Mariner v Police
[2004] SASC 432
•21 December 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARINER v POLICE
Judgment of The Honourable Justice Besanko
21 December 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - EFFECTING ARREST
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER
Appeal against conviction and sentence - appellant convicted of assault occasioning actual bodily harm, resisting police, assaulting police, failing to state name and address and behaving in a disorderly manner - where the Magistrate sentenced the appellant to 12 months imprisonment with a non-parole period of 6 months to be served on top of a sentence of 12 months imprisonment with a non-parole period of 6 months imposed by a magistrate for other offending - whether the Magistrate erred in finding that self-defence was not open on the evidence - whether the Magistrate erred in finding that there was evidence capable of negativing a defence of self-defence - whether the Magistrate erred in concluding that the police constable was acting in execution of his duty - whether the police constable effected an unlawful arrest - whether the Magistrate erred in finding the appellant guilty of both resisting police and assaulting police - considerations of the principles of arrest - whether the Magistrate erred in finding that the appellant failed to state his name and erred in finding that the appellant had a reasonable opportunity to state his name - whether the sentence imposed by the Magistrate was manifestly excessive - appeal dismissed.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 ss 40, 15, 43; Summary Offences Act 1953 ss 6(2), 6(1), 74A, 7(1), 75, 78, 79A; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Christie v Leachinsky [1947] AC 573; Mackalley's Case (1611) 9 Co Rep 65b; Hull v Nuske (1974) 8 SASR 587; Hallion v Samuels (1978) 17 SASR 558; Barrington v Austin [1939] SASR 130; Hamra v Police (1999) 205 LSJS 172, discussed.
R v Stafford (1976) 13 SASR 392; R v Schutze & Cornelius (1994) 179 LSJS 418; Coleman v Power (2004) 209 ALR 182; Hermel v Police (2000) 76 SASR 336, considered.
MARINER v POLICE
[2004] SASC 432Magistrates Appeal
BESANKO J: This is an appeal against conviction and sentence. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
Andrew Mariner is the appellant and he appeals to this Court against five convictions recorded against him by a Magistrate. On 10th September 2004 the appellant was convicted of the following offences:
1.assault occasioning actual bodily harm (s 40 Criminal Law Consolidation Act 1935 (“CLCA”).
2.resisting a member of the police force in the execution of his duty (s 6(2) Summary Offences Act 1953 (“SOA”).
3.assaulting a member of the police force in the execution of his duty (s 6(1) SOA).
4.being a person reasonably suspected by a member of the police force of having committed an offence, namely, assault and, having been required by such member of the police force to state his full name and address refused or failed, without reasonable excuse (s 74A(3)(a) SOA).
5. behaved in a disorderly manner in a public place (s 7(1)(a) SOA).
The prosecution case was, and the Magistrate found, that all five offences were committed by the appellant at Glenelg on 8th April 2002.
On 10th September 2004 the Magistrate passed sentence for the five offences. After he had committed the subject offences on 8th April 2002 and whilst on bail for those offences the appellant committed an offence of assault occasioning actual bodily harm. On 28th May 2004 he was sentenced for that further offence to a period of 12 months imprisonment with a non-parole period of six months. That sentence commenced on 20th May 2004. On 10th September 2004 the Magistrate sentenced the appellant in relation to the five offences to one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“CLSA”), namely, a further 12 months imprisonment, ie., 12 months from the expiration of the existing sentence and he extended the non-parole period by six months so that the non-parole period is a period of 12 months from 20th May 2004.
Appeal against conviction
The Magistrate’s reasons
The Magistrate heard evidence from a number of witnesses called by the prosecution. The appellant did not give or call evidence. Subject to one matter which I will mention, the Magistrate appears to have accepted the evidence given by each witness called by the prosecution.
