Molnar v Police No. Scgrg-97-1482 Judgment No. S6635

[1998] SASC 6635

MOLNAR v POLICE

Magistrates Appeal
Olsson J

The appellant in this matter appeals against penalties imposed on him by a stipendiary magistrate on 28 October 1997.  These were the outcome of four separate charges against the appellant and also an application for enforcement of a breached bond.  That application was based on the conduct which led to the four charges.

The appellant entered timely pleas to each of the four charges.  He also conceded that he had breached the relevant bond.  As a consequence the learned magistrate imposed a series of custodial sentences on him and revoked the suspension of a previous custodial sentence, to which the bond had related.

Counsel for the appellant complains that the sentencing package adopted was, in the circumstances, manifestly excessive.  He also contends that the learned magistrate erred, as a matter of sentencing principle, in declining to direct preparation of a pre-sentence report when asked by counsel to do so.

I will, initially, turn to the relevant narrative sequence of events.

The appellant, then a man aged 36 years, appeared before the Berri Magistrates Court on 22 July 1997.  He pleaded guilty to five separate offences, all committed on 16 April 1997.  These were:-

.        disorderly behaviour
         .        resist police
         .        refuse name and address
         .        assault police
         .        indecent language in a police station

Pursuant to section 18A of the Criminal Law (Sentencing) Act, a single composite sentence of two months’ imprisonment was imposed in respect of all offences.  However, this was suspended on the entry by the appellant into a bond to be of good behaviour for a period of nine months, one of the terms of which was the performance of 70 hours of community service.  That service was duly completed.

Precise factual details related to the above offences were not before the learned magistrate.  Nor were they made available to me.

The offences to which the appellant pleaded guilty on 22 July 1997 came before the learned magistrate on three separate files.  I will deal with them seriatim.

The first charge averred that, on 28 May 1997, the appellant stole a block of cheese, of the value of $3.95, from a supermarket at Berri.  This was an act of deliberate shop lifting.  The appellant took a number of items from shelves in the supermarket and subsequently paid for them.  However, whilst he was in the supermarket, he was seen to take a packet of cheese and secrete it down the back of his pants.  He did not declare his possession of, or pay for, it.  He was detained outside the store and reported for the offence.  At the time he was unemployed.

All other offences charged related to events which occurred at Berri on 19 August 1997.

At about 11.45 am on that day police on uniform mobile patrol were directed to attend premises at 2/54 Sturt Highway, Berri, apparently as a result of a call by the appellant’s neighbours.  The appellant answered the door.  His face was covered with blood.  He was obviously affected by alcohol.  A Ms Greenwood, the appellant’s pregnant de facto wife, was seen to be lying on the floor just inside the door.  Her face was also covered with blood.

Whilst the police were talking with the appellant, he turned towards Ms Greenwood and gratuitously kicked her right buttock.  It is common ground that this act founded the assault charge proffered against the appellant.

Police officers thereupon entered the premises and advised the appellant that he was under arrest.  He backed away and said “No, I’m not”.  When then endeavoured to take him into custody he struggled violently.  Police had to restrain and hand cuff him.

The totality of the foregoing scenario gave rise to one count of assaulting a family member and one count of resisting members of the police force in the execution of their duty.

Having been arrested the appellant was taken to the Berri police station.  Over a period of some 2½ hours the appellant behaved appallingly.  He was aggressive, spat on a number of occasions and abused police officers.  For a time he had to be placed in a padded cell with hand cuffs still on, kicked cell walls and the door, head butted a cell window and used foul language.  He tried to remove his jeans and injure himself and, after repeated warnings, had to be sprayed with capsicum spray to subdue him.  He urinated on the cell floor.  It is beyond question that, at all material times, he was extremely intoxicated.

Because of that behaviour he was charged with an additional count of behaving in a disorderly manner.

Not surprisingly the learned magistrate took a somewhat jaundiced view of this offending behaviour, following as it did, only a brief period of time after the appellant had entered into a bond to be of good behaviour.

Notwithstanding submissions that the appellant was attending an anger management course and may need some degree of psychiatric treatment, the learned magistrate imposed the following sentences:-

In respect of the offence of larceny	-....... imprisonment for one month
In respect of the offence of assault	-       imprisonment for three months, cumulatively upon the sentence for the larceny
In respect of the offence of resist police	-       conviction without further penalty
In respect of the offence of behave in disorderly manner	-       imprisonment for one month, to be served concurrently with the sentence for the assault

He felt constrained, in the circumstances, to accede to the prosecutor’s submission that the suspension of the custodial sentence imposed on 22 July 1997 be revoked.

