Mason v Police - [2012] SASC 22

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MASON v POLICE
[2012] SASC 22
Judgment of The Honourable Justice Kelly (ex tempore)
17 February 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Appeal against sentence – appellant pleaded guilty to three counts of basic assault and one count of aggravated assault under s 20(3) of the Criminal Law Consolidation Act 1935 (SA) – Magistrate sentenced the appellant to four months imprisonment and declined to suspend the sentence – whether the Magistrate erred in not suspending the sentence either wholly or partially – whether the Magistrate failed to consider the question of partial suspension – whether the Magistrate failed to provide adequate reasons.
Held: appeal dismissed – Magistrate considered all relevant factors when deciding not to suspend the term of imprisonment – implicit in the Magistrate’s remarks that her consideration of the question whether to suspend the sentence included both full and partial suspension of the sentence – no error demonstrated – no basis for appellant court to interfere.
Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Crispin v Police [2009] SASC 210; Carter v Police [2011] SASC 199; Heubler v Police [2010] SASC 42; Fischetto v Police [2011] SASC 24; Sumner v Police [2004] SASC 158, considered.

MASON v POLICE
[2012] SASC 22
Magistrates Appeal: Criminal

KELLY J (ex tempore):The appellant in this matter pleaded guilty in the Holden Hill Magistrates Court to one count of aggravated assault and three counts of basic assault.
The charges arose out of one incident which occurred at the Gilles Plains shopping centre on 22 August 2010. On that date the appellant went to the shopping centre and parked in a disabled car park. The victim of the first count of aggravated assault observed Ms Mason drive into the car park and made a provocative comment to Ms Mason about that fact. The appellant took exception to the comments and spat at the victim and then pushed a chair at her. The chair did not make contact with the victim.
The second victim, an employee at the supermarket of the shopping centre, was called to the front of the store where he was confronted by a group of Aboriginal people yelling at staff members. He approached the group which included the appellant and asked them to leave. The appellant spat on the employee and the spittle landed on his jumper.
The victim of count 3 was a security guard working at the shopping centre who was called to assist with the removal of the appellant from the supermarket. Eventually he tried to restrain the appellant until the police arrived, during the course of which the appellant swung her head back and headbutted the victim with her head. The appellant kicked the security guard while she was being held down.
The victim of count 4 was another employee at the supermarket shopping centre. He had come to assist others with the removal of the group, including the appellant, from the store. The appellant spat at this employee and the spittle landed on his face.
Each of the basic offences of assault carries a maximum term of imprisonment of two years. The aggravated assault carries a maximum term of imprisonment of five years.
The Magistrate sentenced the appellant to four months imprisonment and declined to suspend the sentence. The appellant has now appealed on the ground that the Magistrate failed to consider whether whole or partial suspension of the sentence which she imposed was warranted under the provisions of s 38 of the Criminal Law (Sentencing) Act 1988 (SA).
The appellant is now 41 years old. She has 10 children, two of whom are still in her care. Several of the children are still dependent upon the appellant and I was informed at the hearing of this appeal that she is now expecting her 11th child.
Unfortunately the appellant’s antecedent history includes offences of dishonesty, some traffic and behavioural offences and three prior offences for assault. Those offences of assault bear some similarity to the present situation in that they occurred in shopping centres or shops and involved other members of the public or staff working in those shops. Although the appellant has no memory of the offending which occurred in April 2008, I am satisfied from the material placed before me that the appellant was properly convicted in relation to each of the prior offences of assault which were alleged on the antecedent report tendered before me, and I propose to deal with this appeal on the basis of that history and on the accuracy of that history. However, I do note that the appellant has not before been sentenced to a term of imprisonment.
The Magistrate rightly took a very serious view of the appellant’s behaviour. She said:
You have had some difficulties with the court over a lengthy period of time, however, they are the only offences involving violence. I consider that these offences are particularly serious given the circumstances in which they were committed. Your lawyer has submitted that I should release you on a good behaviour bond. I am not prepared to do so.
