Nichols v Police

[2005] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

NICHOLS v POLICE

Judgment of The Honourable Justice Gray

23 March 2005

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW

EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL - YOUNG CHILDREN

Appeal against conviction and sentence - appellant convicted by magistrate of assault occasioning actual bodily harm - incident involved road rage - assault occurred after appellant followed victim to his property - appeal on grounds that sentence imposed was manifestly excessive and that magistrate erred in not suspending the sentence.

Discussion of sections 9 and 12 of the Evidence Act 1929 (SA) and children's evidence - consideration of magistrate's acceptance of the evidence of a child - consideration of magistrate's exercise of discretion - discussion of ablilty of appellate court to interfere with exercise of discretion - consideration of sentencing principles.

Held - appeal on conviction dismissed - appeal against sentence allowed for limited purpose of suspending term of imprisonment imposed by magistrate - appellant to enter into a three-year good behaviour bond and to perform fifty hours of community service.

Evidence Act 1929 (SA) s 9 and s 12; Evidence (Miscellaneous) Amendment Act 1999 (SA) s 5; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11 and s 19; Criminal Law Consolidation Act 1935 (SA) s 40, referred to.
Papps v The Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; R v Green (2001) 78 SASR 463; R v McKenzie [2001] SASC 279; R v Power (2003) 226 LSJS 337; M v R (1994) 181 CLR 487 at 493; Devries and Anor v Australian National Railways Commission and Anor (1983) 177 CLR 472; R v Starrett (2002) 82 SASR 115; R v Climas [1999] SASC 457; Fox v Percy (2003) 214 CLR 118; Bekker v Police (2001) 120 A Crim R 170; House v R (1936) 55 CLR 499; Ienco v Kraft and Modra (1990) 53 SASR 40; Veen (No 2) (1988) 164 CLR 465; Reeves v Police (1997) 70 SASR 451; Lock v Police [1999] SASC 50; Balnaves v Police [2001] SASC 159; Toohey v Police [2001] SASC 44; DPP v Coleman (2001) 120 A Crim R 415; Vartzokas v Zanker (1989) 51 SASR 277; Daly v Police [1993] SASC 143; G v Police (1999) 74 SASR 164, considered.

NICHOLS v POLICE
[2005] SASC 106

Magistrates Appeal

GRAY J:

Introduction

1. This is an appeal against conviction and sentence.

2. The appellant was charged with assault occasioning actual bodily harm.  The incident the subject of the charge was described by the magistrate as one of road rage.

3. The appellant went to the home of Mr Peters, on 2 January 2003 at around 3.15pm, to complain about Mr Peters’ manner of driving.  The appellant had followed Mr Peters to his home.  Mr Peters entered the front yard of his premises and began the process of shutting the front gate to his premises when the incident took place.

4. At trial, Mr Peters’ account was that he became aware of the appellant entering his premises.  Mr Peters said words to the effect of: “Do you want somebody? Do you want something?”  The appellant started to yell at him, saying that he was going to slice or cut his throat.  The appellant then hit Mr Peters in the face.

5. Mr Peters, said that he had taken up a metal bolt, intending to use it to hold the gate closed.  He dropped the peg when the appellant hit him, fell to the ground and become entangled with the appellant.  He said that, whilst on the ground, the appellant picked up the bolt.  He later became aware of a mark to his chin.  He believed the mark was the result of the appellant striking him with the bolt.  Mr Peters said that the appellant had had his legs around Mr Peters’ neck and was trying to choke him.  Mr Peters’ wife and eleven-year-old daughter, Sheena, witnessed the incident and gave evidence generally in support of Mr Peters' account.

6. The appellant provided a radically different version of events.  He said that when he arrived at the premises, Mr Peters was in the process of shutting the gate in front of him.  The appellant said, “Why can’t you use the right-hand lane, you bastard?” Mr Peters responded, “Give way to your right, give way to your right.”  The appellant said, “That’s twice you’ve done that”, and indicated with his hands.  Mr Peters, who was then less than a metre away, said, “This is private property.  Get off, get off.”

7. It was the appellant’s case that Mr Peters appeared agitated and came towards him.  The appellant took a step back and raised his hands up in a defensive motion.  He then felt a blow to the left side of his head above the eye.  He took a further step back, felt what he thought was the fence at his back and began to lean on it.  He then fell to the ground.  Mr Peters then straddled his body with the gate-bolt in his hand.  The appellant twisted the bolt from Mr Peters, who then hit him again.  They separated.  The appellant went to his car.  He saw Mr Peters shaking his fist at him.

