MULLINS v Police
[2013] SASC 148
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MULLINS v POLICE
[2013] SASC 148
Judgment of The Honourable Justice Peek
20 September 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
The appellant pleaded guilty to ten offences on four Magistrates Court files, being three counts of aggravated assault, three counts of contravene an intervention order, two counts of breach bail, one count of resist police and one count of damage property, all committed on, or in the presence of, the mother of his child and in the context of arguments between them. The Magistrate imposed a single sentence of imprisonment on each file pursuant to s 18A, Criminal Law (Sentencing) Act 1988, made the four sentences cumulative and refused to suspend the sentences.
Held (Peek J, allowing the appeal):
Miscarriage of the sentencing discretion
(1) The Magistrate's sentencing discretion miscarried in respect of each of the four sentences. [14]-[62]
(i) On the first file, the Magistrate erred in finding that the resist police charge merited a sentence of imprisonment. The offence was of the passive, non-cooperation variety and did not involve an assault or attempted assault of police. Accordingly, s 18A, Criminal Law (Sentencing) Act 1988 should not have been invoked. [14]-[17]
(ii) On the second file, the appellant had believed his bail agreement had been varied to permit him to visit his daughter; the Magistrate acknowledged that the Court had made an error. The Magistrate erred in permitting the plea of guilty to stand and its inclusion under s 18A vitiated the sentence. [25]-[30]
(iii) On the third file, the Magistrate erred in sentencing for three offences under s 18A where count 2 had previously been withdrawn. Further, the aggravated assault charge failed to delinate to which incident in a series of three incidents it related. [34]-[44]
(iv) On the fourth file, the appellant was subjected to both double charging and double punishment on counts 1 and 3 and counts 2 and 4. While the two pairs of charges could be charged as alternatives, the appellant should not have been convicted and sentenced for four offences rather than two. [49]-[62]
Re-sentencing
(2) The appellant is re-sentenced to a single term of imprisonment for 50 weeks pursuant to s 18A for four of the offences. Good reason to partially suspend that sentence exists given the appellant's youth, his limited criminal history, his ongoing relationship with the complainant and his daughter, and his good propsects of rehabilitation. The other charges are dealt with separately. [69]-[82]
Criminal Law (Sentencing) Act 1988 ss 18A, 38, 38(2), 38(2a); Criminal Law Consolidation Act 1935 ss 5AA(1)(b), (1)(g)(ii), 20(3)(b); Intervention Orders (Prevention of Abuse) Act 2009 s 31(2), referred to.
Pearce v The Queen (1998) 194 CLR 610; R v Sessions [1998] 2 VR 304; R v McMutrie (2002) 83 SASR 261; Island Marine Ltd v Filipowski (2006) 226 CLR 328, discussed.
R v Toole [2013] SASCFC 18; R v Kerin (2013) 116 SASR 316, considered.
MULLINS v POLICE
[2013] SASC 148Magistrates Appeal
PEEK J. Appeal against sentence pursuant to s 42, Magistrates Court Act 1991.
Background
The appellant was originally charged with a total of ten offences on four Informations/Complaints[1] referable to four groups of offences occurring on: 20 April 2012 (file number AMC-12-8225); 6 September 2012 (file number AMC-12-12269); 20 September 2012 (file number AMC-12-12274); and 11 May 2013 (file number AMC-13-6067), respectively. The offences all concern the appellant’s behaviour towards, or in the presence of, Ms S.
[1] The first, second and fourth charge documents were Informations but the third was a Complaint. That distinction has no importance for present purposes and for convenience I will refer to all four as Informations.
Although the appellant pleaded guilty on 22 November 2012 to the charges in the first three Informations, it was not until 7 June 2013 that he was sentenced (at the same time) for all of the offences on all four Informations. He was sentenced to four periods of imprisonment corresponding to each of the four Informations, such sentences to be served cumulatively and not to be suspended. He appeals against the sentences and orders.
The appellant was born on 29 November 1992. He was aged 19 when he committed the first three groups of offences, and 20 when he committed the last group. He and Ms S have been in a relationship since about mid 2010 and there is one child of that relationship, TS, who was born in January 2012. There is no doubt that the appellant is very fond of the child and wants the relationship with both Ms S and TS to continue. Ms S has also stated that she wants the relationship to continue. Her victim impact statement (dated 24 May 2013) was as follows:
At this point in time I wish to be considered as an intelligent individual rather than a ‘victim of violence’ completely. I would like to suggest as Ziggy & Myself have been to separate councellors previously that it be possible to attend some sort of couples councelling. To which Im happy to source myself.
At the time of this ‘offence’ I believe there was & still is a big strain on our relationship & as partners & as parents. Acknowledging we were & are still contributing to society as full time workers. Not only the strain from this should result in an assault, but at the time & again still, I had found out my mother diagnosed not 2 months ago with stage four breast cancer, in her bones. Obviously contributing to a lot of my own stress, & on my immediate family, & Ziggy. Ziggy & I have come considerably far in the recent months especially with him acquiring a full time apprenticeship as a chef. To which his boss at the time has left but management are open to discuss his return. This has made a significant impact to our lives financially in a good way. We are or were working on a more secure future & to completely disregard these steps forward would seem a waste of the last few months of progress. Im not asking for him to be excused or for the order to be removed. Nor Altered. I simply want Ziggy to be available as far as [TS] goes for support & for myself.
