Murray v Police

[2015] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MURRAY v POLICE

[2015] SASC 64

Judgment of The Honourable Justice Blue

22 April 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence.

The defendant was sentenced by a Magistrate to imprisonment for 14 months and 23 days with a non-parole period of eight months after pleading guilty to being unlawfully on premises, unlawful damage, two counts of assault, three counts of contravening an intervention order, three counts of hindering or resisting police and one count of assaulting police, all committed on 2 November 2013.

The defendant appeals on the ground that the sentence was manifestly excessive and that the Magistrate made errors in relation to the facts of the offending, the defendant’s lack of remorse and failing to take into account that he was suffering from an adjustment disorder with depressive features at the time of the offending.

Held:

1.      The defendant has failed to demonstrate error by the Magistrate in relation to the facts of the offending or the defendant’s lack of remorse (at [33] and [34]).

2.      The Magistrate erred in failing to take into account that the defendant was suffering from an adjustment disorder with depressive features at the time of the offending (at [37]-[38]).

3.      Appeal allowed.  Defendant re-sentenced to imprisonment for 11 months and 19 days, to be partially suspended after the defendant has served five months and five days imprisonment upon entering into a bond for 18 months (at [43]).

Criminal Law Consolidation Act 1935 (SA) s 20(3), s 85(3),; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Summary Offences Act 1953 (SA) s 6(2), s 17(1), referred to.
R v Bagnato [2011] SASCFC 161, (2011) 112 SASR 39; R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398; R v Major (1998) 70 SASR 488; R v Nylander [2003] SASC 191, (2003) 228 LSJS 24; R v Van der Horst [2006] SASC 243, considered.

MURRAY v POLICE
[2015] SASC 64

Magistrates Appeal: (Criminal)

BLUE J:

1. This is an appeal against sentence.

2. The defendant, David George Murray, pleaded guilty in the Magistrates Court to one count of being unlawfully on premises,[1] two counts of assault one of which was aggravated,[2] one count of unlawful damage,[3] three counts of contravening an intervention order,[4] three counts of hindering or resisting police[5] and one count of assaulting police,[6] all committed on 2 November 2013.

   [1]    Summary Offences Act 1953 (SA) s 17(1).

   [2]    Criminal Law Consolidation Act 1935 (SA) s 20(3).

   [3]    Criminal Law Consolidation Act 1935 (SA) s 85(3).

   [4]    Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2).

   [5]    Summary Offences Act 1953 (SA) s 6(2).

   [6]    Summary Offences Act 1953 (SA) s 6(2).

3. The Magistrate imposed a single penalty for all offences pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of imprisonment for 14 months and 23 days and fixed a non-parole period of eight months, commencing on 17 November 2014, the date on which the defendant was sentenced. The Magistrate adopted a starting point of imprisonment for 28 months, which she discounted by 30 per cent on account of the defendant’s guilty pleas to arrive at 18 months and 20 days. The Magistrate gave credit of one month and 25 days for time spent in custody and credit of two months for 10 months spent on home detention.

4. The defendant appeals against the sentence on the following grounds:

   1.The sentence was manifestly excessive.

   2.The Magistrate erred in relation to the facts of the offending.

   3.The Magistrate erred in not accepting the defendant’s remorse as genuine.

   4.The Magistrate erred in failing to take into account that the defendant was suffering from an adjustment disorder with depressive features at the time of the offending.

   The offending and its background

5. The Defendant had been in an on-again off-again relationship with M. Between 2009 and 2013, they engaged in a continuing pattern of living together for a few months, fighting, separating for a few months and then living together again. M’s daughter, D, lived with her mother and with the defendant when he was living with her mother. D was six years old when the defendant met her mother in 2009 and 11 years old at the time of the offending in November 2013.