8. The appellant denied having threatened to slice or cut Mr Peters’ throat.  He denied striking Mr Peters, picking up the bolt from the ground, putting his legs around Mr Peters' neck and trying to squeeze his neck.  He said he did not put his finger across his throat indicating a slicing motion.

   Approach of the Magistrate

9. As earlier observed, the appellant was convicted of the charge of assault occasioning actual bodily harm.

10. The magistrate heard evidence from the four witnesses to the incident.  This included the evidence of the victim’s daughter, Sheena Peters.  Sheena was eleven years old at the time of trial.  Her parents are both deaf and have limited capacity to communicate.  She signs for her parents in situations where they are unable to communicate effectively.  Sheena assisted her father in giving his statements to police.  She gave evidence of this assistance, as did Mr Peters and Kym England, the police officer who took the statement.

11. There was some disagreement at trial with respect to the manner in which the incident commenced.  Sheena said the appellant had driven into the driveway in such a way that the gate could not be shut.  The appellant claimed to have parked his car on the curb and walked to the driveway. The magistrate preferred the evidence of Sheena as to the manner in which the incident commenced.  The magistrate noted that the appellant told the police that he wanted to speak to Mr Peters without having the gate shut on him.  The magistrate further observed:

    It would, therefore, seem to me to be logical he would put his car in such a location to stop the gate being shut because, on his evidence and on his statement to the police, his concern was that once Mr Peters shut the gate there was no way that he could speak to him. The defendant’s own assertion of his reason for going to the premises lends credence to Sheena’s evidence.

12. The magistrate was satisfied beyond reasonable doubt that the appellant struck Mr Peters.  In considering the evidence of all the witnesses, the magistrate took into account the fact that Mr Peters, Mrs Peters and Sheena were family and could be expected to be supportive of each other.  She also took into account the fact that the appellant was the only person present who could give evidence on his part as to what occurred.  The magistrate considered:

    Each of the witnesses, Mr Peters, Mrs Peters and Sheena I considered to be extremely careful, honest and observant witnesses. I do not believe they have tailored their evidence in any way.

13. The magistrate noted that Mr Peters had given evidence that, immediately after the incident, as the appellant walked off, Mr Peters himself struck the appellant to the back. She took this into account when assessing his credibility:

    It seems to me to be a very surprising comment for someone to make if, in fact, they’re attempting to paint themselves in the best light.

    The magistrate further noted that she was not impressed by the appellant’s manner of giving evidence.

14. The magistrate found that at the time the appellant went to the premises he was upset and challenged Mr Peters as to his manner of driving.  She accepted that the appellant had some concerns about Mr Peters’ manner of driving.  However, she did not accept that the appellant acted in self-defence when he struck Mr Peters.  The magistrate found that, as a result of that blow, they fell to the ground.  The magistrate was not satisfied beyond reasonable doubt that the appellant deliberately or intentionally struck Mr Peters with the metal peg.

15. There was evidence before the court that as a result of the assault Mr Peters suffered a sore shoulder, which caused him pain for some time after the incident. The magistrate noted:

    exactly what caused [the injury] is not clear but I would assume, from the evidence before me it was caused at the time when [Mr Peters and the appellant] were rolling on the ground, or indeed, when they hit the gate. The injury is as a result of the initial whole incident which is part of one ongoing assault. In those circumstances I am satisfied that the bodily harm is as a result of the assault even though I cannot be satisfied it was as a result obviously of the initial punch.

16. The magistrate was of the view that the manner in which the appellant sustained an injury to his head was something upon which she was not able to reach a conclusion.  However, she noted that the appellant and Mr Peters were rolling on the ground and that the appellant hit the gate at some stage.  She did not accept that Mr Peters struck the appellant to the eye.

17. When sentencing, the magistrate imposed an eight-month sentence of imprisonment and declined to exercise her discretion to suspend the sentence.

    Appeal Against Conviction

18. Counsel for the appellant submitted that the conviction was unsafe, unreasonable and unable to be supported by law.  Counsel said that the evidence of Sheena was tainted ab initio.  Counsel contended that the magistrate correctly identified Sheena’s evidence as being “critical” to the prosecution case.  Counsel accepted that the magistrate correctly directed herself to examine the child’s evidence carefully.  However, counsel for the appellant submitted that she did so having regard only to the child’s age.  The magistrate observed:

    The evidence of Sheena is, in my view, quite crucial in this matter.  I note she is only 11 years of age and, therefore is quite young to be giving evidence in this matter.  There is no longer any requirement for corroboration of the evidence of a child witness however I have considered he evidence carefully.  To some extent her evidence is corroborated by her parents, although there is obviously a criticism [sic] evidence of family member would be expected to substantiate each other.