We are generally a normal couple, but are obviously needing some guidance as far as our arguements go. I believe this would be something we both benefit from. Either to reconcile this relationship or simply mutual communication for [TS].
Taking on board our 3 year relationship, our beautiful home & building the current future of our Daughter. The pressure to work hard or go hungry & the numerous doubts & judgements from people, simply being young parents. We are making all the ends meet gradually & obviously working on the ups & downs.
I don’t want to be left out of the equation because Im a ‘victim’. Im not & have not been physically hurt nor mentally traumatized by the situation. There has been no bigger wake up call then now & I truly honestly believe with larger steps forward we can mutually decide the right way to protect & grown our current relationship. This has been our chance to grow up & realise the rights & wrongs. Im willing, with Ziggys cooperation to move forward & get the right help for our situation. There is no way to know the outcome if there is no chance given. (Emphasis added)
(Signed) Ms S 24.5.2013
It is against the above background that this appeal is to be considered.
The first Information: 20 April 2012 (file numberAMC-12-8225)
The counts in the Information concerning the offending on 20 April 2012 were as follows:
1.On the 20TH day of APRIL, 2012 at MITCHELL PARK in the said State assaulted [Ms S].
Section 20(3) of the Criminal Law Consolidation Act, 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that THE OFFENDER COMMITTED THE OFFENCE KNOWING THAT THE VICTIM OF THE OFFENCE WAS A DOMESTIC PARTNER OF THE OFFENDER.
This is a minor indictable offence.
2.On the 20TH day of APRIL, 2012 at MITCHELL PARK in the said State resisted GREGORY JACKSON AND TRISTAN BENNET a member of the Police Force in the execution of THEIR duty.[2]
Section 6(2) of the Summary Offences Act, 1953.
This is a summary offence.
[2] As no point was taken, I make no comment as to the validity of a charge expressed in this way and as to whether there should have been separate charges in relation to each police officer.
The facts upon which the appellant was sentenced were as follows. As at 20 April 2012, the appellant and Ms S were living together at Mitchell Park with their four month old daughter. They had been living together for about nine months.
At about 3:00pm on that day, the appellant returned home from drinking beer at his mother’s house. Upon entering the house, he took TS outside and walked up and down the driveway. Ms S asked the appellant to bring the child back but he refused. The appellant then returned to the house and tried to lock himself inside the bathroom but Ms S prevented him doing this. The appellant then went to TS’s room, followed by Ms S. The appellant there assaulted Ms S by choking, pushing and pulling her. During this time, his head accidentally came in contact with her head and at some stage in the course of the pushing and pulling, a patch of hair from her head was accidentally dislodged.
The appellant then climbed out of the bedroom window with TS and went into the street. There was some yelling and screaming. Police arrived and removed TS. The appellant was charged as appears above. He was granted bail with one of the terms preventing the appellant from approaching or contacting either Ms S or TS. An Intervention Order was made as a result of the above incident and its terms also originally prevented the appellant from approaching or contacting either Ms S or TS.
However, it appears that the appellant and Ms S later jointly approached the Magistrates Court requesting that the appellant be permitted to have contact with Ms S (but prohibiting the appellant threatening, assaulting, harassing or intimidating her) and with TS. Accordingly, the Intervention Order was amended so as to allow contact with Ms S but prohibiting the appellant threatening, assaulting, harassing or intimidating her. Reference to TS was deleted from the Order. (Unfortunately, as will be seen below, corresponding amendments were inadvertently not made by the Court to the appellant’s bail agreement as should have occurred at the same time).
After appearances and adjournments on 2 August 2012, 11 September 2012 and 25 October 2012, the appellant appeared unrepresented in court on 22 November 2012 and pleaded guilty to both counts 1 and 2 of the 20 April 2012 matters. The matters were adjourned until submissions were eventually made on 4 June 2013.
The Magistrate’s sentencing for the 20 April 2012 matters
The Magistrate stated:
[25]In relation to file number 12-8225 the charge of aggravated assault and resist police I have considered all of the options and in my view the only appropriate penalty is that of imprisonment. I would have started at a period of four months imprisonment but I reduce that to three months imprisonment on account of your plea of guilty. That three months is pursuant to s 18A of the Sentencing Act that is one penalty for both offences. I have had a number of matters put to me in terms of suspension and where there is good reason to suspend that period of imprisonment, particularly your age, lack of antecedents, your previous lack of being subject to a bond or having the benefit of a suspended sentence, your early pleas of guilty, your commitment to rehabilitation. In my view despite all those matters I am not prepared to find that good reason exists to suspend the period of imprisonment in relation to that matter.
The maximum penalty for the offence of aggravated assault (against a domestic partner)[3] is three years imprisonment and the maximum penalty for the offence of resisting police[4] is a fine of $2,500 or imprisonment for six months.
[3] Criminal Law Consolidation Act 1935 ss 5AA(1)(g)(ii), 20(3)(b).
[4] Summary Offences Act 1953 s 6(2).
In my view, the Magistrate erred in that her Honour failed to consider whether in all the circumstances the appropriate punishment for the charge of resist police was a sentence of imprisonment. One cannot assume that because one charge against a defendant (here the aggravated assault) required a sentence of imprisonment, a quite different offence against the defendant (here the resist police charge) also required a sentence of imprisonment, thus leading to one sentence of imprisonment for both offences being imposed under s 18A, Criminal Law (Sentencing) Act 1988.
