McIntyre v Police No. Scgrg-00-561

[2000] SASC 275

McINTYRE v POLICE
[2000] SASC 275

Magistrates Appeal

1................ PRIOR J:........................ This is an appeal against sentences imposed in the Magistrates Court. The appellant was charged on information with assault occasioning actual bodily harm and, on complaint, with failures to comply with a bail agreement, giving a false name and address and assaulting and resisting police.

1. The assault matter first came before the court on 4 January; the other matters on 28 March, the day following the commission of those alleged offences.

2. The appellant pleaded guilty to the assault charge on 7 April, after four appearances with respect to that charge.  In May, the other matters were the subject of pleas of guilty to two breaches of the Bail Act 1985 and breaches of s 74A(3) and s 62 of the Summary Offences Act 1953. Two charges of assaulting police were withdrawn. Submissions were made with respect to the admitted offences on 18 May. The appellant had remained in custody from 28 March.

4................ The prosecutor told the magistrate that with respect to the assault occasioning actual bodily harm offence, the appellant and the victim, a Mr Allsop, had been out drinking at a friend’s house. Early in the morning of 8 December 1999, the two men returned to Allsop’s unit where an exchange occurred between them after the appellant’s budgerigar was discovered dead in the hallway. The appellant, thinking Allsop had deliberately stepped on the bird, punched Allsop several times to the head, causing Allsop’s nose to break and cutting the inside of his mouth in a number of places.  Allsop was treated at the Flinders Medical Centre where he had to have 19 stitches inserted into his mouth. He also had nine stitches in the face. He was kept overnight for observation.

1. Coincidentally, the police had attended Allsop’s premises on an unrelated matter at about 9 in the morning of 8 December. They then observed Allsop’s injuries, called for an ambulance and pursued inquiries next door, where the appellant was. He was arrested, interviewed at the Christies Beach Police Station and charged. He admitted the assault, saying that, having been drinking that night, he just lost it, when he returned to Allsop’s unit to discover the  budgerigar dead. He told police he was very sorry for his actions and that he wanted to apologise to the victim.

2. As to the charges arising out of events which occurred on 27 March, the prosecutor told the magistrate that as a result of the assault charge, the appellant had entered into a bail agreement, a condition of which was that he was not to attend at, or be in the vicinity of Allsop’s unit, nor to approach or harass him. Nevertheless, he went to Allsop’s unit twice on 27 March.  Police were called, being told that the appellant had gone to Allsop’s house and threatened to kill his girlfriend, who was there then.

3. Shortly after the police left, the appellant breached the bail agreement a second time by returning to Allsop’s home, coming to the front door and yelling abuse.  The magistrate was told that the appellant was also in breach of his bail agreement because he resided next door to the appellant’s unit at the house of his girlfriend’s mother and not at an address specified in the bail agreement.

4. The police were called back to the premises a second time, some 15 minutes after they had left on the first occasion. The appellant was found in a nearby reserve within 15 metres of Allsop’s front door. He was then in the company of his girlfriend.  When requested to provide his full and correct name, he gave that of his brother. Upon his arrest, the appellant attempted to run off. He had to be brought to the ground and restrained after a struggle.

5. The magistrate was given a list of the appellant’s antecedents and a Victim Impact Statement. Amongst the long list of previous convictions were convictions for damaging property and common assault, which attracted a sentence of imprisonment of two months in November 1997. Most of the appellant’s previous appearances before courts were before children’s courts with respect to property offences. In 1990, the appellant admitted to a series of larceny and other property offences, as well as a charge of robbery with violence. With respect to the robbery with violence matter, however, no conviction was recorded.

6. At the same time as that matter was dealt with, the Children’s Court imposed a fine of $50 for a failure to comply with a bail agreement. The appellant had been in breach of a bond by the 14 offences dealt with in November 1997 and, in 1994, was convicted in the Children’s Court of hindering or resisting police, as well as giving a false name and address.

7. There was a conviction recorded on 27 October 1999, with respect to carrying an offensive weapon. This offence occurred some three days before parole expired on 18 April 1999, that offence being the subject of a $100 fine and forfeiture order. The parole was with respect to a total sentence of 19 months, with a non-parole period of 10 months, imposed in November 1997 with respect to drinking and driving offences, apart from the two months imposed for the property damage and common assault matter already mentioned.