19. On appeal, counsel for the appellant pointed out that defence counsel at trial had drawn the magistrate’s attention to the need for a high degree of caution.  Counsel for the defence at trial had submitted that, quite apart from the matter of her youth, Sheena’s evidence was also tainted.  This was because, as the appellant and his wife had difficulty with hearing and  speaking, Sheena had acted as an interpreter when her parents were providing statements to the police.  Counsel said that, as a result, Sheena’s evidence could not be viewed as independent.  The magistrate addressed this criticism as follows:

    It has been submitted by the defence, not surprisingly, that there is some concern with respect to the manner in which the statements were taken from the Peters family on the night of the incident.  It has been noted Sheena was used as an interpreter and, therefore, obviously heard what both Mr Peters and her mother had to say.  Therefore, by implication, I guess it is submitted she has had an opportunity to align her evidence with that of her mother and father having been aware of what they had said in their statements.

20. Counsel for the appellant argued that the expression, “by implication, I guess”, demonstrated the magistrate’s misconception of the defence criticism of Sheena’s evidence.  It was the defence case that there was nothing implicit about the difficulties associated with Sheena’s evidence.  Counsel for the appellant complained that the magistrate’s reasons on this issue were inadequate.  Counsel for the appellant said that, having regard to Sheena’s involvement in the taking of the police statements from her parents, the magistrate ought to have considered her evidence as unreliable.  Counsel submitted that the magistrate failed to address this issue properly in her reasons; failed to give sufficient weight to the criticism; and, as a result, failed to exercise the requisite degree of caution with respect to a witness whose evidence was regarded as critical.  Counsel for the appellant submitted that this failure resulted in an unsafe and unsatisfactory conviction.

21. Counsel for the respondent acknowledged that the magistrate was obliged to give adequate reasons.  Counsel for the respondent accepted that it is an error of law for a judge not to give sufficient reasons to enable an appeal court to understand how the decision was reached. [1]  However, the extent of the reasons necessary will depend on the circumstances.[2]  Counsel for the respondent said that the reasons would be adequate if they demonstrated how the prosecution had established each of the offences beyond reasonable doubt.[3]

    [1] Papps v The Police (2000) 77 SASR 210

    [2] R v Keyte (2000) 78 SASR 68

    [3] R v Green (2001) 78 SASR 463, R v McKenzie [2001] SASC 279

22. In relation to the appellant’s criticism of the treatment of Sheena’s evidence, counsel for the respondent submitted that, where the magistrate's acceptance of the evidence of one witness against that of another rests substantially on the impression made by the witness in giving evidence, there is no need for any detailed explanation to be provided for that conclusion.[4]  Counsel for the respondent said that the magistrate had properly considered all matters that could have impacted upon Sheena’s credibility.

    [4] R v Power (2003) 226 LSJS 337

23. Counsel for the respondent further submitted that an appellate court ought to be reluctant to interfere with the findings of credibility made by a magistrate who had the advantage of observing the witness giving evidence.  Counsel said that, where findings of fact based on the credibility of a witness had been made, those findings should stand unless it can be shown that the magistrate has either acted on evidence which was inconsistent with facts already incontrovertibly established, or acted on a finding which was glaringly improbable.[5]

    [5] M v R (1994) 181 CLR 487 at 493; Devries and Anor v Australian National Railways Commission and Anor (1983) 177 CLR 472 at 479

24. Counsel emphasised that the magistrate had considered that the prosecution witnesses were “extremely careful, honest and observant witnesses”.  Counsel pointed out that the magistrate had considered the inconsistencies between the accounts of the prosecution witnesses and had weighed each version before reaching this conclusion.

25. Counsel for the respondent further contended that it was open to the magistrate to accept the evidence of Mr Peters.  Counsel said that his evidence was, to a large degree, confirmed by other evidence.  Counsel further submitted that it was open to the magistrate to reject the evidence of the appellant.  The magistrate observed:

    I regret [sic] the evidence of the defendant with regard to the manner in which the incident commenced. I was not impressed by his manner of giving evidence or the reasons given for his going to the premises.