I consider this offending serious. I consider it is necessary to impose a penalty which deters not only you but other persons from committing similar offending. I consider a sentence of imprisonment is appropriate and I am not prepared to suspend the operation of the sentence, particularly given your previous convictions for violence and given the circumstances in which these offences occurred.
It is apparent from the Magistrate’s remarks that her Honour turned her mind to the relevant factors which might have led to suspension or at least a partial suspension of the sentence. Those factors included the fact that the appellant pleaded guilty; the extent of her antecedent record; her background, which also included the fact that she is an Aboriginal woman; and her family responsibilities which are not inconsiderable.
It is true, as the appellant’s counsel submitted, that the comment made by the elderly victim who remonstrated with her for parking in the disabled car park was provocative. However, the appellant’s response was completely out of proportion. Not only that, but her presence at the supermarket shortly thereafter, in company with a group of people yelling, must have been intimidating to all concerned. This was not the first time when the appellant has behaved in this manner in a public shopping centre.
Courts in recent years have taken a very serious view of offences which involve spitting. Not only is it a particularly degrading form of assault but as we now know it carries a serious risk of transmitting a number of infectious diseases.
General and personal deterrence must be important factors when sentencing for assaults of this nature. A review of the authorities in recent years reveals that sentences for offences involving spitting and similar forms of assault can vary greatly, attracting as little as two weeks imprisonment and as much as nine months imprisonment.[1] There has been a trend in recent years for courts to impose immediate custodial sentences for offences of spitting, however, there appear to be many instances where judicial officers have found good reason to suspend. It all depends, it seems, on the overall circumstances of the offence and the offender, particularly the latter.
[1] See for example Crispin v Police [2009] SASC 210, Carter v Police [2011] SASC 199, Heubler v Police [2010] SASC 42, Fischetto v Police [2011] SASC 24, Sumner v Police [2004] SASC 158.
It might be thought that a sentence here of four months in all of the circumstances was a severe one. However, the question for this Court is whether any error has been demonstrated in the approach of the Magistrate. It was submitted that the Magistrate did not properly consider whether the sentence should be fully or partially suspended. However, I cannot agree with that submission. A magistrate is not obliged to explicitly refer to every single consideration and to every single available alternative sentence when deciding to impose a particular sentence. In any event, it is evident that the Magistrate did turn her mind to the question of suspension. She referred to it twice and explained in sufficiently plain terms why she regarded it as inappropriate.
The Magistrate also accurately recounted the salient facts surrounding the commission of the offence. As I remarked earlier she did take a serious view of the offending. Appropriate credit was given for the pleas of guilty. It might be thought that a discount in the order of one third of the sentence was, in all of the circumstances, quite generous, as the plea was not entered at the first opportunity.
In my view the appellant has not demonstrated that the penalty is outside the available range of sentences which have been imposed for similar offending, in particular offences of assault which involve spitting on someone. I am mindful that in this instance the actions of the appellant were not momentary but involved spitting on no less than three people and headbutting an employee who was trying to restraining her. I accept, as the appellant’s counsel submitted, that the appellant may have perceived at the time that she was being choked while she was being held down. However, the officer was doing no more than trying to restrain her until the police arrived.
Some magistrates might, in the exercise of the discretion, have suspended the sentence. However, it was a relevant matter as the Magistrate noted that this is not the first incident of its type involving the appellant. It seems to me she was dealt with leniently by the Magistrate in relation to the past offences. However, this Magistrate, taking into account that history, obviously decided that the time had come for the appellant to face up to the consequences of her behaviour by the imposition of an immediate custodial sentence.
There has been no error demonstrated in the approach of the Magistrate to the exercise of the discretion whether or not to suspend. That being so, there is no basis for this Court to interfere. The appeal is therefore dismissed.