6. Between 2009 and 2012, there were several incidents involving verbal and physical violence between the defendant and M. In March 2011, while they were separated, M applied for an intervention order. An order was made prohibiting the defendant from approaching, contacting or communicating with M or D. However, the defendant subsequently resumed living with M on further occasions without the intervention order being discharged or varied. In October 2011, the defendant assaulted M in Victoria and in January 2012 he was sentenced for recklessly causing injury in the Hamilton Magistrates Court to three months imprisonment, which was suspended on his entry into a bond to be of good behaviour for two years.

7. In October 2013, after a separation of about a year, the defendant returned to live with M for a few days. He went to New Zealand for a week to care for his father and returned on 28 October 2013.

8. On 2 November 2013 at about 4.00 pm, M and D returned home. The defendant and M began arguing. M told him to leave. M and D went inside the house to gather his personal items to take outside. He ran towards the front door. M attempted to close it. He forced the door open and entered the house. This conduct and his remaining in the house were the subject of the unlawfully on premises count.

9. When the defendant forced the door open, it knocked M backwards onto the ground. The defendant grabbed M’s hand. He pushed his nails under one of her knuckles, causing extreme pain. He unsuccessfully attempted to enter D’s room to stop her calling the police. M grabbed him and pushed him several times to keep him out of D’s room.

10. The defendant smashed a glass lizard vivarium, smashed an owl money box, punched a plastic vivarium, punched the walls, threw M’s television across the room and threw her DVD player against a wall. This conduct was the subject of the unlawful damage count.

11. The defendant attempted to push open D’s door while she was pushing against it from the inside. He forced the door open, pushing her into a desk, hitting her back on the desk.

12. The defendant pushed M into the door frame, hitting her back on the frame. He picked up a spray can and lighter and unsuccessfully attempted to light the spray while pointing it at M. He then said that he was going to cut the dog up.

13. The defendant’s application and threats of force to D were the subject of the aggravated assault count. The defendant’s application and threats of force to M were the subject of the basic assault count. The offences against M and D in the house were committed over about 10 minutes.

14. By the above conduct, the defendant breached the intervention order in respect of M twice and D once. This was the subject of the three counts of contravening an intervention order.

15. Two police officers entered the house. They asked the defendant to leave. He refused. They attempted to restrain him. He pushed them and attempted to punch one of them. They used capsicum spray to restrain him. This conduct was the subject of one count of hindering and one count of assaulting police.

16. On the way to the police station, the defendant asked the police officers to stop the vehicle to vomit. He attempted to run away. The police again used capsicum spray to restrain him. This conduct was the subject of one count of hindering and one count of resisting police.

17. The offences were committed while the defendant was still subject to the good behavior bond imposed by the Hamilton Magistrates Court.

18. The maximum penalty for assault is imprisonment for two years, aggravated assault is imprisonment for three years, being unlawfully on premises is imprisonment for six months, unlawful damage is imprisonment for 10 years (limited in the Magistrates Court to a maximum of five years), contravening an intervention order is imprisonment for two years, hindering and resisting police is imprisonment for six months and assaulting police is imprisonment for two years.

    Personal circumstances

19. The defendant was 52 years old at the time of the offending. Apart from convictions for driving offences in the 1980s and 1990s, he had no prior convictions other than the conviction in the Hamilton Magistrates Court in January 2012 referred to above.

20. The defendant was born in New Zealand, the second youngest of 13 children. His father was an alcoholic who abused his mother and him. He left school at the age of 14 and undertook various unskilled work. He later worked in the mining industry and as a machine operator. At the age of 18, he migrated to Australia.  In Australia he entered into a serious relationship with a woman. They had a daughter who is now aged 27.

21. At the age of 26, the defendant entered into a serious relationship with another woman. This relationship lasted for 20 years. They have a son who is now aged 24. There were no domestic violence incidents during their relationship. The defendant ended the relationship in 2007, but increased his consumption of alcohol and after six months was diagnosed as suffering from depression and was prescribed antidepressants by his general practitioner.

22. The defendant commenced the relationship with M in 2009. In November 2010, he attempted to commit suicide. At the time, he was binge drinking alcohol. On occasions during that relationship, he took anti-anxiety medication. He also generally took antidepressants, but did not take them during the week in New Zealand shortly before the offending on 2 November 2013.

