MARINER v Police

[2008] SASC 80

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

MARINER v POLICE

[2008] SASC 80

Judgment of The Honourable Justice Debelle (ex tempore)

20 March 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS

Appeal against sentence – appellant pleaded guilty to assault, property damage, indecent language and resist arrest – appellant sentenced to imprisonment for 3 years with non-parole period of 19 months – sentence suspended upon appellant entering bond to be of good behaviour – whether sentence was manifestly excessive –- sentencing discretion miscarried – appeal allowed – appellant sentenced afresh – head sentence reduced to 2 years and 6 months with non-parole period of 16 months.

Criminal Law Consolidation Act 1935 s 20(3), s 85(3); Criminal Law Sentencing Act 1982 s 18A, s 19(3); Summary Offences Act 1953 s 6(2), 22(1)(c), referred to.
Hermel v Police (2000) 76 SASR 336; Miller v Police (2007) 96 SASR 240, applied.

MARINER v POLICE
[2008] SASC 80

Magistrates Appeals

1. DEBELLE J:        This appeal against sentence is some 11 months out of time. The applicant applies for an extension of time within which to appeal. The respondent does not oppose that application. I have already ordered that the time within which the appeal should be instituted should be extended to 7 December 2007, the date on which the notice of appeal was filed.

2. On 7 December 2006 the appellant pleaded guilty in the Adelaide Magistrates Court to five offences, each of which had been committed on 25 October 2006. The five offences were

   1Intentionally applying force directly to a woman contrary to s 20(3) of the Criminal Law Consolidation Act1935 (“the Act”). It was alleged that the offending was aggravated by the fact that the appellant knew that he was assaulting his de facto spouse;

   2Intentionally and without lawful authority damaging a front door and window of a house contrary to s 85(3) of the Act;

   3Intentionally and without lawful authority damaging a motor car contrary to s 85(3) of the Act;

   4Using indecent language that was audible in a public place contrary to s 22(1)(c) of the Summary Offences Act1953;

   5Resisting a police officer in the execution of his duty contrary to s 6(2) of the Summary Offences Act.

   The appellant was unrepresented at the hearing. The magistrate sentenced the appellant to imprisonment for a period of three years with a non-parole period of 19 months. The magistrate suspended that sentence on the appellant entering into a bond to be of good behaviour for a period of three years.

3. The appellant has listed a number of grounds in his notice of appeal. One is sufficient to dispose of the appeal and that is the ground that the sentence was, in the circumstances, manifestly excessive.

4. The offending was serious. At about 3.45 pm on the afternoon of 25 October 2006 the appellant had become involved in an argument with his de facto spouse. He was then very intoxicated. He punched his spouse in the face. She then collected their children and ran from the house. The appellant grabbed her by the hair in the front yard and pushed his wife to the ground and held her in a headlock.

5. The appellant then went back inside.  He came back out and chased his spouse across the road. He again pushed her to the ground. He was also seen to kick her in the stomach with his right foot. A neighbour attempted to intervene, but he ran into difficulty with the appellant who by this time had gone back to the house and obtained some bolt cutters and was raising them in a threatening manner. The neighbour believed that the appellant was going to throw them at him or at the appellant’s spouse. The neighbour then went inside and locked the door. Another neighbour had called the police.

6. The appellant went to the front door of the first neighbour and banged on the screen door and window with the bolt cutters causing damage.  After the police arrived the neighbour went outside and saw that the appellant had also caused damage to his motor car.

7. It seems that at one time in the course of this offending the appellant had chased his spouse across the street with the bolt cutters. When the police arrived, they saw that the appellant was extremely intoxicated and abusive. The appellant shouted abusive language and profanities which were readily audible. The police advised the appellant he was under arrest. The appellant resisted arrest by swinging his arms and making his body rigid. The police arrested him by wrestling him to the ground and handcuffing him.

8. The appellant is aged 38 years. He was 36 years at the time of the offending. He has a very poor history. It includes a number of offences involving assaults on persons ranging from common assault to assault occasioning actual bodily harm. He has been convicted for driving under the influence of alcohol and driving with an excessive blood alcohol level.  The appellant is, of course, not to be punished for his prior offending. However, that offending does prevent him from expecting any mercy in respect of any penalty for the offending on 25 October.

