Maier v Police - [2004] SASC 367

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MAIER v POLICE
Judgment of The Honourable Justice White
19 November 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - ABNORMAL MENTAL CONDITION
POST AND TELECOMMUNICATIONS - POSTAL SERVICES - OFFENCES
Appellant pleaded guilty to 18 offences of using a carriage service to harass - Offences consisted of ringing women and asking about their underwear - Magistrate sentenced appellant to 18 months imprisonment, suspended after eight months upon appellant entering into a bond - Appellant had prior record of offences involving offensive telephone calls - Appellant suffered from a series of mental and physical health disorders - Sentence unduly severe - Magistrate gave insufficient weight to appellant's mental condition and doctor's report as to effect of imprisonment - Offences could be properly described as a single course of conduct - Appellant had now spent six weeks in custody - Appellant re-sentenced to imprisonment for 18 weeks, suspended upon entering into a bond including a term that the appellant perform community service.
Magistrates Court Act 1991 (SA) s 42; Crimes Act 1914 (Cth) s 4B, s 4K, s 19AC, s 20, s 85ZE; Summary Offences Act 1953 (SA) s 41, referred to.
Mason-Stuart v The Queen (1993) 61 SASR 204, considered.

MAIER v POLICE
[2004] SASC 367
Magistrates Appeal
WHITE J
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), against a sentence imposed by a Magistrate in the Victor Harbour Magistrates Court on 4 August 2004.
The appellant pleaded guilty to eighteen offences of intentionally using a carriage service (the telephone) with the result that another person was harassed, contrary to s 85ZE(1)(a) of the Crimes Act 1914 (Cth), and to one offence of unlawful possession, contrary to s 41(1) of the Summary Offences Act 1953 (SA). Each of the offences against s 85ZE(1)(a) of the Crimes Act carried a maximum penalty of 1 year imprisonment. Section 4B of the Crimes Act empowered the Magistrate to impose fines either in the alternative, or in addition to, a sentence of imprisonment. The offence of unlawful possession carried a maximum penalty of $10,000 fine or imprisonment for two years.
In relation to the Commonwealth offences, the Magistrate imposed, pursuant to s 4K of the Crimes Act, a single sentence of imprisonment of 18 months. But for the appellant’s guilty pleas he would have imposed a sentence of 20 months imprisonment. Pursuant to s 20(1)(b) of the Crimes Act, he ordered that the appellant be released after serving eight months of that sentence, on the condition that the appellant enter into a recognizance in the sum of $1000 to be of good behaviour for the unexpired balance of the period of imprisonment, namely ten months. In relation to the offence of unlawful possession, the Magistrate convicted the appellant and ordered that he enter into a bond to be of good behaviour for a period of three years.
The appellant appeals against the sentence imposed for the Commonwealth offences only. The appellant argues first that the sentence of imprisonment is manifestly excessive and secondly that the Magistrate erred in failing to suspend the sentence.
Background Facts
The offences arise out of conduct of the appellant between 10 August 2003 and 2 December 2003. The appellant made some 26 telephone calls to nine separate people, all of whom were local Victor Harbour women. On none of the occasions did the appellant identify himself to the women.
During some of those telephone calls the appellant said nothing, while in others he asked what colour underwear the victim was wearing. He told the women that he had in his possession underwear belonging to them, or that he wanted their underwear, or asked them where their underwear was, the implication being that some items were missing. The appellant commonly said, “I have your knickers and bras”, or asked “where are your knickers and bras?” In some cases, the appellant asked to speak to his victims by name, or called them by their names.
One of the appellant’s victims was a mother whose daughter was in the same school class as the appellant’s son. Another was the mother of a boy who was friendly with the appellant’s son. A third was the teacher of the appellant’s son in 2003. The appellant also rang secretaries at a medical practice and at a dental practice, the appellant having been a client of both of those practices. He also called the secretary at a real estate firm, and an employee of a local supermarket.
