Mellor v Police No. Scciv-01-1158

MELLOR v POLICE
[2001] SASC 357
Nyland J

This is an appeal against conviction and sentence. The appellant was charge on information with assaulting Karl Lemberg on 15 July 1999 thereby occasioning him actual bodily harm. On 18 April 2001, the appellant appeared in the Port Adelaide Magistrates Court with respect to the charge. The appellant was unrepresented. No plea was taken, but the learned magistrate advised the appellant that he was considering a custodial sentence and advised the appellant to obtain legal advice.
A written pre-sentence report was ordered with respect to sentence. The matter was then remanded to 8 June 2001. On that date, the appellant again appeared before the magistrate at which time he pleaded guilty to the offence. He was sentenced to be imprisoned for a period of four months, which term was not suspended. The appellant served a period of about two months custody before being released on home detention.
A notice of appeal against sentence was filed by the appellant on 31 July 2001. Those grounds were subsequently amended on 23 August 2001 to include an appeal against conviction. The grounds of appeal now before the court are as follows:
“(1)In the circumstances the sentence imposed by the honourable Magistrates Court is excessive.
(a)    (deleted)
(b)    The Appellant was engaged in employment.
(c) The Appellant had acted in self defence.
(d)    Although the Appellant had a defence he elected to plead guilty without legal advice. He was unrepresented in Court.
(e)    At the time the Appellant committed the crime he was under emotional stress due to his father dying of cancer.
(2)Insufficient weight was given to the above mitigating factors.
(3)   In the circumstances a suspended sentence was warranted.
(4)The Honourable Magistrate misstated the facts of the case as presented by the prosecution. The misstatement was that the accused had earlier in the evening in question been refused entry into the hotel premises and then swore at and assaulted a member of the hotel staff. This was incorrect. According to the prosecution’s own evidence it was the alleged victim who had sworn at and assaulted the accused. This fundamental error had serious repercussions in that:
(a)    His Honour, with erroneous facts in mind, did not properly consider the issue of self defence when it was raised by the accused in court.
(b)    His Honour, with erroneous facts in mind, was inclined to view the ensuing alleged assault as a more serious one than was otherwise the case.
(5)The prosecution case was that the alleged victim had, earlier in the evening in question, pushed the accused. The accused (who was unrepresented) told his Honour that the alleged victim had later come at him with a raised clenched fist and he had then reacted by hitting him. This should have alerted his Honour to the issue of self defence but this issue was not adequately addressed.”
On the hearing of the appeal, the appellant was represented by Mr Grogan of counsel and Mr Lesses appeared on behalf of the Director of Public Prosecutions. The appellant was, however, unrepresented throughout the proceedings in the Magistrates Court.
The circumstances relating to the offence as outlined to the magistrate are set out in the affidavit of Tracy Riddle, the police prosecutor. She told the magistrate that the incident had occurred at about 11.30pm on 15 July 1999. The victim was standing on the footpath outside of the Joiners Arms Hotel at Manton Street, Hindmarsh. He approached the doorway to the front bar area and was about to walk inside when the appellant stood in the entrance to the door and prevented him from going in. The victim said that the appellant said to him “you can’t come in, it’s $5.00, Clare’s doing a strip.” The victim said that he told the appellant to “fuck off”, pushed past the appellant and walked inside. The victim said that as he was pushing past the appellant, the appellant was trying to push him back to prevent him from gaining entry into the front bar area.
The victim said when he got inside the front bar area he approached the bar to get a drink when the appellant approached him for no reason and punched him once with a clenched fist to his mouth area. The victim said he did nothing to provoke this punch and did not attempt to fight back. He said he felt great pain and fell to the ground where he remained seated for a short time. His mouth began to bleed and he felt with his tongue that several of his front teeth were missing. He found several pieces of his teeth which had been knocked out by the punch by the appellant on the floor. He said he had several teeth missing from both the upper and lower jaw area of his mouth. After he picked the pieces of his broken teeth from the floor, he got up and went to the bathroom to check the damage and left the hotel to seek medical attention. He also had a fat lip from the punch. The victim said he gave no person permission to hit him at any time and said he did nothing to provoke the incident.