On 8th April 2002 Mr Neville Brown, who was 55 years of age, went to the Bay Motel Hotel on the Broadway at Glenelg to buy a lottery ticket. He parked his motor vehicle outside the hotel. He came out of the hotel and went to get into his vehicle. He saw the appellant and his companion, Shane Raymond Hilder, come out of the hotel and yell at him, “Are you a fucking pom too?”. Mr Brown ignored the appellant and got into his vehicle. He did not know the appellant or Mr Hilder. He saw the appellant and Mr Hilder get into a vehicle parked at the kerb. Mr Brown checked in his rear vision mirror for traffic and he activated his right indicator. He moved to a position halfway across the road when he detected that someone was jumping on the back of his vehicle and hitting the boot. He stopped his vehicle even though he was halfway through executing a U-turn. He got out of his vehicle. At this point he considered that Mr Hilder had been at the rear of his vehicle. As Mr Brown was getting out of his vehicle, Mr Hilder ran to the back of Mr Brown’s vehicle and started pushing Mr Brown back into the vehicle. Mr Brown pushed Mr Hilder back. At this point Mr Brown was partly out of the vehicle at a point around the middle of the vehicle and the driver’s side door was open. It seems that Mr Brown and Mr Hilder were pushing each other backwards and forwards. Mr Brown then saw the appellant alight from the vehicle he was in and run towards him. The appellant hit Mr Brown with his fist from a very low angle. Mr Brown saw the appellant’s fist at the last moment and moved his head backwards. He described the blow as a “glancing blow”. Mr Brown’s nose was broken.
On 8th April 2002 Mr Gregory Viles was the bar manager at the Bay Motel Hotel. He ejected Mr Hilder and the appellant from the hotel. He saw the incident involving Mr Brown, Mr Hilder and the appellant. However, the Magistrate said that Mr Viles’ observations were not as detailed as those of Mr Brown, and that he was not in as good a position as Mr Brown to see what was happening. He saw Mr Hilder jump up and down on the back bumper bar of Mr Brown’s vehicle. He described the appellant’s blow to Mr Brown as a “king hit”. Subject to one matter, his description of what occurred was almost identical to that of Mr Brown. The one difference was that he said that there were some punches thrown as between Mr Brown and Mr Hilder, whereas Mr Brown said that there were no punches thrown. The Magistrate preferred the evidence of Mr Brown on this point.
The Magistrate considered the defence of self-defence which is contained in s 15 of the CLCA. The potentially relevant part of that defence is “defence of another” and if the defendant raises the defence it is taken to be established unless the prosecution disproves it beyond reasonable doubt (s 15(5) CLCA). In effect, the prosecution must disprove beyond a reasonable doubt that –
(a)the defendant genuinely believed the conduct to which the charge relates was necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(See s 15(1) CLCA.)
The Magistrate said that the section talks wholly in subjective terms, a proposition which is not correct. There is an objective element in the section in that the conduct must be reasonably proportionate to the threat, although in the circumstances as the defendant genuinely believed them to be, and although the threat is such a threat as the defendant genuinely believed to exist. The Magistrate noted that there was no evidence from the appellant and that the possibility of the defence had been raised by the appellant’s counsel in his submissions. The Magistrate said that there was no evidence from which he could draw an inference that the appellant had any belief, let alone a genuinely held one. The Magistrate said he preferred the evidence of Mr Brown to that of Mr Viles and he found that there was no punching between Mr Brown and Mr Hilder. The Magistrate said that he did not accept that the appellant was acting in defence of Mr Hilder. He described the appellant’s blow as “totally unprovoked and unwarranted”. The Magistrate said:
“I find that count one is proved beyond reasonable doubt – that the defence of self-defence has been negatived; if indeed it has been raised.”