Counsel for the appellant complains that, quite apart from the failure to obtain a pre-sentence report, this sentencing strategy was too draconian.  His submissions need to be considered in light of the following submissions made to the learned magistrate:-

......... due allowance had to be made for the timely pleas, the co-operation of the appellant and the fact that he “sincerely regretted his actions”

.the larceny had not resulted in any actual loss to the supermarket and the appellant had been subjected to the sanction that he had been banned from entering the premises in the future.

.the appellant had been reconciled with Ms Greenwood, who attended court with him.  She was pregnant with his child.  Prior to the assault they had been involved in a two way argument.  Each had assaulted the other.

.neither had summoned the police to the premises and the appellant had laboured under the misapprehension that they were not entitled to enter them without a warrant.  He was affected by alcohol and had become upset at what was perceived to be an inappropriate interference in a domestic dispute.

.the appellant recognised that he had anger management problems and, at the behest of his probation officer (with whom he had developed a good relationship) was actively participating in relevant programmes to assist him.

.the appellant may well need further ongoing assessment and treatment in relation to possible behavioural or psychiatric problems.  Imprisonment would not aid rehabilitation, but exacerbate the appellant’s problems.

.the appellant hoped to find employment in the Riverland and Ms Greenwood would be relying on him for support during her pregnancy and after the birth of the child.

.apart from the breaches evidenced by his further convictions, the appellant had been responding positively to supervision and the requirements of his probation officer.  He had fulfilled his other bond obligations and was endeavouring to get his life in order.

.the appellant had reduced his consumption of alcohol and was now taking responsibility for his actions.

In essence, it was strongly pressed upon me that the effect of the sentencing strategy adopted would be quite counter productive and would, in fact, operate to the very real prejudice of the primary victim.  It would be strongly contrary to her wishes and interests.

On the hearing of the appeal I decided to adopt a somewhat unusual course.

Firstly, I requested a report from the appellant’s probation officer.  I am indebted to Mr Patching for his urgent response to that request.

He reports that the appellant was a willing participant in a ten session anger management course and has, to some extent, apparently reduced his consumption of alcohol.

It is Mr Patching’s view that, although the appellant has obtained some benefit from the course he needs to repeat it because he struggled somewhat with the section dealing with communication skills.  The former assesses the appellant as being a person of low intelligence, who had limited comprehension of some areas of the course.

Mr Patching arranged for the appellant to be reviewed by a counsellor from the Drug and Alcohol Services Council.  The counsellor considers that the appellant requires psychiatric counselling for longstanding psychological stress relating to his childhood.  That may, of course, explain many of his recent behavioural problems.

Secondly, I asked that Ms Greenwood attend on the hearing of the appeal and give oral evidence before me.

She is a young woman who has clearly had a deprived background, having been brought up in a series of foster homes.  Despite the incident of 19 August 1997 she obviously has a strong attachment for the appellant.  It was said that a child of their relationship will be born in the near future and they ultimately plan to marry.  Both are currently unemployed, but the appellant hopes to secure work in the Riverland once his situation is stabilized.  He emanates from Victoria but has had a long history of more or less continuous employment, albeit much of it of a casual nature.

Ms Greenwood concedes that both she and the appellant have tempers which they need to control.

On 19 August 1998, as a result of an offensive letter which she had received, Ms Greenwood and the appellant were very upset and, foolishly, commenced drinking heavily.  By about midday both were highly intoxicated - to the point that Ms Greenwood now has little memory of the detailed events.  She was only just pregnant at the time.

According to her evidence, some drunken altercation, including physical violence, must have occurred.  Each struck the other.  She, in effect, says that she believes that she gave as good as she received.  Indeed, the appellant sustained facial cuts, whereas she did not.  She has no memory of being kicked and did not later exhibit any bruises or other ill effects.

Ms Greenwood is positive that both she and the appellant have benefited from the anger management course.  She asserts that neither have consumed alcohol since the appellant was sentenced by the learned magistrate.

At my request counsel procured further information concerning the appellant’s past record.  Moreover, I directed that a psychiatric assessment of the appellant be carried out, having regard to the recommendation of the Drug and Alcohol Assessment Council.

