LYME v POLICE No. SCGRG-98-929 Judgment No. S6843

[1998] SASC 6843

LYME V POLICE

[1998] SASC 6843
Magistrates Appeal
Perry J (Ex tempore)
1 The appellant appeals against the sentences imposed upon him in the Magistrate's Court sitting at Elizabeth, on admitted charges of assault occasioning actual bodily harm and breach of bond.
2 The assault charge alleged that the appellant on 6 December 1996 at Para Hills, assaulted another man, Robert John Rooney, occasioning him actual bodily harm, contrary to s40 of the Criminal Law Consolidation Act, 1935.
3 The learned sentencing magistrate imposed a sentence of four months imprisonment on that charge.  That offence operated as a breach of bond, upon which a sentence of two months imprisonment had been suspended.  The learned sentencing magistrate activated the suspended sentence, and made an order that both sentences be served cumulatively, giving a total head sentence of six months imprisonment. 
4 In his notice of appeal the appellant complains that the learned sentencing magistrate erred in refusing to obtain a pre-sentence report, and in failing to give sufficient weight to a number of other considerations set out in the notice.
5 Upon the hearing of the appeal, Mr Peter Waye, who appeared for the appellant, made it clear that the thrust of the appeal was directed towards persuading this Court that the proper course for the learned sentencing magistrate to have taken was to deal with the activated offence in such a way as to avoid the imposition of a custodial term of imprisonment, and to have suspended the sentence for the assault charge.  As a fallback, Mr Waye contended that the four months imprisonment was, in any event, too long, and that any term of imprisonment for the assault charge should have been made concurrent with the activated sentence. 
6 The appellant was aged twenty-seven years at the time when he was before the court below, which was in July this year.  The delay between the assault offence committed in December 1996 and sentencing was remarked upon by the learned sentencing magistrate, who could find no clear explanation for it on file.  It does appear, however, that initially the appellant pleaded not guilty, whereupon on 22 April 1998, the matter was listed for trial on 6 July 1998.  The appellant's plea of guilty was not entered until the matter was called on for trial that day. 
7 The appellant had a long history of prior offending, dating back to offences recorded against him while he was a juvenile, commencing in 1982.  Since then he has accumulated a depressing record of crimes of dishonesty, including larceny and breaking and entering, illegal use of motor vehicles, and assaults of various kinds, including indecent assault, common assault and other offences. 
8 It was on 10 April 1996 that the appellant was sentenced in the same court, that is the Elizabeth Magistrate's Court, to a total of two months imprisonment for the offences of resisting police and driving a motor vehicle whilst disqualified.  That sentence was suspended upon his entry into a good behaviour bond for a period of two years.
9 It was eight months later when the offence now under consideration was committed, that is in December 1996, which of course operated as a breach of the bond upon which the previous sentence was suspended. 
10 According to the affidavit of the police prosecutor who appeared in the court below, the victim, a young man aged twenty-seven years, went with friends to the Para Hills Football Club at Para Hills.  A little before midnight, while he was making his way to the toilet, he had to make his way around part of the crowd which was drinking in the bar.  The next thing he knew he had been punched, and ended up under a table.  When he got up, his nose was sore and bleeding.  He went to Lyell McEwin Hospital where he was diagnosed with a broken nose and a fractured right cheekbone.  He was unable to identify the appellant as the assailant, but the appellant was interviewed almost a year later in October last year.  Although he declined to answer any questions, as I have indicated he eventually pleaded guilty.
11 It appears that the appellant has been a State representative in the Amateur Football League, and has been involved in coaching others, including junior players, an activity with which, according to Mr Waye, he is still involved.  He had responsibilities to the Para Hills Football Club which accounts in part at least for his presence there on the night in question, which was some sort of fund raising evening. 
12 The learned magistrate was informed that the appellant was disturbed by the crowd around him, and had been seen to remonstrate with a number of people wishing to move past him or otherwise jostling or pushing at him.  The learned sentencing magistrate clearly enough treated the assault as otherwise unprovoked.
13 Some further information, however, as to the background circumstances, appears from an affidavit of the appellant which, by consent, was admitted on the hearing of the appeal before me.  In that affidavit he states that he was standing at the corner of the bar and that the victim was in a group, the other members of which there were two others called McKenzie and Pollard.  He said that on several occasions during the night he was pushed by McKenzie and Pollard, and at least on one occasion he had shouted to them, "Piss off, stop pushing me."  He says further that before punching Rooney he had again been pushed in the back, (he does not identify by whom).  He then went to push Rooney, whereupon McKenzie grabbed him in a headlock and forced his head down.  He admits to biting McKenzie's arm as a result of which McKenzie let the appellant go. 
14 The affidavit continues:
"I stood up and Rooney was standing in front of me and I punched him in the right cheek bone with a clenched fist.  He was facing me.  It was done without thinking and was spontaneous.  Rooney and I both then fell on a table and my left hand hit a glass and smashed it.  I received a laceration on the side of my left hand which required three stitches."
15 The stitches were inserted at Modbury Hospital later that evening.
16 As the learned sentencing magistrate commented, the appellant had had steady employment, albeit in a succession of jobs, for a long time.  More recently he had established a relationship with a woman who had responsibility in turn for two children of tender years.
17 As for the revocation of the suspended sentence, the learned sentencing magistrate commented:
"In my view there is nothing in this offence, nor in your conduct between April 1996 and December 1996, nor since, that would require or oblige the court to in fact seriously consider not requiring you to serve the two months imprisonment.  I have no doubt that in April 1996 you were well aware of your responsibility ... to be of good behaviour.  Your record and this instance mitigates very strongly against any leniency."
18 As for the substantive offence, that is, the offence of assault occasioning actual bodily harm, the learned sentencing magistrate indicated that were it not for the plea of guilty, he would have imposed a sentence of six months imprisonment.  In view of the plea he discounted this to four months imprisonment, that is, a deduction of one-third.  That was a substantial deduction given the lateness of the plea.  Be that as it may, the learned sentencing magistrate went on to direct that the two sentences, that is, the activated sentence and the sentence for the breaching offence, be served accumulatively. 