The Magistrate did not make any reference at all to the facts alleged in relation to the charge of resist police. In fact, the charge of resist police was of the passive, non-cooperation variety. It was alleged that the appellant would not let go of TS when asked to do so by two police officers, thus necessitating the use of force by the officers. The appellant was said to “flail his hands around” and the police “placed” him on the ground after which he squirmed, used some bad language and while still on the ground grabbed a fixed fence post and would not let go for a time. Importantly, it was not suggested that he in any way assaulted either of the police or attempted to do so. He behaved in an idiotic, childish manner in the presence of the police, but little more than that.
It will be remembered that this incident of 20 April 2012 was the first in the series of incidents. The appellant was then aged 19 and had no significant criminal history.
I consider that in all the circumstances, the offence of resist police did not merit a sentence of imprisonment. I consider that the sentencing discretion has miscarried in relation to the charge of resist police and accordingly there must be a re-sentencing for both of the 20 April 2012 offences since the Magistrate imposed one period of imprisonment referable to both offences. I will defer this process until after I have considered the fate of the other sentences.
The second Information: 6 September 2012 (file number AMC-12-12269)
The counts in the Information concerning the 6 September 2012 events were as follows:
1.On the 6th day of September 2012 at MITCHELL PARK in the said State, without reasonable excuse failed to comply a term or condition of a bail agreement entered into by him at Sturt Police Station on the 20th April 2012.
Section 17 of the Bail Act, 1985.
This is a summary offence.
2.On the 6th day of September 2012 at MITCHELL PARK in the said State, contravened a term of an intervention order.
Section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
This is a summary offence.
The facts presented in the Police Apprehension Report were that on 6 September 2012 the police attended at the home of Ms S in response to a complaint of public disturbance. The inference appears to be that the police attended as a result of a noise complaint made by a member of the public but this is not expressly stated. However, it is stated that Ms S refused to provide a statement to police about the matter.
The police spoke to the appellant who apparently volunteered that he had shaken a fist at Ms S during an argument and, upon being questioned by police, “agreed that putting his fist in the air would have made [Ms S] feel threatened”. That admission having been produced (without a caution), the appellant was then charged by police with a breach of the Intervention Order (on the basis that Ms S would have felt threatened by the appellant’s action).
Importantly, the appellant was also charged with breach of his bail conditions on the basis that the appellant was at Ms S’s home in breach of a condition of bail not to attend there. Police laid this charge notwithstanding that the appellant immediately informed them, as outlined above, that while both the Intervention Order and bail conditions did originally prohibit the appellant attending at Ms S’s home, Ms S and the appellant had later jointly approached the Magistrates Court to vary the position so that the appellant could visit TS at the house and that they both understood that the required changes had been made.
The facts were reported in the Police Apprehension Report thus:
The victim in this matter is [Ms S]. On the 3rd day of May 2012 [the appellant] was served an intervention order the victim [Ms S], by Adelaide Magistrates Court – Condition 1 stating ‘The defendant must not assault, threaten, harass or intimidate the protected person(s)’.
At about 3:15am on Thursday 6th September 2012, [Ms S] and [the appellant] were at [Ms S’s] home address 1/14 David Avenue, MITCHELL PARK trying to settle their baby daughter, who had not been sleeping throughout the night. An argument began between [Ms S] and [the appellant], and out of frustration [the appellant] waved a clenched fist in her face, causing [Ms S] to feel threatened.
[Ms S] has declined to provide a statement to police in relation to this matter.
…
[The appellant] in this matter is Ziggy John MULLINS DOB 29/11/1992 of MORPHETTVILLE. MULLINS was aware that an intervention order was in place but stated that him and [Ms S] had it varied so he could visit his daughter. He agreed that putting his fist in the air would have made [Ms S] feel threatened. He was feeling frustrated as his daughter was not sleeping and him and [Ms S] had been arguing as a result. MULLINS was under the impression that his bail conditions would have been varied when the intervention order was varied, therefore not believing he was doing anything wrong being at the address.
After an adjournment on 25 October 2012, the appellant appeared unrepresented in court on 22 November 2012 and pleaded guilty to counts 1 and 2 on the 6 September 2012 Information. The matters were again adjourned until submissions were eventually made on 4 June 2013.
The Magistrate’s sentencing for the 6 September 2012 matters
As to count 1, the charge of an offence contrary to s 17, Bail Act 1985, the Magistrate was of the view that the appellant did hold the belief that he was not in breach of his bail agreement in visiting his daughter as he had asserted to the arresting police. In fact, her Honour stated: “I acknowledge that the breach of bail was an error in essence on the courts (sic) part”.
Given that the appellant had pleaded guilty to count 1 on 22 November 2012 when he appeared unrepresented, it should have been obvious that that plea of guilty could not stand. The effect of the appellant’s clear assertion from the beginning was that he had a “reasonable excuse” for his alleged breach, namely that he believed the Court had made all required changes to the documentation. Such an assertion of “reasonable excuse” had to be negated by the prosecution as appears from the very statement on the face of the charge in count 1. Far from that having been done, the Magistrate herself correctly acknowledged that it was not unreasonable for the appellant to believe that he was not breaching his bail.
Nevertheless, the Magistrate let the plea remain in place and in fact took the positive step of proceeding to record a conviction on count 1 (as well as on count 2). Her Honour then proceeded to sentence the appellant for both counts 1 and 2 pursuant to s 18A, Criminal Law (Sentencing) Act 1988.
