McQuade v Police

[1999] SASC 277

McQUADE V POLICE

[1999] SASC 277

Magistrate’s Appeals 

1. MARTIN J. (Ex tempore) The appellant, who is 27 years of age and was unrepresented, pleaded guilty to charges of assault occasioning actual bodily harm, common assault and damaging household furniture. In respect of the offence of assault occasioning actual bodily harm, which was committed on 30 June 1998, the magistrate imposed a penalty of 100 hours community service, to be performed within twelve months. Fees and costs totalling $132 were also imposed. On the other two charges, which were committed on 19 July 1998, his Honour imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, that the defendant perform 100 hours of community service within six months. Fees and costs totalling $174 were also imposed.

2. The sentence was imposed on 12 April 1998.  The notice of appeal was filed on 24 May 1999.  The Crown did not oppose an extension of time within which to appeal and time was extended accordingly. 

3. In essence the ground of appeal against sentence complains that the magistrate erred in having insufficient regard to the appellant's drug use and psychological functioning, and that he erred in requiring community service, while not ordering that the appellant be subject to some form of supervision with counselling and treatment.   In addition, it is said that there was an error in the sentencing process because the magistrate failed to advise the appellant of his right to apply to the magistrate for the exercise of the discretion not to record a conviction. 

4. All offences arose in the context of a difficult and strained family situation.  Over a period of time, the relationship between the appellant and his parents had deteriorated.  The appellant was experiencing considerable difficulty in controlling his anger. 

5. On 30 June 1998, the appellant had a disagreement with his brother which became physical.  In a fit of anger he began to damage a vehicle with the handle of a hydraulic jack and swung the handle at his brother who put up his left arm to protect himself.  The handle struck the victim's wrist and chipped a bone.  That action is the basis of the offence of the assault occasioning actual bodily harm.

6. On 19 July 1998, at the family home, an argument developed between the appellant and his father.  The appellant left the home, but entered a cottage on the property and damaged an old washing machine in the cottage.  There were further words between the appellant and his father at the cottage.  Later the appellant returned to the home in an angry state of mind and damaged more property.  He also picked up a broom handle and struck his father on the leg with the handle.  A later inspection of the cottage disclosed further damage to the cottage and property within it.  The total damage was approximately $730.

7. After the appellant had pleaded guilty and had been remanded while a pre-sentence report was obtained, the appellant's father wrote to the magistrate and to the police prosecutor setting out a number of matters that he asked be taken into account.  Attached was a letter from the family medical practitioner which set out something of the recent behaviour of the appellant within the family and expressed the view that the deterioration in the appellant's behaviour might be the result of drug abuse or the early signs of a psychotic mental illness.  The medical practitioner recommended that the appellant receive counselling and that the court impose a condition of a bond that the appellant attend at both family and individual therapy.  The medical practitioner expressed the opinion that unless the appellant received such assistance, there was a risk that his behaviour would become more dangerous, both to himself and to his family.  The magistrate did not make any reference to that material. 

8. His Honour had the assistance of a pre-sentence report which he said he took into account.  That report was very helpful.  It discussed the deterioration in the relationship between the appellant and his family and the frustration that was currently being experienced by the appellant.  It referred to the difficulty the appellant was experiencing in controlling his anger and to his admission that he currently uses amphetamines on a casual and 'as available' basis.  The appellant also told the officer preparing the report of his severe depression when a previous relationship had ended. 

9. The report observed that the underlying causes for the appellant's behaviour might be a good deal more complex than the matters to which the report referred and that they were beyond the scope of the report.  The appellant was assessed as suitable for both supervision by a probation officer, where referrals for drug and alcohol and anger management programs could be made, and for community service.  The report clearly demonstrated an urgent need for counselling and assistance.

10. As mentioned, the appellant was unrepresented in the Magistrates Court.  He has no prior convictions.  The circumstance of the offences were clearly not trifling, but they occurred against the family background I have outlined and in the context of the particular emotional and psychological difficulties being experienced by the appellant. 