23. After his release on home detention in December 2013, the defendant returned to live with his former partner (with whom he had been in the 20 year relationship) as a friend. She provided support to him.

24. The Magistrate requested a psychiatrist to assess the defendant and provide a report on his fitness to stand trial and mental competence to commit the offences. Dr Rose saw the defendant and provided a report in August 2014. Dr Rose expressed the opinion that the defendant was fit to stand trial and mentally competent to commit the offences. The defendant described his relationship with M to Dr Rose. In general, he denied any violent conduct toward M other than the offending on 2 November 2013. In general, he did not express remorse in relation to M.

25. Dr Rose diagnosed the defendant as having suffered dysthymia since 2009. She thought that it was likely that he was suffering from an adjustment disorder with depressive features in November 2013 when he committed the offences.

26. The Magistrate also requested a pre-sentence report. A report was prepared in August 2014. The community corrections officer reported that the defendant was able to acknowledge with hindsight that he could have managed the situation better and walked away. He acknowledged that he struggled with managing his emotions. It was considered that he lacked insight into the cycle of domestic violence. It was recommended that the defendant undergo psychological counselling and treatment, attend upon a domestic violence counsellor and undergo alcohol relapse prevention counselling. The community corrections officer reported that the defendant appeared to accept responsibility for his offending behaviour and was motivated to address areas that may have impacted on it. She said that he had arranged a referral from his general practitioner to a psychologist. She reported that he had been compliant with his conditions of home detention.

    Derivation of the single head sentence

27. The Magistrate indicated notional starting sentences she would have been minded to impose if she had not decided to utilise section 18A and impose a single sentence. Those notional starting sentences were imprisonment for 21 months for the aggravated assault on D, 18 months for the assault on M, nine month for unlawful damage, six months for being unlawfully on premises, nine months for contravening the intervention orders, six months for assaulting police and four months for hindering and resisting police. In arriving at a single starting sentence of imprisonment for 28 months, it is evident that the Magistrate allowed a large degree of concurrency and/or made a large deduction for totality.

28. Although the defendant in his notice of appeal initially complained about the notional starting points for individual offences and the manner in which the Magistrate reached the single starting point of 28 months, ultimately the defendant accepts on appeal that the material question is whether that single starting point is manifestly excessive rather than examination of the individual notional starting points.

29. There have been a number of decisions of the Full Court in which varying opinions have been expressed as to the necessity or desirability of identifying separate notional sentences in various circumstances in which section 18A is utilised.[7] Those decisions generally involve cases in which an offender has been sentenced utilising section 18A for two or more separate incursions into criminal conduct or for conduct extending over a prolonged period.

    [7]    See, for example, R v Major (1998) 70 SASR 488 at 490 per Doyle CJ, 497-498 and Olsson J; R v Nylander [2003] SASC 191, (2003) 228 LSJS 24 at [81]–[85] per Bleby J (with whom Prior and Sulan JJ agreed); R v Van der Horst [2006] SASC 243 at [22]-[23] per Gray J (compare White J at [81]-[92]); R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398 at [13]-[32] per Gray J (compare White J at [73] –[89] and Kourakis J at [93] –[110]); R v Bagnato[2011] SASCFC 161, (2011) 112 SASR 39 at [35]-[42] per Gray and Sulan JJ (compare Peek J at [124]-[152]).

30. In the present case, essentially there was only a single incursion by the defendant into criminal conduct over the course of less than one hour. All of the offences of which M and D were the victims were committed within 10 minutes and there was a substantial overlap between those offences. Thus, some of the threats of force by the defendant amounted to assault against both M and D; some of the unlawful damage amounted to assault against M; being unlawfully on premises was part and parcel of the assaults and unlawful damage; and the fact that the defendant was breaching the intervention order was an aggravating feature of all of those offences as well as being an offence in its own right. In these circumstances, there was no utility in the Magistrate indicating separate notional starting points for each individual offence of which M or D was the victim. It was not desirable to do so because it involved a measure of unreality to attempt to ascribe a particular notional sentence to part of what was inseparable composite conduct.