Police interviewed the appellant about these matters on 22 July 1999. The appellant admitted that he had been at the Joiners Arms Hotel on the date in question and that he had attempted to prevent the victim from entering the bar area. He said that he was just mucking around. He admitted that the victim pushed past him and gained entry. He said that once inside the hotel, he approached the victim and he suddenly turned around to face him in a hurry. He though the victim may hit him so he hit him first. He admitted he punched the victim once using a right clenched fist to the mouth area. He admitted the victim did not raise his hands or have a clenched fist prior to him punching him. He admitted he got the wrong idea and that he overreacted. He admitted the victim fell to the floor as a result of his punch. He admitted that he had no permission or right to punch the victim. He said he was sorry for his actions. He said he did not actually see the teeth get knocked out of the victim’s mouth but said it was possible as he saw the victim pick something up off the floor before he left. He said that after punching the victim he just walked over to the bar and continued drinking and did not assist the victim at all.
The prosecutor then informed the magistrate that the appellant had appeared in the Magistrates Court at Elizabeth on 6 December 1996 on a charge of common assault on a family member for which he was convicted and fined $100. The prosecutor also informed the court that as a result of the assault in this case the victim had required dental treatment amounting to $4,500. According to the prosecutor, the appellant made no submissions in relation to the facts nor did he provide an alternative account of events. The prosecutor then made submissions as to penalty and submitted that the unprovoked serious nature of the assault made this an offence for which a term of imprisonment was warranted. She made no submission as to whether it was appropriate to suspend the sentence.
The magistrate convicted the appellant and sentenced him to four months imprisonment. In addition, he ordered that the appellant to pay $4,500 compensation to the Registrar of the court for transmission to the victim.
On the hearing of the appeal, Mr Grogan acknowledged that the appellant had pleaded guilty to the charge and had not made any submissions to the magistrate with respect to sentence. He submitted, however, that the appellant had not properly considered the reality of the risk of immediate imprisonment and had allowed the matter to proceed out of an anxiety to complete the matter as soon as possible. The magistrate had, however, failed to discharge his obligation to ensure that the appellant fully understood the nature of the charge against him as well as the consequences of the plea of guilty. Mr Grogan also submitted that the magistrate had made an error as to the circumstances of the offending which was likely to cause a miscarriage of justice.
The magistrate in sentencing the appellant described the circumstances of the offending in the following way:
“I was told, and you agreed, that you were outside a hotel. You approached the area, being a bar, and was told by one of the staff that ‘You can’t come in. It is five dollars’ and there was then reference made to the fact that someone was doing a strip. I inferred from that your access was barred at this place because a charge was being made. The allegations were that you told this person to ‘fuck off’ and you pushed him back. You went into the bar area. You approached the bar. I was then told that you struck this person once to the mouth. That person fell to the ground bleeding, suffering serious dental injury with their front teeth missing and then being left to pick up the pieces of their teeth from the floor. That person required extensive dental treatment.” (emphasis added)
The magistrate went on to say that “(i)t is difficult to imagine a more serious single count of assault occasioning actual bodily harm. The injuries here are quite extensive…”
The magistrate clearly fell into error as he reversed the roles of the protagonists. In addition to this error, Mr Grogan submitted that the learned magistrate had erred in not adequately satisfying himself that the appellant had put before the court all relevant circumstances and considerations. He acknowledged that the magistrate had given an intimation to the appellant that he was considering imposing an immediate custodial sentence, but submitted that in that circumstance the magistrate should have adequately satisfied himself that the defence of self defence was not available. He further submitted that as there was a duty solicitor service available at the Port Adelaide Magistrates Court, there should have been some suggestion to the appellant that he seek advice from that solicitor before the case proceeded further.