After striking Mr Brown, the appellant and Mr Hilder left the scene on foot. They were followed in a vehicle by Mr Viles and another man. Mr Viles contacted the police on his mobile telephone. They followed the appellant and Mr Hilder into Penzance Street and at that point, according to Mr Viles, the two men ran out and tried to kick the vehicle in which he was travelling. The police had arrived at this point and Mr Marriott, a police constable, said that he saw the appellant “trying to jump onto the back of a ute”. It is not clear whether Mr Viles and Mr Marriott were describing the same incident or separate incidents and the Magistrate, although noting the difference, did not say that he preferred one version of what was said to have occurred in Penzance Street to another. The Magistrate noted that Mr Viles was not cross-examined about the incident in Penzance Street. The Magistrate states said that disorderly behaviour refers to any substantial breach of decorum that tends to disturb the peace or interfere with the comfort of other people. He found that although the behaviour was very much at the lower end of the scale, it did constitute disorderly behaviour.
The Magistrate did not make detailed findings in relation to what transpired thereafter between the appellant and Mr Marriott. It seems clear that he accepted the evidence of Mr Marriott and the statement of facts which follows is taken from Mr Marriott’s evidence.
After the incident involving the vehicle in Penzance Street, the appellant ran off and he was pursued by Mr Marriott. Mr Hilder did not run off and Mr Marriott’s partner stayed with him. The appellant attempted to hide behind a low fence on a residential property in Penzance Street. He was on the ground. Mr Marriott approached him and told him to get up. He put his arm on the appellant’s right shoulder and said “Get upright”. The appellant said to Mr Marriott, “Fuck off, what have I done, I have done nothing.” The appellant got to his knees and then attempted to break free from Mr Marriott who by that time was holding the appellant by the right arm and was telling the appellant not to go anywhere. The appellant tried to push past Mr Marriott and run off. Mr Marriott held onto the appellant’s arms with both of his hands and a struggle ensued during which the appellant verbally abused Mr Marriott. The struggle continued for some time and at one point the appellant struck Mr Marriott with a clenched fist to the left side of his face. The appellant was sprayed with OC spray and handcuffed. He was then decontaminated with water and told by Mr Marriott that he was under arrest and he was informed of his rights. Mr Marriott asked the appellant to state his name. The appellant did not reply and Mr Marriott again asked the appellant to state his name. The appellant then said “Fuck off you cunt”.
The Magistrate found that prior to the appellant assaulting Mr Marriott, Mr Marriott did not intend to arrest the appellant, although he had reasonable cause to believe that the appellant may have been one of the persons involved in the assault on Mr Brown.
The appellant submitted to the Magistrate that he should not have been found guilty of the second and third offences (ie., the resistance and the assault) because at the time of the relevant acts Mr Marriott was not acting in the execution of his duty but rather he was effecting an unlawful arrest. The appellant submitted that there was an arrest because he was apprehended, but, he submitted, the arrest was unlawful because Mr Marriott did not inform the appellant that he had been arrested and of the offence for which he had been arrested. This argument was rejected by the Magistrate. He found that Mr Marriott was acting in the execution of his duty. The Magistrate said that Mr Marriott had a duty to investigate the circumstances surrounding the assault of Mr Brown and his approach to the appellant and his requests were carried out in the course of that investigation. The Magistrate said:
“He was not at that stage, as I have already mentioned, intending to arrest you. Whilst a police officer has the duty to inform a person as soon as reasonably practicable the fact that he or she is being arrested and the reason for that arrest, it is not always the case that a person can be told that before the physical act of arrest commences. In my view, this is just such a case. Given the way in which you reacted to the request by Constable Marriott to speak to you in relation to the circumstances that he was then investigating, Constable Marriott had no opportunity to indicate to you that he intended to arrest you until the time that he did.”
It is convenient to note in this context that a sixth charge against the appellant of assaulting Mr Marriott with intent to resist or prevent lawful apprehension or detention of himself for an offence (s 43(c) CLCA) was dismissed by the Magistrate.