Count 2 was in form a charge that the appellant contravened a term of an Intervention Order but it is important to bear in mind that the contravention alleged was his substantive conduct towards Ms S and not simply attending at the premises. As noted above, that conduct involved behaviour by the appellant of a threatening but non-contact nature.
The Magistrate proceeded by way of s 18A, Criminal Law (Sentencing) Act 1988 in relation to both counts 1 and 2 and imposed one month imprisonment.
For the reasons stated above, the appellant should not have been convicted of, let alone punished for, the offence in count 1. I will formally set aside the conviction on count 1 and strike out the plea of guilty to that charge for the reasons stated above.[5]
[5] In the interests of both clarity and fairness to the respondent, I make it clear that I set aside the conviction on count 1 and strike out the plea of guilty to count 1 on the basis that the facts asserted by the appellant to the police and to the Court have always been inconsistent with guilt of that charge. A plea of guilty cannot proceed in such circumstances. However, I am not adjudicating on the merits of the charge in the sense of positively finding the defendant not guilty. As a matter of law, the police could proceed on that charge again by requiring the appellant to make a fresh informed plea to the charge and if, as would be expected, the plea were to be one of not guilty, a trial would follow. For completeness, if as appears likely, it is decided not to proceed further with that particular charge, then in the light of the orders that I will formally make, the status of the defendant will be that he is not found to be guilty, and nor is he convicted, of that charge.
Since the Magistrate proceeded by way of s 18A, Criminal Law (Sentencing) Act 1988 in relation to both counts 1 and 2, that sentencing process is vitiated and there must be a re-sentencing. [6] Again, I will defer this process until after I have considered the fate of the other sentences.
The third Information: 20 September 2012 (file number AMC-12-12274)
[6] Because the matter should not have been included at all, the situation here is little different to that encountered when it is discovered that one of the charges in a group of charges dealt with under s 18A should not have been included because it did not carry a penalty of imprisonment. The Court of Criminal Appeal has taken a strict approach to error of that sort and has insisted on re-sentencing in such cases. The cases have been recently reviewed in R v O’Toole [2013] SASCFC 18.
The counts in the third Information concerning 20 September 2012 were:
1.On the 20th day of September 2012 at MITCHELL PARK in the said State, assaulted [Ms S].
Section 20(3) of the Criminal Law Consolidation Act 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender committed the offence knowing that the victim of the offence was a domestic partner of the offender & the offender was, at the time of the offence, acting in contravention of an injunction or other order of a court (made in the exercise of either state or federal jurisdiction) and the offence lay within the range of conduct that the injunction or order was designed to prevent.
This is a minor indictable offence.
2.On the 20th day of September 2012 at MITCHELL PARK in the said State, contravened a term of an intervention order.
Section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
This is a summary offence.
3.On the 20th day of September 2012 at MITCHELL PARK in the said State, without reasonable excuse failed to comply with a term or condition of a bail agreement entered into by him at Adelaide Magistrates Court on the 11th day of September 2012.
Section 17 of the Bail Act, 1985.
This is a summary offence.
After an adjournment on 25 October 2012, the appellant appeared unrepresented in the Adelaide Magistrates Court before Dr Cannon DCM (who was not the later sentencing Magistrate) on 22 November 2012. Count 2 on the Information was withdrawn and the appellant pleaded guilty to counts 1 and 3 of the 20 September 2012 matters. The matters were again adjourned until submissions were eventually made on 4 June 2013.
Count 3 was a charge of failing to comply with a term or condition of a bail agreement. This arose from the fact that in his bail agreement of 11 September 2012 the appellant had promised to live at an address at Appleby Road, Morphettville but when the police spoke to him at the premises of Ms S at Mitchell Park on 20 September 2012 he admitted that he had been living with Ms S at that address.
The Magistrate’s sentencing for the 20 September 2012 matters
I consider that the Magistrate's sentencing on 7 June 2013 for the 20 September 2012 matters is vitiated for two independent reasons.
A sentence for three counts when one count had previously been withdrawn
First, the sentencing process is vitiated because the Magistrate erroneously sentenced for all three counts on 7 June 2013 when in fact count 2 had previously been withdrawn on 22 November 2012. Her Honour specifically stated that she was sentencing for “[t]hree offences of aggravated assault, breach of intervention order and breach of bail on 20 September 2012” and later stated:
[26]In relation to file 12-12274 again in my view the appropriate penalty is that of imprisonment. I impose one penalty pursuant to s 18A of the Criminal Law Sentencing Act. I would have started at a starting point of four months imprisonment. I reduce that to three months imprisonment on account of your plea. Again I am not prepared to suspend that period of imprisonment and I take the view that it is appropriate to make that sentence cumulative upon the other sentences.
Proceeding by way of s 18A, Criminal Law (Sentencing) Act 1988 necessarily connotes that count 2 has contributed to the total penalty imposed[7] and accordingly there must be a re-sentencing.
[7] Because the conviction should not have occurred at all, the situation here is similar to that encountered when it is discovered that one of the charges in a group of charges dealt with under s 18A should not have been included because it did not carry a penalty of imprisonment. The Court of Criminal Appeal has taken a strict approach to error of that sort and has insisted on re-sentencing in such cases. The cases have been recently reviewed in R v O’Toole [2013] SASCFC 18.