The appellant was interviewed by police on 5 November 2003 in relation to the offences involving the mother of the friend of the appellant’s son. On 20 December 2003, the appellant was interviewed in relation to the offences involving the secretary of the dental surgery. In relation to the other offences, the appellant was interviewed on 24 March 2004. The appellant made his telephone call to the teacher after his first interview with the police. The other offences had all been committed before that first interview.
The Appellant’s Antecedents
The appellant, who was 35 years old at the time of the offending, has a history of making offensive phone calls. In each of 1991 and 1992 he was convicted for the offence of using a telephone to menace or harass, and in 1997 he was convicted for five offences committed in March and April 1996 of using the telephone to menace or harass. Fines and good behaviour bonds were imposed for those offences. The appellant also has two prior convictions for indecent behaviour and two prior convictions for offensive behaviour.
Appellant’s Health and Intellectual Capacity
The Magistrate received, by consent, a medical report from the appellant’s general practitioner, Dr Batt, together with letters provided to Dr Batt by two psychiatrists and one clinical psychologist. That material indicated that the appellant was of borderline to low intelligence, and that he had a complicated medical history. He suffers from epilepsy, diabetes, hyperlipidemia and depression. A diagnosis of bipolar disorder and manic depression had been made in 1998. The appellant also suffers from obesity, weighing in August 2004 approximately 142kg.
The appellant is treated with reasonably high dosages of an antidepressant. His behaviour is said to be marked by impulsivity. The medical practitioners consider that he has limited coping resources and, in particular, limited cognitive behavioural control. The appellant has a history of recurrent overdoses and self mutilation.
The appellant has been unemployed for some time. He is in receipt of a disability pension on account of his medical conditions. Dr Batt, who has been treating him for five years, considers it unlikely that he will be able to gain useful employment.
In addition to a regime of medication, the appellant sees Dr Batt on a four six-weekly basis for the purposes of supervision, counselling and encouragement. From time to time, Dr Batt arranges psychiatric or psychological review, although it would seem that the last such review was approximately three years before the subject offending.
The absence of any offending by the appellant in the period April 1996 to August 2003 is perhaps some measure of the success of the treatment regime. Dr Batt, who is aware of the appellant’s offending in 2003, has said:
“In view of these offences, I feel that [the appellant] does need some psychological review with both a psychologist and a psychiatrist on an ongoing basis and will seek to arrange this in the near future. He definitely needs to continue his medication and he has been quite compliant with this as evidenced by his attendance and by measurement by blood tests and this needs to continue on a regular monthly basis.
Obviously this has been a series of serious offences and [the appellant] needs to be seriously dissuaded from doing this in the future but it is my opinion that a custodial sentence would be severely disruptive to [the appellant’s] rehabilitation and highly likely to precipitate a significant deterioration in his condition such that we might expect a recurrence of overdose and self mutilation attempts. I agree with the comment of Dr Tom Paterson in February 2000 that [the appellant’s] mood swings contribute significantly to his impulsive behaviour and overdoses and I think that psychiatric review with perhaps an additional medication could provide some extra benefit. I think something that occupied [the appellant’s] time could well be useful and it is my opinion rather than a custodial sentence, some significant community service which [the appellant] was required to attend will be much more beneficial for him and for society.”
The Magistrate’s Decision
The Magistrate said that he regarded the appellant’s offending as amongst “the most serious group of offences of its type that have yet come before a court of summary jurisdiction.”In lengthy ex tempore reasons, he reviewed the material which had been put before him by both the prosecution and by the appellant’s then counsel. The Magistrate was particularly concerned to impose a sentence which would have the effect of deterring the appellant from conduct of a similar kind in the future. The Magistrate said:
“The submission from the prosecutor with which I agree is that this is at the very serious end of the scale of offences of this type. … The principles remain that deterrence is required … you are a menace to society and your local community … the victims of your offences are entitled to protection. They are entitled to feel that there is no threat to them or members of their family as they perceive themselves to one degree or another liable to be in the future.”