In making this particular submission, Mr Grogan relied on the comments of Olsson J in Ahlburg v Police S6009 (unreported, delivered 13 February 1997) and the further decision of Olsson J in McFadzean vHayes (1986) 133 LSJS 142. In Ahlburg, Olsson J said (at p 5):
“I consider that, if a custodial sentence is in contemplation, not only ought the defendant be told of that fact quite explicitly, but the presiding magistrate ought also to both tell the defendant of the duty solicitor scheme and take what steps he or she reasonably can to ensure that at least contact is made between the defendant and the duty solicitor before the matter proceeds. It is usually highly unsatisfactory (if not dangerous) simply to accept a statement from an uninformed defendant that such person has thought about it and simply wishes to go on and have the matter disposed of.”
The classic statement as to the steps to be followed by a court when taking a plea from an unrepresented defendant is, however, that of Wells J in Cooling v Steel (1971) 2 SASR 249 at pp 250-251, helpfully paraphrased by Sangster J in Ivanoff v Linnane (1979) 20 SASR 279 as follows (at pp 282-283):
“(i)Ensuring before a plea is taken that the defendant is told, briefly and simply, what he is charged with. (I am sure that in many cases this is quite plainly stated in the charge as read out and that no separate explanation is called for.)
(ii)Making the defendant appreciate that the plea is a matter for his own independent decision, that he is entitled to legal advice and representation, and to a reasonable adjournment to seek legal advice or representation. (I will come back to that aspect.)
(iii)If the question of bail arises, making the defendant clearly aware of what bail is, that he can apply for bail, what matters a court takes into account, and that he can make representations. (I will come back to that aspect also.)
(iv)If the case is to be proceeded with the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has power to disqualify from holding or obtaining a driving licence, or order compensation, or direct forfeiture of property, or order imprisonment.
(v)On a plea of guilty the defendant should have it made clear that he may put matters in mitigation by statement or on oath (especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material.
(vi)On a plea of guilty, before the prosecutor places the facts before the court the defendant should be informed that he is entitled to dispute or comment on the facts about to be alleged (including previous convictions).
(vii)If facts are disputed, the defendant should be given the opportunity to support his version by sworn evidence and/or calling witnesses, or (if appropriate) consideration should be given to treating the defendant’s contention as to the facts as a plea of ‘not guilty’.
(viii)Special considerations apply to Australian aborigines, and to persons with an inadequate grasp of the English language.
(ix) Even this list is not regarded as exhaustive.”
Wells J went on to say in Cooling v Steel (at p 251) that:
“In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”
In this case, the magistrate, although suggesting the appellant seek legal advice, does not appear to have mentioned the availability of the duty solicitor service. The circumstances in which this plea was taken are, however, somewhat different to the circumstances which pertained in Ahlburg and McFadzean. In each of those cases, the defendant appears to have pleaded on the same day as the magistrate indicated that there was a possibility of the imposition of a custodial penalty. There was also limited information available as to his personal circumstances. In Ahlburg, there was some dispute as to whether the magistrate even told the defendant that a custodial penalty was likely.
In this case, the incident which was the subject of the charge took place on 15 July 1999. For reasons which are unclear, the matter did not come before the court until 21 December 1999. It was then adjourned. There is an endorsement on the file that on 2 February 2000 the matter was further adjourned to 15 March 2000 with a note that the matter was awaiting a legal aid assignment. On 15 March 2000, there was no appearance by the appellant and a warrant was issued. The matter then came before the court on 18 April 2001. No plea was then taken, but the court file records that on that occasion the appellant was advised by the magistrate that he was considering a custodial sentence and the magistrate advised the appellant to obtain legal advice. The magistrate also took the precaution of ordering a pre-sentence report.
The matter was then adjourned for a period of almost two months to 8 June 2001, that being the date upon which sentence was eventually imposed. According to the affidavit of the police prosecutor, the learned magistrate, before proceeding further with the matter, once again informed the appellant that the usual penalty for an offence of this kind was an immediate sentence of imprisonment. The appellant was again asked whether he would like to seek any legal advice. It was then that the appellant indicated that he wished the matter to proceed and pleaded guilty to the charge.