No adequate delineation of the particular assault for which the Magistrate sentenced
Since the sentencing process is vitiated for the reason stated above, I can be brief in relation to a second independent matter that would also vitiate the sentencing process. The facts presented in the Police Apprehension Report described three incidents occurring on 20 September 2012 at the home of Ms S, each of which could have constituted an assault in the terms of the charge in count 1.
The first incident was as follows. At about 12:30am on 20 September 2012, the appellant was in Ms S’s lounge room with TS who was not settling. Ms S offered to take her into the bedroom. The appellant declined and refused to let Ms S take TS, and Ms S then threatened to call her father. The appellant then smacked a mobile phone out of her hand and Ms S left the room.
The second incident occurred sometime later when the appellant entered Ms S’s bedroom holding TS. An argument ensued and the appellant seized the cords of Ms S’s hooded jumper and pulled it across her head and lowered her to the ground before returning to the lounge room with TS.
The third incident occurred sometime still later when the appellant was in the lounge room holding TS. Ms S entered the lounge room and demanded that he give the child to her. The appellant refused and “head butted” Ms S.
To be clear, the form of the charge in count 1 was not patently duplicitous on its face since the charge does not explicitly refer to more than one offence. However, if the charge had gone to trial with only that one count being charged and the prosecution adduced evidence of the three incidents, the latent duplicity would have become apparent and it would have been necessary for the prosecution to elect as to which incident was relied upon.[8]
[8] Some cases illustrating the result of convictions being found to be bad for duplicity or uncertainty if such an election is not made at trial are collected in R v Kerin (2013) 116 SASR 316, 378-379 [289] at footnote 90.
In the present case there was to be a plea of guilty, but it was still necessary to delineate the offence for which a conviction was being recorded and for which a penalty was being imposed. The procedure that should have been adopted was for the Magistrate to have required the prosecution to elect as between the three incidents and then to proceed to sentence on the basis of that particular incident.[9]
[9] Obviously police would have been entitled to prefer a separate charge in relation to each such incident, if so advised.
In the Police Apprehension Report it does appear that emphasis was placed upon the last of the three incidents but the problem is that no election was made by the prosecutor at the time of the plea and the remarks of the Magistrate do not in any way indicate that her Honour was doing other than sentencing for all three incidents.
However, it is unnecessary to consider this aspect further since the matter of the withdrawn charge being included in the composite sentence is sufficient to require a re-sentencing which can be carried out on the appropriate basis. Once again, I will defer that process of re-sentencing until after I have considered the fate of the other sentences.
The fourth Information: 11 May 2013 (file number AMC-13-6067)
The counts in the Information concerning 11 May 2013 were as follows:
1.On the 11th day of May 2013 at MITCHELL PARK in the said State, assaulted [Ms S].
Section 20(3) of the Criminal Law Consolidation Act 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender used an offensive weapon to commit the offence and the offender committed the offence knowing that the victim of the offence was a domestic partner of the offender.
This is a minor indictable offence.
2.On the 11th day of May 2013 at MITCHELL PARK in the said State, without lawful excuse and being recklessly indifferent as to whether property was damaged, damaged a building the property of Derrick Brown Property Management such damage amounting to not more than $2,500.
Section 85(2) of the Criminal Law Consolidation Act 1935.
This is a summary offence.
3.On the 11th day of May 2013 at MITCHELL PARK in the said State, contravened a term of an intervention order.
Section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
This is a summary offence.
4.On the 11th day of May 2013 at MITCHELL PARK in the said State, contravened a term of an intervention order.
Section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
This is a summary offence.
The Police Apprehension Report stated that at about 12:15pm, on 11 May 2013 the appellant was with Ms S at her home and attempted to hug her. She was not responsive and told the appellant to go away. The appellant became aggressive and abusive and Ms S pretended to call the police. The appellant in turn pretended to smash the television. He then threw Ms S on the couch and raised a coffee table over his head in a threatening manner. As he did this, the table accidentally came into contact with an overhead light shade and caused it damage to the value of $20.
After an adjournment on 13 May 2013, the appellant appeared in the Adelaide Magistrates Court on 4 June 2013 represented by a solicitor. He pleaded guilty to all four counts of the 11 May 2013 matters. Submissions as to all matters were then made.
The Magistrate’s sentencing for the 11 May 2013 matters
Her Honour simply said this in relation to the 11 May 2013 matters:
[27]In relation to file 13-6067 I take the view that imprisonment is the appropriate penalty. I am not prepared to suspend it. I impose one penalty pursuant to s 18A of the Criminal Law Sentencing Act. I started at a period of eight months imprisonment but reduce that significantly on account of your plea to five months imprisonment.
Her Honour really says nothing as to the basis of fact upon which she sentenced on count 1. It appears from the Police Apprehension Report that Ms S pretended to call the police and that the appellant pretended to smash the television and it is clear that the appellant never intended to hit Ms S with the chair, and in fact he did not do so. However, it is unclear whether her Honour sentenced the appellant on this basis.