In relation to the fourth offence the Magistrate said that the appellant had not given evidence and the issue had to be decided by reference to the evidence of Mr Marriott. He rejected the suggestion that the appellant had reasonable excuse for not stating his name because he did not have a reasonable opportunity to think in a clear fashion. Replying on the evidence of Mr Marriott the Magistrate found that by the time he made the request the appellant’s eyes had been decontaminated from the OC spray.
Issues on appeal
There are eight grounds of appeal.
The first two grounds of appeal relate to the first offence of assault occasioning actual bodily harm. First, it is said by the appellant that the Magistrate erred in finding that self-defence was not open on the evidence. That submission must be rejected. It is true the Magistrate doubted whether the defence of self-defence was raised, but nevertheless he did go on to consider it and to reject it. Secondly, it is said by the appellant that the Magistrate erred in finding that there was evidence capable of negativing a defence of self-defence. The submission here is not that the Magistrate erred in preferring the evidence of Mr Brown to that of Mr Viles about whether punches were thrown. Such a submission would in any event be rejected because there is nothing to suggest that the Magistrate was not entitled to prefer the evidence of Mr Brown to that of Mr Viles. The submission by the appellant is that if Mr Viles thought punches were being thrown, albeit mistakenly, then it is reasonably possible that the appellant thought that punches were being thrown. I reject that submission. The appellant was not in the same position as Mr Viles and bearing in mind the Magistrate’s finding that there was in fact no punching, there is no reason to think that the appellant was mistaken in thinking that punches were thrown. In any event, there is a more important reason for rejecting the challenge to the Magistrate’s decision on this point. There is no dispute that the attack was started by Mr Hilder and even if the appellant did mistakenly believe that punches were being thrown there was no evidence suggesting that Mr Brown was getting the better of the exchange. Furthermore, there were a number of other measures which the appellant could have adopted to defend Mr Hilder if he had genuinely believed that that was necessary. He could have called on Mr Brown to desist; he could have pulled Mr Hilder or Mr Brown away; he could have grabbed Mr Brown and prevented him from throwing further punches. I have come to the firm conclusion that it was not a reasonable possibility on the evidence that the appellant was acting in defence of Mr Hilder, and it follows that the Magistrate was right to conclude that the prosecution had disproved the defence of self-defence beyond reasonable doubt.
The challenge to the Magistrate’s decision in relation to the first offence must be rejected.
The third, fourth and fifth grounds of appeal relate to the second and third offences and to the Magistrate’s conclusion that in the case of each offence Mr Marriott was acting in execution of his duty. It is said that the Magistrate erred in concluding that Mr Marriott was acting in execution of his duty. It is said that Mr Marriott effected an unlawful arrest, and therefore it could not be said that he acted in the execution of his duty. For its part the respondent did not seek to uphold the Magistrate’s reasoning. The respondent sought to argue that Mr Marriott was effecting a lawful arrest, and was therefore acting in the execution of his duty.
The appellant put an alternative submission in relation to the second and third offences. He submitted that in the circumstances of this case he could not be guilty of both resisting Mr Marriott in the execution of his duty and of assaulting Mr Marriott in the execution of his duty. As I understand it, it is said that there was but one act and it was not permissible to find the appellant guilty of two offences in relation to the one act.