26. Counsel for the respondent submitted that, in light of all findings made by the magistrate, it was open to the magistrate to find beyond reasonable doubt that the incident occurred as described by the prosecution witnesses rather than as described by the appellant.

    Evidence of Children

27. Statutory changes[6] introduced in 1999, address the position of the child witness. Section 12 of the Evidence Act 1929 ( SA) now provides:

    A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).

    Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child.

    [6]  These changes were introduced by section 5 of the Evidence (Miscellaneous) Amendment Act 1999 which came into operation on 27 June 1999.

28. Section 9 of the amending legislation is also relevant. Section 9 provides:

    (1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.

    (2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—

    (a)     the judge—

    (i)is satisfied that the person understands the difference between the truth and a lie; and

    (ii)    tells the person that it is important to tell the truth; and

    (b)     the person indicates that he or she will tell the truth.

    (3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.

    (4) If unsworn evidence is given under this section in a trial by jury, the judge—

    (a)     must explain to the jury the reason the evidence is unsworn; and

    (b)     may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

    (5) A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation.

29. These provisions have been the subject of recent judicial comment.  In R v Starrett[7] Doyle CJ observed:

    In my opinion the common law rule, in its application to a child giving unsworn evidence, should be treated as abrogated by s 9(4) of the Act. I consider that a necessary implication of the requirement, on request, to warn a jury of the need for caution is that there can be no rule requiring a warning, as a matter of course, of the danger of acting upon the uncorroborated evidence of a young child. If the common law rule were still applicable, then as a matter of course the Judge would be called upon to give a warning that would be, to my mind, a stronger warning than the warning required by s 9(4) of the Act. I appreciate that s 9(4) could be treated as directed solely to the significance of the fact that the evidence is unsworn. But it would be confusing for a jury to be given separate warnings related to the fact that the evidence is given unsworn and related to the maturity and impressionability of a child witness. It might be thought that there would be little point in giving the warning required by s 9(4), if the common law rule continued to apply. Furthermore, bearing in mind that s 12A and s 9 were enacted at the same time, I think it likely that the intention was to replace the common law rule entirely, and to make statutory provision for children giving evidence sworn and unsworn. It is for those reasons that I have concluded that a necessary implication from the enactment of s 9(4) is the displacement of the common law rule relating to unsworn evidence given by children.

    But that does not mean that s 9(4) stands alone. In the background remains the common law requirement to warn or to caution a jury whenever necessary to avoid “a perceptible risk of miscarriage of justice arising from the circumstances of the case”: Longman v The Queen (1989) 168 CLR 79 at 86 Brennan, Dawson and Toohey JJ, Bromley v The Queen (1986) 161 CLR at 319 Gibbs CJ and at 325 Brennan J. See also Crampton v The Queen [2000] HCA 60; (2000) 176 ALR 369 at [39]-[45] Gaudron, Gummow and Callinan JJ; at [125]-[130] Kirby J. I consider that this common law requirement should not be regarded as abrogated by or as inconsistent with the requirements of s 9(4) of the Act. The requirement to warn or to comment will depend upon the circumstances of the case. It will arise only if there is a particular matter calling for a warning or comment. It does not arise simply because the witness is a child. The circumstances of the case will dictate the matters by reference to which the warning or comment is made, and the strength of the warning or comment. This requirement is different from a requirement as a matter of course, in all cases, to give a warning. This requirement can also be seen as operating consistently with s 9(4) of the Act.

    [7] (2002) 82 SASR 115 at 124

1. Section 9(1) enacts a statutory presumption that a person is capable of giving sworn evidence in any proceedings unless the judge otherwise determines for the reasons outlined in the section itself. The presumption in section 9(1) applies to persons of all ages.[8]

   [8] R v Starrett (2002) 82 SASR 115 at 119

2. There is no obligation on the part of the judge to conduct any inquiry under section 9(1) unless there is some matter relating to the person who is to give evidence which raises in the judge’s mind that the presumption may be rebutted.[9] Mental illness or psychological impairment may suggest such an inquiry is required. Mere young age does not, but it is to be expected that there will usually be the need to conduct some inquiry of a child of very tender years. There may be features of the evidence to be given, or of what a witness has said in their statement, or otherwise to an investigator, which suggests the need for an inquiry. In such circumstances the presumption contained in section 9(1) will be rebutted.[10]

   [9] R v Starrett (2002) 82 SASR 115 at 119

   [10] R v Climas [1999] SASC 457 at [133]

3. It is not necessary for the Court to conduct an inquiry into a child’s ability to give sworn evidence in every case. Such an inquiry will only be required where the presumption in section 9(1) is displaced.