31. In one sense, the offences of assaulting, resisting and hindering police were separate from the offences of which M and D were the victims because they occurred later than, albeit immediately after, those offences and because they involved different victims. However, in another sense they were a continuation of the same violent, uncontrolled conduct in which the defendant simply turned his aggression from M and D to the police officers as soon as they arrived. While there was no positive reason for the Magistrate not to ascribe a notional collective sentence to the offences of which the police officers were victims, given the continuous nature of the defendant’s conduct, there was no particular advantage in doing so.

    Specific errors

32. Leaving aside for the time being the defendant’s contention that the sentence was manifestly excessive, the defendant contends that the Magistrate made three specific errors relating to the facts comprising the offending, the defendant’s lack of remorse and the defendant’s psychiatric diagnosis.

33. On appeal, the defendant does not clearly articulate any specific error said to have been made by the Magistrate in relation to the facts comprising the offending. The Magistrate summarised the offending and I am satisfied that the Magistrate made no material error in this respect.

34. The Magistrate formed the view that the defendant did not have insight into his criminal behaviour and did not show real contrition or remorse. The defendant wrote a letter to the Magistrate which was given to the Magistrate at the time of final sentencing submissions. In that letter, he described his behaviour towards M and D as disappointing and his actions as appalling. He expressed remorse and regret. Nevertheless, it was open to the Magistrate, based on the psychiatric and presentence reports, to form the view that the defendant did not have significant insight into his conduct or experience significant remorse or regret. I am not satisfied that the Magistrate erred in this respect.

35. The only specific reference by the Magistrate to Dr Rose’s report was in the context of the Magistrate’s observation that there was nothing that suggested that the defendant had any insight. The Magistrate made no reference to the defendant’s mental health history or to his suffering an adjustment disorder with depressive features in November 2013 when he committed the offences.

36. It is evident from the psychiatric and presentence reports that the defendant needs significant supervision upon his release and needs to undergo counselling as recommended by the community corrections officer. It is in the interests of both the community and the defendant that this extend over a substantial period of time.

37. The Magistrate was justifiably appalled at the defendant’s continuing violence directed at M and the dysfunctional relationship between them. However, the Magistrate gave insufficient weight in assessing the defendant’s prospects of rehabilitation to his previous relationships in which there was no violence, his lack of any prior convictions for violence before his relationship with M, the subsequent support by his former partner and the psychiatric illness he was suffering at the time of the offending involving an adjustment disorder with depressive features and anxiety.

38. In the circumstances, the exercise of the sentencing discretion miscarried and the defendant should be sentenced afresh on appeal.

39. Given this conclusion, it is not necessary to consider the defendant’s contention that the sentence imposed by the Magistrate was manifestly excessive.

    Resentencing

40. Taking into account the interests of the community, the serious nature and extent of the offending, the defendant’s history and personal circumstances and his prospects of rehabilitation if he undergoes a sustained period of supervision and counselling, I resentence the defendant on the following basis.

41. Utilising section 18A of the Sentencing Act, I adopt a starting point of imprisonment for one year and ten months. I reduce this by approximately 30 per cent to 15 months and 14 days on account of his pleas of guilty. I allow a credit of three months and 25 days for time spent in custody and on home detention. This results in a sentence of 11 months and 19 days commencing on 17 November 2014.

42. I suspend the balance of the sentence after the defendant has served five months and five days (after which the defendant will have spent a total of seven months in custody and ten months on home detention) upon his entering into a bond to be of good behavior for 18 months.

    Conclusion

43. I allow the appeal. I set aside the sentence imposed by the Magistrate. I sentence the defendant for all offences to a single sentence of imprisonment for 11 months and 19 days, to be partially suspended after the defendant has served five months and five days imprisonment upon his entering into a bond to be of good behavior for 18 months, to be under the supervision of a community corrections officer and to undergo such psychological or other counselling or treatment as is directed by his community corrections officer.