He concluded that the only sentencing measure which was appropriate was the imposition of a sentence of imprisonment. The Magistrate said that he would have imposed a period of 20 months imprisonment but reduced that to 18 months on account of the appellant’s plea of guilty. Pursuant to s 20(1)(b) of the Crimes Act he ordered that the appellant be released after serving eight months of that 18 month period upon him entering into a bond in the sum of $1,000.00 requiring him to be of good behaviour for a period of 10 months.
General Principles on Appeals against Sentence
The principles to be applied by an appellate court in determining whether it is appropriate to interfere with the exercise of a sentencing discretion are well understood. I should interfere with the sentence only if I am satisfied that the sentencing Magistrate has acted upon a wrong principle, has allowed extraneous or irrelevant considerations to affect his decision or has failed to take into account some material consideration. If the sentence is, on the facts of the case, unreasonable or plainly unjust, I may also interfere. That is because, in such a case I would be entitled to infer that in some way there has been a failure of the Magistrate properly to exercise his discretion.
Submissions on Appeal
It was submitted that a sentence of 18 months was manifestly excessive for a number of reasons.
First, it was submitted that the Magistrate had taken into account, in the case of one of the victims, the feeling of violation which she experienced in thinking that the appellant had been in her yard and around her house. It was said that this was inappropriate as there was no allegation that the appellant had in fact been in the yards or in the vicinity of the homes of any of the victims. Secondly, it was submitted that the Magistrate had not paid sufficient regard to the appellant’s medical condition and in particular the opinion of Dr Batt which I have quoted above. The Magistrate had, in the ex tempore reasons, referred to Dr Batt’s report but he had not, so the submission ran, considered the significance of the appellant’s condition, and Dr Batt’s opinion in coming to his decision.
Thirdly, it was submitted that whilst the appellant had an unfortunate history of offending, he had never previously been sentenced to imprisonment. He had not therefore ever previously experienced the salutary effect which a sentence which is suspended has on a defendant. Fourthly, it was submitted that the discount for the plea of guilty, being 10 per cent, was inadequate. Finally, it was submitted that independently of identified errors, a sentence of 18 months imprisonment, following a starting point of 20 months, for these offences was excessive.
Consideration of the Offences
In my opinion, the appellant’s offending had a number of aggravating factors. These included the repetitive nature of the conduct, the fact that there were nine different victims, the fact that the last telephone call occurred after the appellant was spoken to by the police, the appellant’s record, and the fact that many of the victims were known to the defendant. The Magistrate had evidence of the reaction of some of the victims to the calls: in general they regarded them as offensive and some victims had feelings of fear and apprehension which may readily be understood.
The Sentence of Imprisonment
In my opinion, the sentence of 18 months imprisonment imposed by the Magistrate is unduly severe. Whilst the Magistrate was correct in identifying the aggravating features of the offending, and whilst he was correct in stating the importance of considerations of personal deterrence in this case, the Magistrate failed, in my opinion, to have adequate regard to the appellant’s mental condition. The appellant’s mental condition, and his psychiatric state, explain, in part, the commission of these offences. The appellant’s impulsivity and his limited cognitive behavioural control appear, at least in part, to be manifestations of the conditions from which he suffers. This was a case in which it was appropriate, in my opinion, for the Court to reduce the sentence on account of the appellant’s mental state. In Mason-Stuart v The Queen (1993) 61 SASR 204, King CJ said of a defendant of low average intelligence with a substantial degree of diminished responsibility that
“… the degree of the appellant’s subjective responsibility is so diminished by the damage to the brain which he has suffered, that a court must try to find some way of protecting the public which does not impose the heavy burden of a long period of imprisonment upon a person whose subjective responsibility has been so diminished. It is a problem of reconciling the mercy which ought to be shown to a person whose subjective moral responsibility is low with a need to protect the public from this sort of act of which the appellant was guilty. The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public, is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be.”
The evidence in this case does not go so far as to say that the appellant suffers from diminished responsibility. I am however satisfied that the period of imprisonment which is required in the present case to bring home to the appellant the wrongfulness of his conduct is less than would have been the case had he not suffered from the conditions described by Dr Batt.