Section 75 of the SOA gives a police officer the power without any warrant other than the Act to apprehend a person he or she has found committing, or has reasonable cause to suspect of having committed or of being about to commit, an offence. Section 78 provides for how a person apprehended without a warrant is to be dealt with and s 79A provides for a person apprehended to be advised of certain rights which he or she has as soon as is reasonably practicable after apprehension. At common law, a person has a right to be told that he or she is being arrested and of the offence which he or she is suspected of having committed (Christie v Leachinsky [1947] AC 573 per Viscount Simon at 586 – 589) and the common law principles apply to an arrest effected under s 75 SOA (R v Stafford (1976) 13 SASR 392). There are exceptions to the principle that the cause of the arrest must be made known to the person arrested in order to make the arrest lawful. In Christie v Leachinsky (supra) Viscount Simon said (at 586 – 587):
“Hale’s Pleas of the Crown (vol II c 10, p 82), dealing with arrest by a private person on suspicion, says, ‘note that in all arrests ‘he must acquaint the party with the cause of his arrest.’ Archibald’s Metropolitan Police Guide (7th ed.), p. 713, is a more modern book which affirms that the general rule is that, in arresting without warrant on suspicion, the person making the arrest, whether constable or private person, should at the time state on what charge the arrest is being made. The propositions laid down in the text books are supported by judicial decisions, to some of which I will briefly refer. What is particularly noteworthy is that in many of these decisions an exception to the general rule is explained and justified, and this indirectly establishes what the general rule is. For example, in Mackalley’s case (1), the decision of the Star Chamber in the Countess of Rutland’s case (2), was followed to the effect that it is not necessary to state the ground of arrest when the party makes resistance before the person arresting him ‘can speak ‘all his words.’ Mackalley’s case (1) arose out of an arrest based on a plaint of debt which led to the debtor and his friends resisting the official arrester with fatal results, and it was ruled that ‘an officer making an arrest, ought to show at whose suit, ‘out of what court, and for what cause he made the arrest, ‘when the party arrested submits himself to the arrest, ‘but not when the party resists.’ In Rex v Howarth (3), it is laid down that there is no need to tell a man why he is being arrested when he must, in the circumstances of the arrest, know the reason already. Another qualification may be gathered from the decision of Rex v Ford (4), to the effect that it is not necessary for a person making an arrest to state the charge in technical or precise language.”
The respondent submits that the exception where a person makes resistance is relevant in this case. The exception where a person makes resistance is of ancient origin. In Mackalley’s Case (1611) 9 Co Rep 65b; 77 ER 828 it was said (at 69a; 835):
4. It was objected, that the said arrest found by the verdict was not lawful, for the sergeant in this case ought to have, when he arrested him, shewed at whose suit, out of what Court, for what cause he made the arrest, and in what Court it is returnable, to the intent, that if it be for any execution, he might pay the money and free his body; and if it be upon mean process, either to agree with the party to put in bail according to the law, and to know when he shall appear, as it is resolved in the Countess of Rutland’s case in the Sixth Part of my Reports, f.54. But in the case at Bar the serjeant said nothing but ‘I arrest you in the King’s name, at the suit of Mr Radford,’ and so the arrest not lawful, and by consequence the offence is not murder. As to that it was answered and resolved, that it is true that it is held in the Countess of Rutland’s case, that the sheriff, &c or serjeant ought upon the arrest to shew at whose suit, &c (H) but that is to be intended when the party arrested submits himself to the arrest, and not when the party (as in this case Murray did) makes resistance and interrupts him, and before he could speak all his words, he was by them mortally wounded and murdered, in which case, the prisoners shall not take advantage of their own wrong. It was also resolved, that if one knows that the sheriff, &c has process to arrest him, and the sheriff &c coming to arrest him, the defendant to prevent the sheriff’s arresting him, kills him with a gun, or any other engine, or weapon, before any arrest made, it is murder; a fortiori, in the case at Bar, when he knew by the said words, that the serjeant came to arrest him.”
The issue of a defendant’s right to know he is being arrested and of the act for which he is being arrested was considered by Walters J in Hull v Nuske (1974) 8 SASR 587 in a context in which it was said that the defendant was so affected by alcohol that he could not hear or understand what was being said to him. Walters J said (at 594 – 595):
“In the present case, the only ground for saying the appellant did not know that he was being arrested, and for what offence, is that he was so far gone in drink that he did not hear or understand what the police officer said to him.