19 At the outset of his submission, Mr Waye submitted that there was some provocation, not in the technical legal sense, defence to a charge of murder, but in the sense that there were provocative actions on the part of the group of three young men in which the appellant was present.  I accept from the affidavit put before me today that there was some jostling and some pushing, and furthermore the incident involving the appellant's friend, McKenzie certainly could be regarded as to a degree provocative. 
20 As for the complaint that the learned sentencing magistrate erred in failing to direct that a pre-sentence report be obtained, there will certainly be occasions upon which such a failure might be regarded as significant, possibly even indicative of appealable error.  However, in the circumstances of this case, given that the appellant was represented by a person who has been described as a very experienced and competent law clerk, and given the fact that it appears from the record that full submissions were put on the part of the appellant none of which were placed under challenge, it could not be said that the failure to obtain a pre-sentence report is material for present purposes. 
21 Mr Waye pointed to the undoubted fact that there was a long lapse of time between the commission of the offences which resulted in a suspended sentence and the later offence being the assault charge now in question which, as I have said, was committed on 6 December 1996.  The suspended sentences on the other hand were with respect to offences committed on 9 September 1993, over three years beforehand.  That is certainly a matter to be taken into account. 
22 Mr Waye also emphasised the football activities with which the appellant has been involved.  They must go to his credit as matters of background.  Although the appellant has a long history of prior offending, most of that was as a juvenile.  Mr Waye submitted that since adulthood most of the offending has ceased.  Mr Waye further emphasised that the assault was of a spontaneous nature and erupted against a background of the actions on the part of the appellant and those with which he was associating to which I have referred.
23 One matter which is of some importance is the assertion, which has not been denied by Mr Muscat, who appeared for the respondent, that the learned sentencing magistrate was informed by Senior Constable Gallie, who was the prosecutor in the court below, that the victim, Mr Rooney did not wish the appellant:
'To suffer a period of imprisonment in relation to the offence'. 
24 Mr Waye also pointed to the difference in the nature of the offending which constituted the breaching offence as opposed to the offending which was the subject of the suspended sentence.  In that connection he drew attention to the remarks of King CJ in Lawrie  where King CJ observed that the learned sentencing judge in that case:
"...may not have appreciated the significance which the difference in kind between the breaching offences and the original offences possesses for the purpose of determining whether there are proper grounds for refraining from revoking the sentence.
It is true, of course, that difference in kind is only one of the considerations.  In many cases it will not be a consideration of great importance, but where the difference in kind is combined with a disproportion between the seriousness of the breaching offence and the length of the sentence, the activation of which is in question, the difference in kind becomes of greater importance.'
25 In the same case I observed
"To excuse or vary the consequences of the breach of bond, the grant of which resulted in the suspension of a term of imprisonment, has a tendency to undermine the integrity of the sentencing process generally.  It follows that the power to do so should be exercised sparingly, and only in cases where proper grounds have clearly been made out, or where genuinely special circumstances exist."
Properly understood, the dictum of King CJ to which I have referred, means that the difference in the nature of the breaching offence, as opposed to the original offence is a matter to be taken into account, is only a relevant consideration where there would be a disproportion between the activated sentence and the gravity of the breaching offence. 
26 Here the reverse would seem to be true.  If anything, the breaching offence was more serious than the offence which resulted in the suspended sentence. 
27 In those circumstances, it does not seem to me that the fact that the breaching offence was different in kind is a matter which carries the appellant far in his argument that the suspension of the earlier sentence should not have been revoked. 
28 For these reasons, in my opinion, there is no error disclosed which should lead this Court to interfere with the order that the suspended sentence be activated.
29 However, it seems to me that the imposition of four months imprisonment for the offence now in question, that is the offence of assault, coupled with the action of the learned sentencing magistrate, in directing that it be served cumulatively upon the activated sentence, is indicative of error. 
30 While it is true that Mr Waye has not been able to point to any passage in the extempore remarks as to penalty delivered by the learned sentencing magistrate, it seems to me that the overall punishment must be regarded as severe to the point that it is disproportionate to the overall offending. 
31 In reaching that view, I would not wish it to be thought that I would not, as was the case with the learned sentencing magistrate, regard the circumstances of the assault as other than serious.  But on the other hand, particularly having regard to the matters set out in the affidavit, which was filed and which was put before me this morning, the assault should not be considered in isolation, but regard should be had to the events which led up to it, including the action of McKenzie in placing the appellant in a headlock.  Furthermore, a matter which does not appear to have been given proper weight by the learned sentencing magistrate, is the attitude of the victim in indicating that he did not wish to see the appellant go to gaol.
32 In all the circumstances, I think that the appropriate sentence for the assault should have been two months imprisonment, and that it would have been proper for that to be directed to be served concurrently with the activated sentence.
33 I hasten to add that the circumstances in which it would be right to direct such a course, that is that a sentence for a breaching offence be served concurrently with an activated sentence will be rare.  I bear in mind, in that respect, the observations made by King CJ in the case of Kain .
34 The appeal will be allowed for the purpose of substituting for the sentence of four months imprisonment, a sentence of two months imprisonment on the offence of assault occasioning actual bodily harm.  The reduced sentence of two months imprisonment is to be served concurrently with the sentence of two months imprisonment activated by the breach of bond. 
35 The respondent will pay the costs of the appellant of and incident to the appeal which I fix at $150, plus the filing fee.