Further, her Honour also says very little as to the basis of fact upon which she sentenced on count 2, the matter of the damage to the light shade. However, it is clear that the real gravamen of count 1 is said to be a deliberate flouting of the Intervention Order and that aggravating feature was no doubt to be taken into account as an aggravating feature when assessing penalty on count 1. It must therefore be recognised that the appellant is not to be punished for that aspect of the matter a second time in the context of count 2. That being so, standing by itself, count 2 was really a quite minor matter; the impact with the light shade was entirely accidental and caused damage of only about $20.[10]
[10] There is of course a question as to whether the appellant had the required mental state of reckless indifference (in contradistinction to negligence) to constitute the charge in count 2. However, the appellant was represented at the time that the plea of guilty was entered on 4 June 2013.
“Double punishment”
There are further problems with the sentencing process for the 11 May 2013 matters in that counts 3 and 4 clearly overlap with counts 1 and 2 respectively.
Count 1 charged the offence of aggravated assault. Count 3 charged the offence of contravening a term of an Intervention Order but the only contravention relied upon was the very same assault referred to in count 1.
Count 2 charged the offence of property damage. Count 4 charged the offence of contravening a term of an Intervention Order but the only contravention relied upon was the very same property damage referred to in count 2.
If pleas of guilty are taken to both charges in the two pairs of such charges (the pairs being counts 1 and 3 and counts 2 and 4), there is a case of both “double charging” and “double punishment”. There is “double charging” because convictions are recorded for four offences when only two convictions should have been recorded for the conduct alleged. There is also “double punishment” because a penalty is imposed for four offences when it should only have been imposed by reference to two offences.
This is an interesting area of law but in this case time does not permit me to dwell upon it. In my view, it is sufficient to say that having regard to the authorities including Pearce v The Queen,[11] R v Sessions,[12] R v McMutrie,[13] and the decision of the High Court in Island Maritime Ltd v Filipowski,[14] it is clear that in the circumstances of the present case, while pairs of alternative charges could be charged on the Information as alternatives, once pleas of guilty had been taken to one count in the pair, the other count should have been dismissed.
[11] (1998) 194 CLR 610, 627-628 [61] (Gummow J); see also at 617 [22] (McHugh, Hayne and Callinan JJ).
[12] [1998] 2 VR 304, 308-309 (Hayne J).
[13] (2002) 83 SASR 261, 263-264 [9]-[11] (Gray J).
[14] (2006) 226 CLR 328. In Island Maritime Ltd, Gummow and Hayne JJ stated at 342-343 [40]: “Pearce held that a plea in bar is available, or, in courts of summary jurisdiction, an equivalent rule is applied, in cases ‘in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other’. The order in which the charges are preferred does not affect the availability of the plea, or the applicability of the equivalent rule”.
The last sentence is particularly important. Their Honours gave their reasons for this conclusion and amplified their views at 342-351 [38]-[63].
Kirby J at 357-359 [88]-[91] agreed with Gummow and Hayne JJ as did Callinan J at 360 [95] and one may therefore say that there is a plurality in favour of the views of Gummow and Hayne JJ. The joint judgment of Gleeson CJ, Heydon and Crennan JJ did not go as the plurality but nor did they decide to the contrary; see particularly at 338-340 [25]-[30].
Without referring to the authorities, the simplest way of explaining the matter is as follows. Count 3 charges a contravention of a term of an Intervention Order and the contravention relied upon is the performance of conduct prohibited by the Intervention Order, here that the appellant “must not assault, threaten, harass or intimidate the protected person”. On a plea of guilty to count 3, the appellant is to be punished for contravening the Intervention Order by the performance of such an act. It is obvious that the seriousness of a contravention of an Intervention Order will largely correspond to the act said to constitute the contravention and such act will be taken into account when imposing punishment. In such circumstances it is unnecessary to charge a further criminal offence in relation to the performance of the prohibited conduct. However, if it is wished to do so the two charges will be alternatives, the one to the other.
This process is well illustrated by reference to the procedure taken in this case relation to the second and third Informations.[15] In the second Information (concerning the events of 6 September 2012), count 2 charged a contravention of an Intervention Order by reference to the performance of conduct that amounted to an assault; no separate charge of assault was laid. As stated above, the seriousness of such contravention for the purpose of imposing punishment will be largely assessed by reference to the acts performed by the appellant which constitute and surround the contravention and which will be taken into account when sentencing.
[15] The process is the same in relation to counts 2 and 4. The relevant term of the Intervention Order here is that the appellant “must not interfere with or damage the premises where the protected person is staying …”.
By contrast, in the third Information (concerning the events of 20 September 2012), count 1 charged an offence of assault and count 2 charged a breach of an Intervention Order by reference to the performance of that same assault. However, when the appellant appeared in Court on 22 November 2012 and pleaded guilty to count 1, count 2 was withdrawn and dismissed. Although there is no transcript, I have little doubt that this was done because the Magistrate presiding on that day appreciated that this was the correct procedure to be adopted.
The difference as between the procedure adopted in relation to the second and third Informations is this. In relation to the second Information (the events of 6 September 2012), the actual act performed by the appellant was relatively minor, the gravamen largely lying in the fact that such act was performed in contravention of an Intervention Order. In those circumstances it was no doubt thought sufficient to charge breach of an Intervention Order alone. However, in relation to the third Information (the events of 20 September 2012), the act of assault, a head butt, was much more serious. The maximum penalty for the offence of aggravated assault (against a domestic partner) is three years imprisonment[16] whereas the maximum penalty for the offence of contravening a term of an Intervention Order is two years imprisonment.[17] Accordingly, it was appropriate to lay the more serious assault charge with the contravention of an Intervention Order charge laid as an alternative charge to be withdrawn on a plea of guilty to the more serious charge.