In this regard I must express some surprise at the failure (or even refusal) of the learned magistrate to pursue this aspect and to decline to accede to the submission that a pre-sentence report be obtained.  It is significant that, in the course of his remarks as to penalty, he said:-

“It is of some concern as learned counsel has pointed out, that he may need some psychiatric treatment.  He may have brain damage.  His behaviour responses are inappropriate.  That is for others to determine and decide.  His is now aged 36, which means he is a middle aged man.  He is violent.  He says he is doing well with his anger management course.  He has some acute problems which are on-going.  What the remedies for his problems are I do not know.  I do not even begin to know where to start.  That is for others to determine.”

Such a situation, coupled with the rather odd scenario before him and the appellant’s plainly bizarre behaviour clearly begged obvious questions which had a potential to impact on a proper sentencing strategy.  There were serious dangers in proceeding to sentence without looking into the matter in much greater detail than that which was available to the learned magistrate - yet he did nothing to look into aspects which clearly required consideration.

Counsel referred me to a number of relevant authorities bearing on that aspect.  Suffice it to say that, in The Queen v Tiziani (1987) 140 LSJS 22, the Full Court made it plain that, in circumstances akin to the present case, a pre-sentence report ought to be called for. A failure to so do, particularly one which is consequent upon a proper and reasonable request in that regard, clearly constitutes an error in the sentencing process. Had the learned magistrate obtained a report it would, inevitably, have revealed the situation above summarized. In the event the appellant was sentenced in a partial information vacuum and it falls to me to consider the sentencing process afresh.

In addition to the report above summarized, I have called for and received a psychiatric assessment of the appellant.  Dr Champion reports that the appellant does not suffer from any psychiatric illness but is of low average intelligence and obviously has had past problems with alcohol abuse, currently in remission.  It is the opinion of Dr Champion that the appellant has clearly derived benefit from his contact with his probation officer and particularly from the Anger Management Training.  He makes the point that the appellant has been largely abstinent from alcohol.  This situation, Dr Champion comments, indicates considerable motivation on the part of the appellant to improve himself and his situation.  No doubt the impending birth of his child has been an important factor in that regard.

In short, Dr Champion’s report, read in light of the report by Mr Patching, lends considerable credence to the evidence given by the appellant and Ms Greenwood.

Whilst it is only in unusual circumstances that the Court will refrain from revoking a previously suspended sentence upon commission of further offences, such as those now before me - particularly when they are committed so soon after the suspension - nevertheless, it seems to me that the relatively dramatic turn around in the appellant’s motivation and the substantial progress which he has made with the aid of his probation officer are factors to be built upon, rather than potentially negated.

Although this is a borderline case, I consider that the Court is justified in setting aside the order of revocation made by the learned magistrate.

Despite the submissions made by Mr Vadasz of counsel for the appellant I do not consider that it can fairly be said that the custodial sentences imposed by the learned magistrate in respect of the offences of larceny and resist arrest are manifestly excessive.  They were serious offences of their type and it was a circumstance of considerable aggravation that they were committed soon after the earlier offences and during the term of a bond to be of good behaviour.  The appellant’s substantial antecedent record also militates against leniency.

Having regard to the circumstances in which it took place, the absence of injury and evidence of Ms Greenwood I consider that the sentence of three month’s imprisonment for the assault is manifestly excessive and does not make due allowance for the appellant’s timely plea.  In my view a sentence of two months’ imprisonment would have been ample.

Bearing in mind the substantial progress which has led to a major turn around in the appellant’s lifestyle, coupled with the fact that the appellant has readily pleaded guilty and already served 11 days in custody, I am of opinion that this Court ought to give the appellant further encouragement and opportunity towards redeeming himself.   I must also take into account the fact that the appellant successfully completed the period of community service stipulated in the bond entered into by him.  If he satisfactorily avails himself of that opportunity then the community will be well served.  If he further offends then he will have to serve the sentences imposed on him.

The appeal will be allowed and the order of revocation of suspension set aside.  The custodial sentence in respect of the assault will be set aside and a sentence of two months’ imprisonment substituted for it cumulative upon the sentence for larceny.  All custodial sentences arising from the offences now under consideration will be suspended upon entry by the appellant into a bond of $100 to be of good behaviour for a period of two years, conditions of which shall be that he be subject to the continuing supervision of a probation officer in the usual terms and that he perform 100 hours of community service within the next twelve months.

The bond may be entered into before a magistrate or justice of the peace at Berri or Renmark.