11. In my opinion, this was a case where consideration should have been given to the possibility of not recording a conviction.  The appellant should have been advised of the availability of that option and of his right to ask the court to exercise its discretion in that manner.  It is unclear whether his Honour considered that option, but there is no dispute that the appellant was not advised of it. 

12. Obviously, whether a failure to advise an unrepresented offender of the availability of such an option amounts to an error in the sentencing process will depend upon the circumstances of each case.  In this matter, the offending was very much towards the lower end of the scale of seriousness and the members of the family involved, as victims, are not concerned to punish the appellant.  Their only concern is to ensure that he receives the appropriate assistance in order to achieve the necessary rehabilitation. 

13. In my opinion, in the quite special circumstances of this matter, it was an error in the sentencing process not to advise the defendant of the option to ask that a conviction not be recorded.  Further, it seems probable that the magistrate did not seriously address that question. 

14. There is a further matter of concern.  As mentioned, the pre-sentence report demonstrated the clear need for counselling and assistance.  From that report and the circumstances disclosed in the offending, a compelling case was made out for the imposition of a penalty or sentencing package that both met the needs of punishing the offender and the personal needs of the offender aimed at rehabilitation.  There clearly existed an element of personal deterrence, but this was not a matter in which general deterrence was a significant consideration. 

15. In my opinion, the sentencing discretion has miscarried by reason of his Honour's failure to carefully address these compelling factors with a view to arriving at an appropriate sentencing package.  In those circumstances, and in view of the error in the sentencing process to which I have referred, in my opinion the penalty imposed should be set aside. 

16. This is not an appropriate case in which to address what might be considered the average punishment for the offence of assault occasioning actual bodily harm.  There are special circumstances in this matter which remove it from the average run of cases and dictate that a particular penalty to meet the circumstances of this case and this offender is required.  The penalty should not be viewed as a precedent for what can be described as the average run of cases. 

17. As to the question of whether a conviction should be imposed, in my opinion this is a borderline case, but the circumstances to which I have referred have persuaded me that I should exercise the discretion not to record a conviction. If I was contemplating a penalty in the nature of a fine or community service, I would have regarded the appellant as qualifying under s 16 of the Sentencing Act. 

18. I have reached the clear view that good reason exists for not imposing a conviction and, in my opinion, the circumstances are best met by discharging the appellant without recording a conviction, and without imposing any other penalty than a bond, pursuant to s 39 of the Sentencing Act. 

19. Having determined that I will discharge the appellant without recording a conviction on condition that he enter into a bond under s 39, it appears to me that s 18A of the Sentencing Act may not be applicable. That section enables a court to sentence a person to one penalty for more than one offence, but s 39 uses the words that the court may discharge the defendant with or without recording a conviction 'and without imposing a penalty'. It appears, therefore, that discharge of the bond may not be the imposition of a penalty for the purposes of s 18A.

20. In these circumstances there will be a separate bond on each of the three offences.  In respect of each, the appellant is discharged without recording a conviction, upon the condition that he enter into a bond in the sum of $500, and that will be three bonds to be of good behaviour for a period of 18 months, on condition that he appear before a court for conviction and sentence if he fails, during the term of the bond, to comply with any of the conditions of the bond. 

21. In addition, I fix the following conditions: One, that he pay the sum specified in the bond in the event of non-compliance with the condition of the bond.  Two, that he be under the supervision of a probation officer for the period of the bond.  Three, that he obey the lawful directions of the probation officer to whom he is assigned.   Four, that at the direction of the probation officer, he undergo such assessment, counselling and treatment for drug and alcohol abuse and anger management as the probation officer may reasonably direct.  Five, that he perform 50 hours of community service within 12 months of entering into the bond.  Condition number five requiring community service applies only to the bond for the offence of assault occasioning actual bodily  harm.

22. As required by ss 41(1)(b) and 28(d) of the Sentencing Act, I direct that the appellant report to the department for Correctional Services, Adelaide Community's Correctional Centre, 181 Flinders Street, Adelaide, no later than two working days after entering into the bond unless, within that period, he receives a notice from the director or CEO to the contrary. 

23. In the exercise of my discretion, I order that the respondent pay the appellants costs fixed at $200.