[16] Criminal Law Consolidation Act 1935 ss 5AA(1)(g)(ii), 20(3)(b).
[17] Intervention Orders (Prevention of Abuse)Act 2009 s 31(2).
I accept the submission of counsel for the respondent that if, say, an assault is performed in circumstances where the offender knows that the assault is also a contravention of an Intervention Order, then that knowledge is an aggravating feature of the offending and should be taken into account on sentencing without there being a separate charge of contravening an Intervention Order. (Of course, the co-relative of that proposition is that if that matter of the existence and knowledge of the Intervention Order is to be taken into account on the main charge of assault, then the defendant cannot also be punished on a separate charge of contravening the Intervention Order by assaulting the victim – for that is clearly double punishment).
However, as to the fourth Information now under consideration, while the two pairs of charges could be charged as alternatives, the appellant should not have been convicted and punished for four offences rather than two.
For all of the above reasons, the sentencing process is vitiated and I will re-sentence for the 11 May 2013 matters.
The process of re-sentencing the appellant
I now turn to the process of re-sentencing. I will treat four offences as a group.
The first offence in the group is count 1 in the first Information on file number AMC-12-8225 which concerned the assault on 20 April 2012. The circumstances of aggravation were that the appellant knew that the victim was his domestic partner. The maximum penalty is three years imprisonment.[18] The facts are set out above and I consider that this was a serious assault. I record a conviction.
[18] Criminal Law Consolidation Act 1935 ss 5AA(1)(g)(ii), 20(3)(b).
The second offence in the group is count 2 in the second Information on file number AMC-12-12269 and concerned the appellant contravening a term of an Intervention Order (that he not threaten Ms S), on 6 September 2012. The maximum penalty is two years imprisonment.[19] This offence was constituted by conduct by the appellant that “would have made [Ms S] feel threatened” but did not appear to involve a positive intention by the appellant to make her feel threatened and did not involve any contact or physical assault upon her. Ms S did not wish to make a statement to police about this particular matter. This matter was very much less serious than the first offence above. I record a conviction.
[19] Intervention Orders (Prevention of Abuse)Act 2009 s 31(2).
The third offence in the group is count 1 in the third Information on file number AMC-12-12274 and concerned the assault on 20 September 2012. This was an aggravated offence, the circumstances of aggravation being that the appellant knew that the victim was his domestic partner and that he was, at the time of the offence, acting in contravention of an Intervention Order. The maximum penalty is three years imprisonment.[20]
[20] Criminal Law Consolidation Act 1935 ss 5AA(1)(g)(ii), 20(3)(b).
It will be remembered that the facts presented in the Police Apprehension Report described three incidents occurring on 20 September 2012 at the home of Ms S, each of which could have constituted an assault in the terms of the charge in count 1. On re-sentencing, I asked counsel for the respondent if she was willing to elect as to which of the three incidents I should sentence on. She indicated that she was willing to elect and elected to proceed on the last of the three incidents on 20 September 2012. I consider that this incident constituted a serious assault. I record a conviction.
The fourth offence in the group is count 1 in the fourth Information on file number AMC-13-6067 concerning the assault on 11 May 2013. This was an aggravated offence, the circumstances of aggravation being that the appellant used an offensive weapon to commit the offence and committed the offence knowing that the victim was his domestic partner. The maximum penalty is four years imprisonment.[21] Although this charge refers to the use of an offensive weapon, the incident involved the appellant picking up a chair in circumstances where Ms S felt threatened by that movement. No contact was made, or intended to be made, with Ms S. I consider that this was a less serious assault than the offences of 20 April 2012 and 20 September 2012 above. I record a conviction.
[21] Criminal Law Consolidation Act 1935 ss 5AA(1)(g)(ii), 5AA(1)(b), 20(3)(c).
Considerations relevant to the re-sentencing
In sentencing the appellant on 7 June 2013, the Magistrate indicated that in her view deterrence was to be a key element in the sentence and observed:
[17]The message that this penalty must send not only to particularly yourself but also to other people in the community … is; that if you are going to treat the person you care about the most in a violent and aggressive manner repeatedly on in a situation where they show you and offer you support, then the penalties of the court are going to be harsh and the penalties are going to reflect that aspect of deterrence that is called for.
I agree that general and specific deterrence have a part to play here particularly having regard to the repeated nature of the offending.
I take into account the contents of the victim impact statement in which Ms S expresses her desire to maintain her relationship with the appellant. Her proclamation that she is not a victim in a certain sense of that term must also be borne in mind. I also take into account that the appellant is young. He has a very limited criminal history prior to this misconduct. His education and upbringing have been difficult. He has real prospects of rehabilitation, especially in light of his commencement of an apprenticeship as a chef. He is genuinely contrite for his past behaviour.
However, in all the circumstances, I consider that the above offences do require the imposition of a sentence of imprisonment. I proceed by way of s 18A, Criminal Law (Sentencing) Act 1988, since the offences constitute a course of conduct and a measure of concurrency of sentence is appropriate in all of the present circumstances.
I formally impose pursuant to s 18A, Criminal Law (Sentencing) Act 1988 one sentence of 50 weeks imprisonment in relation to the four offences referred to above with such period of imprisonment to commence on 13 May 2013.
Should the sentence be unsuspended, suspended or partially suspended?