In those circumstances, I consider that the appellant was adequately advised as to the possibility of the imposition of a custodial sentence and given ample opportunity to obtain legal advice as to that matter.
Mr Grogan was, however, highly critical of the magistrate’s failure to explore the issue of self-defence. The magistrate referred to the issue of self-defence in the course of his sentencing remarks, but determined on the information available to him that “there was no serious issue that arose in connection with the statutory defence of self-defence”. This finding is consistent with the comments made by the appellant to the police at the time of his arrest which was to the effect that the victim had not raised his hands nor have a clenched fist prior to being assaulted by the appellant and his admission that “he got the wrong idea and that he overreacted”.
On the hearing of the appeal, however, I was provided with an affidavit of Daryl House, sworn on 29 August 2001. Mr House was apparently present on the occasion in question. He deposes as to his observations of the events which took place at that time. This affidavit is produced by way of fresh evidence. Mr House says in that affidavit (at p 3):
“16.A few minutes later the same man who had pushed Matt suddenly pushed through the crowd towards us. I saw that he was staggering a bit so I thought he must be drunk.
17.He raised his clenched fist and came at Matt who was standing right next to me.
18.The man was moving quickly. His fist was above chest height and approximately at the level of Matt’s head. All Matt did was to act to protect himself from the punch.
19.The next thing I saw was Matt’s fist striking the man’s jaw. I did not see Matt take a swing at the man. It happened very quickly.
20.The man fell to the floor of the hotel. He stayed there for about 30 seconds.
21.He seemed stunned. I didn’t see him pick anything up from the floor.
22.The man then stood up and left very quickly out the hotel door. I did not see him again.”
There is no explanation as to why this information was not provided by Mr House at an earlier date but, in any event, the version of events described by Mr House is not only inconsistent with the unchallenged factual scenario that was conveyed to the learned magistrate by the prosecutor, but is also inconsistent with the comments made by the appellant to the police shortly after the incident occurred. Even if it were to be accepted that the victim behaved in the way described by Mr House, we are still left with the fact that the appellant struck the victim with such force that in one blow he was able to knock him to the ground and cause a significant dental injury which required treatment in the amount of $4,500. This inevitably leads to the conclusion that the use of force by the appellant, even if he believed he was acting in self-defence, was grossly excessive. In those circumstances, the response of the appellant, when looked at objectively, could not be considered reasonably proportionate to any threat he perceived from the victim. That was clearly the process of reasoning adopted by the learned magistrate in concluding that no serious issue of self-defence arose on the facts of the case.
In my opinion, there is no basis upon which to interfere with the conviction recorded against the appellant. The magistrate did, however, make an error as to the circumstances surrounding the offence in that he sentenced the appellant on the basis that the appellant inflicted the blow when endeavouring to gain entry to the premises when in fact it was Mr Lemberg whose access was barred. Mr Lesses also acknowledged that the learned magistrate’s comment that “(i)t is difficult to imagine a more serious single count of assault occasioning actual bodily harm” may have implied an excessive characterisation of the assault offence in question. Mr Lesses submitted, however, that neither that characterisation of the offence nor the treatment of the peripheral factual issues constituted a miscarriage of the learned magistrate’s sentencing discretion.
In considering this matter, it is necessary to bear in mind that the offence for which the appellant was being sentenced carried with it a maximum term of five years. Even allowing for the factual error made by the magistrate, bearing in mind the consequences to the victim, this was a serious offence. The magistrate was entitled to have regard to the fact that the appellant had previously been before the Court with respect to an offence involving violence. Although a defendant is not to be re-sentenced for a past crime, the fact of a prior conviction reduces the scope for leniency which might otherwise be extended to a first offender.

Taking into account all of the circumstances in this matter, I am not persuaded that there has been a miscarriage of justice which would require this Court to interfere. The appeal is therefore dismissed.

[2001] SASC 357

23 November 2001