9. As a result of the assaults on her, the appellant’s spouse suffered a swollen nose and lacerations to the mouth. There is no victim impact statement.

10. When sentencing the appellant, the magistrate gave him credit for his pleas of guilty. He did not, however, state what credit had been given.

11. Furthermore, when sentencing the appellant, the magistrate did not in any respect indicate how it was that he had determined upon a sentence of three years’ imprisonment for this offending.

12. It is apparent from the sentencing remarks that the magistrate was exercising the powers in s 18A of the Criminal Law (Sentencing) Act 1982. This was particularly appropriate in this case because all of the offending had arisen out of one course of conduct by this appellant.  However, when determining the appropriate sentence, the magistrate had to have regard to the fact that the offence involving the use of indecent language is not an offence which attracts a term of imprisonment and due allowance had been made for that fact: Hermel v Police (2000) 76 SASR 336.

13. Notwithstanding the fact that the magistrate was sentencing pursuant to s 18A, it was appropriate for him to spell out the basis upon which he had determined the sentence giving some indication of the penalty he believed appropriate for each of the offences. In making that observation I do not overlook the fact that the magistrate, no doubt, had a heavy list and was endeavouring to dispatch it with due expedition. Nevertheless, it is important that at least brief reasons be given to indicate the basis upon which the sentence has been determined. In this case there is no indication of any kind as to how the magistrate determined upon a sentence of three years.

14. The power of a magistrate to impose a term of imprisonment is limited by the terms of s 19(3) of the Sentencing Act. The magistrate does not have any power to impose a sentence which exceeds a period of two years in respect of any one offence. It does appear, however, that the magistrate may impose a sentence of more than two years where there has been more than one offence: Police v Miller (2007) 96 SASR 240.

15. If one considers the limits upon the power of the magistrate to impose a sentence of imprisonment as well as the course of offending in this case and the individual offences, it is difficult to see how it is possible to determine that three years’ imprisonment is appropriate for this offending. That difficulty is compounded by the fact that credit was to be given for the appellant’s plea of guilty.  I will in a moment spell out what I believe is an appropriate sentence for each offence. It will be apparent that it is not possible to conclude that the sentence should be as high as three years. For that reason, the sentencing discretion has miscarried and I therefore sentence the appellant afresh.

16. The assault in this case was serious. The appellant caused injury to his de facto spouse. It is not difficult to imagine that she was terrified by reason of the fact that he chased her holding bolt cutters.  That only serves to aggravate the seriousness of this offending. Although that has not been charged as an aggravating feature, it is nevertheless relevant when considering the overall penalty.  Her fears and apprehension would have been the greater because the appellant was very drunk and thereby less inhibited and more disposed to violent behaviour.

17. Although the appellant assaulted his spouse, her injuries were not severe. In my view an appropriate penalty for this assault would have been a period of two years and six months. The magistrate allowed a reduction for the appellant’s plea of guilty. I would, therefore, reduce the sentence for the assault from two and a half years to two years to reflect that reduction.

18. There were two separate incidents of causing damage to property. The damage was not unduly severe. The magistrate ordered the appellant to pay $1,028 to the owner of the damaged property.  Even if one were to regard this as two separate incidents, it is not possible in my view to impose any higher penalty than six months’ imprisonment for those two offences. In reaching that period of imprisonment I would have ordered a sentence of four months’ imprisonment on each but reduced that to three months on each to reflect the plea of guilty.

19. On the offence of using indecent language, it would be appropriate to convict the appellant without penalty given that this was one course of conduct. The offence of resisting a police officer in the execution of his duty involving the police having to wrestle the appellant to the ground could not attract a high sentence of imprisonment.  The total of the sentences so far amounts to two years and six months.  Given that this is one course of offending, I would not add to that period of imprisonment in respect of this particular offence.

20. For these reasons, I would allow the appeal.  I reduce the head sentence to a period of two years and six months imprisonment.  It is necessary, therefore, to fix a new non-parole period. I fix a new non-parole period of 16 months imprisonment.  In all other respects, the orders made by the magistrate on 7 December 2006 stand.