I turn to consider whether the sentence of imprisonment should be unsuspended, suspended or partially suspended. The power of the Court to suspend a sentence is governed by s 38, Criminal Law (Sentencing) Act 1988:
38—Suspension of imprisonment on defendant entering into bond
(1) Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
(2a) However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—
(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
(2b) The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.
The correct approach to the suspension decision has recently been summarised as follows:[22]
[50]This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.[23] The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[24] It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[25] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.
[22] R v O’Toole [2013] SASCFC 18.
[23] Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J).
[24] R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530, 535 (Perry J).
[25] R v Wacyk (1996) 66 SASR 530, 535 (Perry J).
I consider that there are substantial matters militating in favour of suspension. The matters I have already referred to above have particular importance in the present context. The appellant is still young. He has a very limited criminal history prior to this misconduct. His education and upbringing have been difficult. He has real prospects of rehabilitation, especially in light of his commencement of an apprenticeship as a chef. He is genuinely contrite for his past behaviour.
I particularly note that the appellant has a good ongoing relationship with Ms S and with his child TS and genuinely cares for them. Importantly, Ms S has taken a mature and balanced view of the relationship as she relates in her Victim Impact Statement as set out above.
Finally, I note that the fact that the appellant has already served a period of over four months imprisonment since 13 May 2013 is a matter of some importance in that he has already undergone not insignificant punishment which may have a strong reinforcing effect on his stated intention not to reoffend. Of course, while the Magistrate took into account the portion of imprisonment served by the appellant from 13 May 2013 up to the sentencing date of 7 June 2013, she could not take into account the period of imprisonment from that date to the present. The combination of both of those two periods is now able to be taken into account on re-sentencing and in particular in relation to question of suspension of sentence.
While there is still debate surrounding the “clanging of the gates” principle, (the idea that, for certain offences and certain offenders, a short and sharp prison sentence which brings home the prison experience may be sufficient to positively deter from future offending), I do consider that the fact that a young person who had previously not been sentenced to prison has now served the not insubstantial period of over four months imprisonment is a matter of some weight to be borne in mind when re-sentencing and when considering the suspension decision.
Against these factors I weigh in the balance the serious and repeated nature of the appellant’s offending, the need to protect domestic partners, the need to give efficacy to Intervention Orders and to general and specific deterrence generally.
However, having given full weight to those matters, I consider that there does exist here good reason to partially suspend the appellant’s sentence.
Accordingly, I will partially suspend the sentence of imprisonment on the condition that the appellant serve 20 weeks imprisonment and enter into a bond in the amount of $100 to be of good behaviour for the balance of 30 weeks and to be subject to the supervision of a Community Corrections Officer and obey his reasonable directions for that period of 30 weeks.
Orders
I now proceed to dispose of all of the matters before me in accordance with the reasons given above. I make the following orders:
1As to each of the following charges, namely: the charge of “assault (aggravated)” in count 1 of the first Information (file number AMC-12-8225); and the charge of “contravene a term of an intervention order” in count 2 of the second Information (file number AMC-12-12269); and the charge of “assault (aggravated)” in count 1 of the third Information (file number AMC-12-12274); and the charge of “assault (aggravated)” in count 1 of the fourth Information (file number AMC-13-6067), THAT the appellant be convicted on each of the four charges and that pursuant to s 18A, Criminal Law (Sentencing) Act 1988 the defendant be imprisoned for a period of 50 weeks in relation to the four offences referred to above and that such period of imprisonment commence on 13 May 2013.
2THAT the sentence of imprisonment referred to in Order 1 be partially suspended pursuant to s 38(2a), Criminal Law (Sentencing) Act 1988 and that the defendant do serve a period of imprisonment of 20 weeks imprisonment (commencing from 13 May 2013) and thereafter the balance of the sentence of 30 weeks be suspended upon the defendant entering into a bond to be of good behaviour, and comply with all of the conditions of the bond, for 30 weeks, and to be subject to the supervision of a Community Corrections Officer and obey his reasonable directions for that period of 30 weeks.
3As to the charge of “resist a police officer” in count 2 of the first Information (file number AMC-12-8225), THAT the defendant be convicted and fined the amount of $100.
4As to the charge of “failure to comply with a term or condition of a bail agreement” in count 1 of the second Information (file number AMC-12-12269), THAT the conviction be set aside and the plea of guilty be struck out.
5As to the charge of “contravene a term of an intervention order” in count 2 of the third Information (file number AMC-12-12274), THAT it is declared that this charge was withdrawn and dismissed when the matter was called on before Dr AJ Cannon DCM on 22 November 2012 at the Adelaide Magistrates Court and accordingly the conviction purported to be recorded by Ms McGrath SM on 7 June 2013 is set aside and declared to be a null and void.
6As to the charge of “failure to comply with a term or condition of a bail agreement” in count 3 of the third Information (file number AMC-12-12274), THAT the defendant be convicted without penalty.
7As to the charge of “damaging a building” in count 2 of the fourth Information (file number AMC-13-6067), THAT the defendant be convicted and fined the amount of $20.
8As to the charge of “contravene a term of an intervention order” in count 3 of the fourth Information (file number AMC-13-6067), THAT the conviction be set aside and the plea of guilty be struck out.
9As to the charge of “contravene a term of an intervention order” in count 4 of the fourth Information (file number AMC-13-6067), THAT the conviction be set aside and the plea of guilty be struck out.
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