4. Statutory amendments appear to have followed the publication of the Australian Law Reform Commission report concerning children’s evidence.  That report challenged the common law traditional view that children were unreliable witnesses.  It noted the perception that children are prone to fantasy, suggestibility and inaccuracy, however the report went on to deplore judicial warnings that effectively discriminate against child witness, particularly when those warnings are based upon individual judge’s assumptions and prejudices about the child’s ability to give reliable evidence. 

5. The modern approach to child witnesses appears to suggest that such an inquiry or related warning ought only be undertaken where a party request such an inquiry or warning or where exceptional circumstances exist.[11]

   [11] R v Climas [1999] SASC 457; R v Starrett (2002) 82 SASR 115. See also The Australian Law Reform Commission, Children’s Evidence (1977) Vol 84 at [14.73]

6. In the present case, the magistrate made no inquiry.  The statutory presumption applied.  However the magistrate took a very cautious approach to Sheena’s evidence.  There does not appear to have been any evidence before the court suggesting that Sheena was unable to sufficiently understand her obligation to be truthful when giving sworn evidence.  The magistrate’s over–cautious approach does not appear to have been necessary in the circumstances, nor does it accord with modern treatment of the evidence of child witnesses.

   Conclusion on Appeal Against Conviction

7. In the present case, the magistrate closely considered Sheena’s credibility.  As earlier observed, the magistrate further considered the criticism of Sheena’s evidence in relation to her close family relationship with the victim of the offending.  The magistrate warned herself about accepting the evidence.

8. The magistrate directed herself on the dangers of relying on Sheena’s evidence and also gave detailed consideration to that evidence.  She noted those parts of Sheena’s evidence that differed from the evidence of her parents.  She subjected Sheena’s evidence to close and careful analysis.

9. The issues at trial were factual and involved an assessment of witnesses’ credibility.  In such circumstances an appellate court should have full regard to the magistrate’s advantage in seeing and hearing the witnesses.  In M v R Mason CJ, Deane, Dawson and Toohey JJ observed:[12]

   Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

   [12] (1994) 181 CLR 487 at 493

10. In Devries and Anor v Australian National Railways Commission and Anor[13] Brennan, Gaudron and McHugh JJ observed:

    No doubt the inconsistencies between the plaintiff’s out of court statements and his evidence at the trial were matters which might make a tribunal of fact hesitate to accept hie evidence. But the trial judge had the great advantage of seeing the plaintiff in the witness box over several days. This gave the trial judge an incomparable advantage over an appellate court in determining what reliability could be placed on the sworn evidence having regard to the out of court statements of the plaintiff. … .

    More than once in recent years, this Court has pointed out that a finding of face by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his [or her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

    [13] (1983) 177 CLR 472 at 479, see also Fox v Percy (2003) 214 CLR 118

11. The magistrate’s acceptance of Mr Peters’ account of the incident was open on the evidence.  Her treatment of Sheena’s evidence and her rejection of the majority of the appellant’s account of the incident were appropriate in the circumstances.  The appeal against conviction is dismissed.

    Appeal Against Sentence

12. As earlier observed, the magistrate imposed an immediate eight-month custodial sentence.  When sentencing, the magistrate had regard to the appellant’s prior offending.  In 1987, the appellant pleaded guilty to a charge of assault arising from a road incident.  He was fined $40.  In 2002, the appellant was again charged with assault.  On this occasion, he was released on a bond without conviction.  The present offending did not give rise to a breach of that bond.  The appellant has no other criminal antecedents.

13. Counsel for the appellant submitted that the sentence imposed by the magistrate was manifestly excessive.  Counsel for the appellant said that the magistrate erred in failing to suspend the sentence of imprisonment.  Counsel pointed out that although the appellant had a prior record for assault, the penalties imposed for both assaults were modest and the period between the offences lengthy.  Counsel said that the magistrate gave insufficient consideration to the appellant’s good character and his excellent prospects for rehabilitation.  Counsel submitted that the magistrate ought only to impose an immediate order for imprisonment as a penalty of last resort.[14]  This case, counsel for the appellant said, was not such a case.

