involvement in the affray. There is, in my view, no merit in this ground.
The assertion that the magistrate had concluded that the starting point for the penalty for the assault was the sentence of six months is misconceived. It is based on a misreading of the Magistrate’s reasons. At the end of his reasons the magistrate draws all matters together and said:
“For the reasons given, on the assault file as the prime file, I think the starting point having regard to the nature of the offending is six months imprisonment, but because you pleaded guilty I am prepared to reduce that to four months.”
It is quite apparent that the magistrate was expressing what he believed was an appropriate sentence for all of the offending. He then reduced that to four months because of the plea of guilty. The reference to “the assault file as the prime file” is made for the purpose only of indicating the file on which the magistrate was intending to make the order. That is borne out by the fact that the magistrate referred to the assault file and not to the assault, as well as by the fact that the Magistrate’s order is endorsed in full only on the file for the complaint of assault. The files for the other three complaints simply refer to the file for the complaint for assault. Mr Cuthbertson was prudent in not pressing this ground.
The next ground is that the magistrate gave undue weight to the principle of general deterrence when sentencing for the breach of the bail agreement. When dealing with that offence he said:
“I point out to you a bail agreement is a serious matter and we see many cases in this Court where young men do not seem to take bail conditions seriously.”
Later in his reasons he refers to general deterrence in a passage which I will quote. The appellant’s complaint is that the magistrate gave undue weight to the fact that young men do not seem to take bail conditions seriously. It is manifestly clear that the magistrate was simply drawing on his experience in the Mount Gambier Court. The magistrate has long experience and was entitled to draw on it. There was nothing which supports the conclusion that he placed undue weight upon it, he simply referred to this as a relevant factor when determining the sentence. The appellant’s record justified a personal deterrent and the magistrate had proper reasons for a general deterrent. There is no weight in this ground.
The next ground is that the magistrate erred by punishing the appellant for a breach of the Griffiths remand. It is said that he determined that the existence of the Griffiths remand made general and personal deterrence appropriate. This is to overstate the position. It is necessary to put the Magistrate’s remarks in context. He said:
“You are on a Griffiths remand for a non-aggravated serious criminal trespass committed on 22 April 2001. The matter has been adjourned off and is next before the Holden Hill court before Mr Grasso SM on 20 February 2003. He has placed you on bail with supervision. You are under the supervision of a local Correctional Services Departmental officer with a condition that you obey lawful directions and generally undertake any courses or programs which may be reasonably required suggested by that supervising officer.
Given the nature and extent of your past offending, which has recurred since 1997 and given the existence of the Griffiths remand, I believe that the deterrent factor both personal and general is appropriate here. That deterrence factor should be in the form of a suspended sentence. I am told there is a possibility this will adversely affect the outcome of your matter with Mr Grasso. If that be the case, so be it. You well knew the importance of keeping out of trouble.”
When the Magistrate’s remarks are placed in context, it is clear the magistrate was referring to the Griffiths remand as but one of a number of factors which called for a sentence which had both general and personal deterrence. Again, I repeat that these were ex tempore remarks. The magistrate is referring to the Griffiths remand for the purpose of pointing out that the appellant was not prepared to mend his ways despite the fact that he was on bail in consequence of the Griffiths remand. The magistrate refers to it as but one of a number of factors which point to the conclusion that the appellant is not minded to comply with his lawful obligations.
Mr Cuthbertson submitted that the magistrate was wrongly punishing the appellant for his past behaviour. I do not agree. The magistrate was doing no more than simply reminding the appellant that he had a previous record and informing him that he could not deal with him as he might with a first offender. Further, it is clear that the magistrate did not intend to punish the appellant for a breach of the Griffiths remand. It is clearly implicit in the remarks of the magistrate that he was proceeding on the footing that the appellant would be punished later by Mr Grasso SM. This ground too is without merit.
The next ground of appeal concerns the offence of supplying two cones of cannabis in exchange for a Pentax camera. The appellant had been charged with receiving a Pentax camera and knowing it to have been unlawfully obtained. That charge was withdrawn. In his sentencing remarks, the magistrate said:
“You have also pleaded guilty to supplying cannabis on 18 July in the context of a swap for a Pentax camera. Although count one (receiving the camera) has been withdrawn, there is an element of dishonesty about the matters. It is not true in my respectful view, to submit as Mr Smith has done on his behalf, that these are all only ‘behavioural’ offences.”
Mr Cuthbertson submitted that the magistrate had punished the appellant on the basis there was an element of dishonesty involved in supplying the cannabis and had done so notwithstanding the withdrawal of the charge of receiving. The use of the word “dishonesty” is certainly curious, but I think that a fair reading of these remarks indicates that the magistrate was doing no more than dealing with the submission advanced on behalf of the appellant to the effect the appellant had succumbed to persistent overtures by persons to whom the cannabis was supplied in exchange for the camera. The word “dishonesty” has been used in contradistinction to the word “behavioural” used in those submissions. I think the magistrate was indicating there was a degree of criminality involved in this offending and that he was not prepared to accept the submissions which simply seemed to dismiss the conduct as behavioural, whatever that word might mean. There is nothing to suggest that he was sentencing the appellant on an incorrect factual basis.
I turn to the ground that the magistrate should have provided the appellant with another opportunity to rehabilitate him which carries with it also the submission that the sentence was, in all the circumstances, manifestly excessive. Mr Cuthbertson submitted that the nature of the offending in the case of each offence was at the bottom end of the scale. In his contention, the offending was not sufficiently serious to warrant a term of imprisonment at all or, if any term of imprisonment, a very short period of imprisonment. In his submission, aggregating what would be appropriate terms of imprisonment for each of the offences, it would not be possible to reach a total period of six months imprisonment.
There is no doubt that the court should strive to give a sentence which will keep young offenders out of prison, if that be possible: Stewart v Collins (1992) 58 SASR 291 at 293. That principle applies as much to offenders lawfully regarded as youths as to any young person. However, where a person repeatedly continues to offend despite earlier leniency and warnings, the time may come when the offender must receive a sentence of imprisonment to alert him to his obligations to the community.
Although this young man is only 22 years old, he has a number of previous offences. They include breaking and entering premises and larceny for which he had earlier received a suspended sentence of six months imprisonment. The offences also include disorderly behaviour and breaching bail on two earlier occasions. In addition, he has offended as a juvenile. He has been given warnings on a number of occasions. The Griffiths remand ordered on 22 April 2001 was a clear message to the appellant to mend his behaviour.
It is apparent from the passage already quoted from the Magistrate’s reasons that he took this view. He believed that the offending, when viewed in the context of previous offending and the failure to respond to opportunities for rehabilitation, called for a period of imprisonment. Furthermore, his discretion to impose a period of imprisonment was activated by reason of the fact that the appellant had previously been convicted of offences punishable by imprisonment: see s 11(1) of the Criminal Law (Sentencing) Act, 1988. At the same time, the magistrate has afforded the appellant yet another opportunity to establish himself as a responsible member of the community.
The sentence of six months imprisonment might be regarded by some as high for the nature of this offending. However, I do not think that it can be said that it is outside a proper exercise of the sentencing discretion. In my view, it was within the range of reasonable penalties for this offending. In my view, the sentence was not manifestly excessive. For these reasons, I would dismiss the appeal.
The orders will be as follows:
1.Extend the time within which to appeal to 14 January 2003.
2.Leave to the appellant to amend the Notice of Appeal by adding paras 5 and 6.
3.Appeal dismissed.

[2003] SASC 65

3 March 2003