Assuming for the purposes of the present case that such were the position, nevertheless I do not think that a person whose mental faculties are so impaired by an intake of alcohol as to be incapable of knowing what the arresting officer is saying to him, or of knowing that he is being arrested for an offence, is entitled to complain of unlawful arrest for the reasons advanced by counsel. I see no difference in principle from the position which would obtain in the case of a police officer arresting a deaf person, or a person who has no knowledge of the English language.”
The appellant submits that he was not formally arrested in the sense of being advised that he was under arrest and of the acts for which he was being arrested until after the OC spray had been applied and he had been handcuffed. However, he was apprehended some time earlier when Mr Marriott placed his arm on his right shoulder, or at least by the time Mr Marriott was holding him by the right arm. In other words, the appellant submits that from this point he was in fact apprehended or subject to a de facto arrest. The apprehension or de facto arrest was unlawful because the appellant was not advised that he was under arrest and of the acts for which he was being arrested, and it followed therefore that Mr Marriott was not acting in due execution of his duty before the formal arrest.
I think the appellant was apprehended at the point when Mr Marriott was holding him by the right arm and the type of difficulties that sometimes arise as to whether a person has been apprehended do not arise in this case (R v Schutze & Cornelius (1994) 179 LSJS 418 per King CJ at 424 – 426). In my opinion, the clear tenor of Mr Marriott’s evidence is that by that time he intended to arrest the appellant and I think he had reasonable cause to suspect the appellant of having committed the assault on the Broadway. I appreciate that the Magistrate appears to have found that Mr Marriott did not intend to apprehend or detain the appellant until after he was assaulted by the appellant. However, this appeal is a rehearing (r 97.17 of the Supreme Court Rules 1987) and it seems to me to be clear reading Mr Marriott’s evidence as a whole that upon seeing the appellant hiding behind the low fence, Mr Marriott formed an intention to arrest the appellant.
The question is whether the facts of this case fall within the exception to the general principle where a party resists arrest. I think that they do. The appellant was trying to hide by lying on the ground behind a fence. Mr Marriott wanted him to stand up. That was not unreasonable. Almost immediately a situation developed where the appellant was abusive and trying to flee. In those circumstances, I do not think the appellant can complain of the delay between the act of apprehension and the provision to him of advice that he was under arrest and the offences for which he was under arrest. The delay was caused by the appellant’s own conduct.
I turn now to deal with the appellant’s alternative submission in relation to the second and third offences. The broad principle which the appellant seeks to invoke is that a man is not to be punished twice in relation to the same set of facts. The principle was discussed by Bray CJ in Hallion v Samuels (1978) 17 SASR 558 in the context of conduct alleged to constitute resisting police officers and assaulting police officers. Bray CJ said (at 563 – 564):
“A man’s resistance to arrest may take the form of assaulting the police officers attempting the arrest; it may take other forms such as a mere refusal to move. If the resistance to arrest alleged is simply the use of force against the police officers, then the defendant cannot be convicted both of assault on them and of resistance to arrest.
…
In my view the true proposition, instead of the one in the headnote, should read as follows;
‘Where a defendant has been charged upon two counts, first resisting a police officer in the execution of his duty, and second, assaulting a police officer in the execution of his duty contrary to s 6 of the Police Offences Act and the acts alleged to constitute the resistance are the same as the acts alleged to constitute the assault, a conviction on one charge is a bar to a conviction on the other.’
In a case like this questions of fact and degree are involved. In my opinion in this case there was clearly recognisable conduct constituting resistance before the appellant assaulted Mr Marriott. I reject the appellant’s alternative submission.
I reject the challenge to the Magistrate’s conclusion in relation to the second and third offences.
The sixth and seventh grounds of appeal relate to the fourth offence. It is said that the Magistrate erred in finding that the appellant failed to state his name, and erred in finding that the appellant had a reasonable opportunity to state his name to the police. It is submitted that in all the circumstances, including the use of OC spray, the appellant did not have a reasonable opportunity to state his name. I have read Mr Marriott’s evidence carefully and I think the Magistrate’s conclusion was correct. As I have said, before being asked his name the appellant was told his rights upon arrest and he made certain replies which I think clearly show that he understood what Mr Marriott was saying to him. It is not necessary for me to go through each of Mr Marriott’s statements and the appellant’s responses. The fact is I think it is clear that he understood what was being said by Mr Marriott. I reject the challenge to the Magistrate’s conclusion in relation to the fourth offence.