8. The appellant’s counsel made submissions to the magistrate identifying the factual basis for the plea of guilty to the assault charge. The magistrate also had the benefit of a pre-sentence report and a psychiatric assessment. The appellant’s counsel in the court below says that she had informed the prosecutor that she would invite the magistrate to suspend any period of imprisonment that might be imposed and, that the prosecutor informed the magistrate that he did not oppose a suspended sentence.

9. The appellant’s counsel says that she told the magistrate of the appellant’s relationship with a young woman, 16 years of age, in 1999. She says that she told the magistrate that whilst the appellant was in custody in that year, Allsop had sexually assaulted this woman. This allegation was made in the presence of Allsop and the young woman. The appellant’s counsel claimed that the appellant and Allsop discussed the sexual assault of the appellant’s girlfriend on the day of the assault offence and then said a number of things which were provocative to him.

10. It was also put to the magistrate that Allsop had stepped on the appellant’s budgerigar during the argument and that the appellant struck Allsop as a result of built-up anger over the allegations involving the girlfriend and the appellant’s immediate anger over the death of his bird, which had been flying around the house during the argument.

11. The magistrate was told that the appellant felt immediate remorse over his actions and that he rendered some assistance to Allsop before going home to the house next door. The appellant’s counsel said that about a week after the appellant was released on bail, Allsop approached him seeking to resolve their differences and resume friendship with the appellant agreeing, notwithstanding his bail conditions.

12. It was put that the appellant thought that as Allsop was consenting to contact with him, no harm would be done. The magistrate was also told that Allsop told the appellant that he knew that the appellant was not meant to have contact with him and, that if the police found out he would get the appellant locked up, unless he was paid some money. The appellant did give Allsop money. Receipts were issued. The appellant’s counsel said that these receipts had been shown to the prosecutor who had, in turn, shown them to Allsop, who agreed that the monies were paid as alleged.

13. Notwithstanding the passage of this money, the appellant and Allsop continued to spend time together and attend each other’s places of residence. The appellant’s counsel also claimed that Allsop told the appellant that he had been assaulted in the past and had received compensation. It was said that this was why Allsop was reluctant to withdraw any charges against the appellant. It was put that Allsop had informed the appellant he expected to “make some thousands of dollars in criminal injuries compensation for what the appellant had done to him”.

14. Counsel said that Allsop had said that, when the matters were disposed of, he would get the money and treat the appellant and his girlfriend to a holiday with the proceeds.  The magistrate was told that the conversations had been taped and that the prosecution was aware of this.

15. As for the breach of bail agreement incident occurring on 27 March, the appellant’s counsel told the magistrate that nothing untoward occurred between the appellant and Allsop at that time. As for the police exchange, the false name was not to avoid detection but because the appellant thought that it would concern the police that they had just arrested the wrong person after using considerable force.

16. The appellant’s counsel said that the appellant accepted that it was wrong for him to do this. Alcohol was proffered as the explanation for his judgment being blurred and his overall behaviour that day.

17. As for the appellant’s antecedents, the appellant’s counsel submitted that the appellant had only been imprisoned with respect to matters in 1997 and for a breach of his parole after that. It seems that the Parole Board issued a warrant in January 1999 for breach of conditions. The appellant served four months and one day pursuant to s 74 of the Correctional Services Act 1982, from the date of the execution of the warrant in July 1999.

18. The appellant acknowledged that alcohol was a cause of his offending and that none of the matters then before the court would have occurred but for that. The magistrate was urged to find good reason to suspend any sentence of imprisonment given the totality of circumstances and the appellant’s intention to take more positive steps with respect to his drinking problem.  Reference was made to the limited counselling opportunities available to offenders in custody and to the fact that the appellant had completed some courses whilst in custody.

19. In his sentencing remarks, the magistrate described the appellant as a 23-year-old man with a long history of criminal offending. The magistrate acknowledged that most of the appellant’s previous offending involved acts of dishonesty, driving offences and behavioural offences but referred, in particular, to the appellant’s previous convictions for “offences involving violence and offences against police”.