I consider that the sentence of imprisonment of 18 months is unduly severe for two further reasons. First, I consider that considerable weight should have been attached by the Magistrate to the opinion of Dr Batt that a custodial sentence would be severely disruptive to the appellant’s rehabilitation and would be highly likely to precipitate a significant deterioration in his condition. There was no challenge to the validity of that opinion before the Magistrate. Given the conditions outlined, the regime of treatment in place and the apparent relative success of Dr Batt’s treatment, that opinion required, in my view, substantial weight in the Magistrate’s exercise of the sentencing discretion. The sentence imposed in this case does not seem to reflect that.
Secondly, although the appellant was charged with 18 separate counts, each count involved conduct of substantially the same kind. This really was a case in which it could be said that the appellant had engaged in a single course of conduct. In my opinion, in fixing a single sentence pursuant to s 4K of the Crimes Act, regard had to be had to the fact that a sentence was being imposed for 18 separate counts, but that at the same time, each of those counts formed part of a single course of conduct.
These considerations, in combination, lead me to the view that the sentence imposed by the Magistrate is unduly severe. That makes it unnecessary for me to consider the remaining grounds relied upon by the appellant.
Reconsideration
The Magistrate was correct in my opinion in concluding that a custodial sentence was appropriate in this case. In my opinion, the gravity of the present offending considered against the background of the appellant’s prior offending and of the considerations of personal and general deterrence indicate that a sentence of imprisonment of 30 weeks would be appropriate as a starting point. Mr Oates, who appeared for the respondent, agreed that the appellant’s plea of guilty had been indicated on the first return date for the offences. I would therefore reduce that notional starting point to 24 weeks on account of the appellant’s plea of guilty.
As a result of the Magistrate’s order, the appellant was placed in custody. The appellant remained in custody until 14 September 2004 when he was released on bail pending the appeal. This means that the appellant has spent, in effect, six weeks in custody already. I will give credit for that six week period, which reduces the head sentence to 18 weeks.
Taking into account the opinion of Dr Batt to which I referred above regarding the effect of service of a period in custody on the appellant’s rehabilitation, and the fact that he has now spent some six weeks in custody, I consider it appropriate, pursuant to s 19AC and s 20(1)(b) of the Crimes Act to order that the appellant be released upon his entering into a recognizance in the sum $1,000.00 to be of good behaviour for a period of two years on the following terms:
1.That he be supervised by a Community Corrections officer and that he obey all lawful directions generally, and in particular, that he attend from time to time at such place or places as shall be the subject of any direction with respect to assessment, counselling and/or treatment for any mental health disorder.
2.The appellant is not to make contact directly or indirectly, personally, by writing, by telephone or otherwise, with any of the females whose names appear in the complaint during the period of the bond.
3. The appellant is to carry out 120 hours of community service.
Conclusion and Order
Accordingly, for the reasons given, the appeal is allowed. I make the following orders:
1.     The appeal is allowed.
2.The sentence imposed by the Magistrate on 4 August 2004 in respect of the 18 offences against s 85ZE(1)(a) of the Crimes Act 1914 is set aside.
3.In lieu thereof, pursuant to s 4K of the Crimes Act, I enter a conviction on each of the 18 counts but impose one penalty of imprisonment for a period of 18 weeks.
4.That the appellant be released forthwith upon his entering into a recognizance in the sum of $1,000.00 on the following terms:
(a)     That the appellant be of good behaviour for a period of two years.
(b)    That during that period the appellant be supervised by a Community Corrections officer and that he obey all lawful directions given to him by that officer, including directions with respect to attendance from time to time and at such place or places with respect to assessment, counselling, and/or treatment for any mental health disorder from which he may be regarded as suffering.
(c)    That the appellant not make contact directly or indirectly, personally, by writing, by telephone or otherwise, with any of the females identified in the complaint and summons containing the 18 counts, during the period of two years.
(d)     That the appellant perform 120 hours of community service.