The eighth ground of appeal relates to the fifth offence of behaving in a disorderly manner in a public place. The appellant’s submission was that the Magistrate erred in finding that the appellant’s behaviour constituted a substantial breach of decorum. In Barrington v Austin [1939] SASR 130 Napier J (as he then was) said (at 132):
“There is no ground for the suggestion that the words used to describe the various acts forbidden by the section are mutually exclusive, and I have no doubt that these words, ‘disorderly behaviour,’ refer to any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, the street or public place.”
(See Coleman v Power (2004) 209 ALR 182 per Gleeson CJ at [12].)
In Hamra v Police (1999) 205 LSJS 172 Debelle J said that it would be a sad day if behaving in a ridiculous manner necessarily constituted disorderly conduct. I agree, although, clearly, behaviour may be both ridiculous and disorderly.
The appellant and Mr Hilder were fleeing the scene of a serious assault. Mr Viles and another person were following them in a vehicle. The appellant “attacked” the vehicle by trying to kick it or to jump on it. I think that conduct does constitute conduct which is a substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, Penzance Street, although I agree with the Magistrate that it is conduct which is very much at the lower end of the scale. I reject the challenge to the Magistrate’s conclusion in relation to the fifth offence.
Appeal against sentence
The Magistrate’s reasons
The Magistrate’s remarks on sentence are brief but they seem to me to deal with the relevant matters. He referred to the nature of the offences, and in particular, the two assaults. He described the first assault as an unprovoked assault which left an innocent member of the public with significant injuries. He referred to the appellant’s criminal record including four convictions for assault or assault occasioning actual bodily harm for which various terms of imprisonment, some suspended, had been imposed. As I have already said, the appellant committed the offence of assault occasioning actual bodily harm whilst on bail in relation to the subject offences. The Magistrate noted that there was to be no reduction on account of a plea of guilty.
Issues on appeal
The appellant submits that the sentence was manifestly excessive and that the Magistrate erred in imposing one penalty pursuant to s 18A of the CLSA.
All of the offences carried a maximum penalty of a term of imprisonment. The first offence carried a maximum penalty of imprisonment for five years. The second offence carried a maximum penalty of $2,500 or imprisonment for six months, and the third offence carried a maximum penalty of $10,000 or imprisonment for two years. Each of the fourth and fifth offences carried a maximum penalty of $1,250 or imprisonment for three months.
The Magistrate did not err in imposing one penalty pursuant to s 18A of the CLSA in relation to offences which did not provide for a penalty of imprisonment as all the offences provided for a penalty of imprisonment (see Hermel v Police (2000) 76 SASR 336). However, the appellant submits that the Magistrate erred in not considering the appropriate penalty in relation to each offence. He submits that some of the offences would not (or should not) result in the imposition of a term of imprisonment. That proposition is correct, but ultimately the question for me, in a case in which it was open to the Magistrate to impose one penalty pursuant to s 18A of the CLSA, is whether the penalty imposed by the Magistrate is manifestly excessive. I do not think the sentence is manifestly excessive. The assault on Mr Brown was a serious assault. Mr Brown was going about his business in a normal manner and he did nothing to provoke the assault. He was not known to the appellant. Mr Brown was outnumbered two to one. The assault on Mr Marriott was also a serious assault. The appellant had a bad record for offences involving violence. He committed an offence involving violence whilst on bail for the subject offences.
I do not think the sentence imposed by the Magistrate is manifestly excessive.
Conclusion
I dismiss the appeal against conviction and the appeal against sentence.