20. The magistrate referred to the appellant’s appearance in the Elizabeth Magistrates Court in 1997 for offences of damaging property and assault, which attracted an imprisonment of two months. His Honour also referred to the appearance in the Elizabeth Children’s Court in May 1994 when a conviction was recorded for hindering or resisting police with respect to which the appellant was then ordered to perform 56 hours of community service.

21. After referring to the appellant’s longstanding alcohol problem and some of his family history, the pre-sentence report and the psychiatrist’s report, the magistrate then referred to the submission that a suspended sentence of imprisonment should be allowed. As to this, the magistrate said:

    “Apparently that is not opposed by the prosecution. I think it should have been strenuously opposed. I say that because according to the pre-sentence report over the past few years you have breached parole conditions, bond conditions and community service orders. You have also failed to complete any of the programs, including anger management and alcohol and drug awareness programs which you commenced.”

After referring to the certificate with respect to Alcohol Awareness sessions and Anger Management sessions attended whilst in custody, the magistrate said:

“The fact that you have repeatedly breached orders imposed by the court and other authorities does not instil much, if any confidence in the likelihood of you changing your ways in the immediate future. I appreciate that you have expressed a desire to take your responsibilities far more seriously this time, but I am not persuaded. Apart from that I think the offences and particularly the Assault Occasioning Actual Bodily Harm offence committed against a background of a prior conviction for an assault when you were ordered to be imprisoned, to be too serious to allow for a suspended sentence of imprisonment.”

The magistrate then said whilst fixing penalty, he had regard to pleas of guilty, allowing an overall reduction of two months “from the sentence because of the appellant’s guilty pleas”.

1. The magistrate then imposed a sentence of imprisonment for 12 months for the assault occasioning actual bodily harm charge and a sentence of one month for the four offences committed on 27 March. A total head sentence of 13 months resulted from an order that the sentence of one month’s imprisonment be cumulative upon that of 12 months. The magistrate fixed a non-parole period of 10 months commencing on the same date as the sentence for assault occasioning actual bodily harm, 28 March 2000.

2. In this appeal, it is said that the total sentence of 13 months imprisonment is manifestly excessive and the non-parole period, as a proportion of the overall head sentence, also manifestly excessive. It is further claimed that the magistrate erred in failing to suspend the term of imprisonment or, in the alternative, to partially suspend it.

3. Of course, the power to partially suspend pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 was not available given the sentences the magistrate imposed. Section 38(2a) refers to that power being applicable only to a period of imprisonment more than three months, but less than one year and where no cumulative sentence of imprisonment is imposed.

4. The appellant claims that the magistrate has given too much weight to the appellant’s previous offending. Likewise, it is said that the magistrate failed to properly address the circumstances within which the offences occurred.

5. It is suggested that there was an element of provocation in the assault matter. It was also put that the magistrate should have taken greater notice of the submissions made with respect to the attitude of the victim.

6. I think that sentences of imprisonment were appropriate for these offences. I think the magistrate was entitled to decline to find good reason to suspend the sentences of imprisonment. It was within his sentencing discretion to make the sentences cumulative.

7. However, I do think that the magistrate has given undue weight to the appellant’s previous criminal record and failed to recognise that the majority of that offending did not involve personal violence and occurred when the appellant was not an adult.  The total sentence of 13 months seems just too high for me. 

8. Exercising the sentencing discretion afresh, I would impose a sentence of eight months for the assault matter and a sentence of one month for the other matters.  I thought that it might be appropriate to contemplate an exceptional order that the sentences of imprisonment be concurrent rather than cumulative. Ordinarily, the sentences should not be concurrent but there is a particular relationship between the two occasions that makes consideration of a concurrent sentence appropriate. However, at the end of the day, I am persuaded by what counsel for the respondent has put to me.  These sentences should be cumulative.  The fact is that the police should not encounter these sorts of difficulties with this sort of an offender. This was not the first occasion when this appellant had created difficulties for the police when he should not have.

9. I therefore allow the appeal, set aside the total sentence of 13 months and the non-parole period of 10 months, substituting a sentence of eight months imprisonment for the assault occasioning actual bodily harm and for the other matters, a sentence of one month imprisonment cumulative upon the sentence of eight months. It remains for the appellant to consider whether any application should be made pursuant to s 37A of the Correctional Services Act with respect to the further time that he must presently spend in custody.