    [14] Bekker v Police (2001) 120 A Crim R 170 at [30] –[31]

14. Counsel for the respondent submitted that the sentence imposed by the magistrate was not manifestly excessive and that the sentencing remarks did not disclose any error that might suggest any miscarriage of that sentencing discretion.  Counsel for the respondent said that an appellate court ought not to interfere with the discretion of the magistrate merely because it considers that the sentence is more or less severe than the appellate court would have imposed.[15]

    [15] House v R (1936) 55 CLR 499 at 505; Ienco v Kraft and Modra (1990) 53 SASR 40 at 42-43

15. Counsel for the respondent contended that the appellant’s offending was properly regarded by the magistrate as “serious”. Counsel said that the sentence of eight months’ imprisonment was appropriate having regard to the following matters:

    -       that this was an assault arising out of a road rage incident;

    -that the attack took place in front of the victim’s family and on his premises following a decision by the appellant to drive some two kilometres to speak to the victim;

    -that the victim had a vulnerability  (namely, that he could not speak clearly or clearly understand the appellant), and that the victim’s disability was known to the appellant prior to this incident;

    -that the appellant had a previous conviction for assault and another appearance before the court where a conviction was not recorded;

    -that it was necessary to deter the appellant and the wider community from such unjustified and violent offences;

    -that it was necessary to punish the appellant adequately for these offences; and

    -       that the appellant showed no contrition or remorse.

16. Counsel for the respondent submitted that the magistrate took into account all matters relevant to the appellant’s background and past offending, including the appellant’s explanation for that offending, and the impact of imprisonment upon his family, his business and his employees.

17. Counsel for the respondent submitted that the decision as to whether or not to suspend the sentence was an exercise of sentencing discretion that should not be interfered with in the absence of good reason. Counsel said that the magistrate had not erred in any of the circumstances in declining to exercise her discretion to suspend the sentence of imprisonment imposed. The magistrate’s reasons described the offending as serious. General and personal deterrence overwhelmed those factors that would warrant a more lenient sentence. Counsel for the respondent said this was consistent with sections 10 and 11 of the Criminal Law (Sentencing) Act 1988 (SA).

18. Counsel for the respondent said that, in arriving at the sentence of imprisonment, the magistrate gave adequate consideration both to the relevant case law on road rage type offending and to the principles of general deterrence highlighted in those cases.

19. In response to the appellant’s contention that the magistrate placed undue weight on the appellant’s previous court appearances, counsel for the respondent submitted that the magistrate’s approach to the appellant’s antecedent was in accordance with the principles discussed by the High Court in Veen (No 2).  In Veen (No 2)[16] Mason CJ, Brennan, Dawson and Toohey JJ observed:

    There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.

    [16] (1988) 164 CLR 465 at 477

20. Counsel for the respondent said that the magistrate did not use the appellant’s previous court appearance in an inappropriate way.

    Conclusion on Appeal Against Sentence

21. General and personal deterrence are important factors in sentencing.  However, there is also a need to balance the deterrent purpose of punishment with the aim of rehabilitation of the offender.  As observed in Bekker v Police,[17] the sentence imposed must be consistent with both the aims of community protection and the reclaiming of an individual who has lapsed into wrong doing.  In Vartzokas v Zanker[18], King CJ considered that:

    Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. ... The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. ... It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person.

    [17] (2001) 120 A Crim R 170

    [18] (1989) 51 SASR 277 at 279

22. As observed by this court in Reeves v Police[19], Lock v Police[20], Balnaves v Police[21], and Toohey v Police,[22] general and personal deterrence are particularly important considerations when sentencing offenders for violence arising out of frustration on the road.  So-called “road rage” offences are of serious public concern, and penalties imposed for such offending ought to reflect this.  There is a strong community interest in individuals being deterred from taking the enforcement of road rules into their own hands.  In Reeves, Doyle CJ made the following observations when rejecting an appeal against a suspended sentence of imprisonment:[23]

    ... in cases such as this, where the conduct involves a loss of temper in the course of driving, the need for general deterrence necessitates a stern response.  A clear message needs to be given to the community that frustration on the road is not to be translated into violence.  Especially is this so in cases such as the instant one, where the appellant acknowledges he struck the car, not once, but on two or three occasions.  The offence was committed in circumstances such that the magistrate was entitled to consider imprisonment as an option.  The magistrate appears to have attached some weight to the appellant’s prior record.  He has a very bad criminal record.  It reflects a flagrant disregard for the law spanning a considerable period of time.  It extends from 1980, as a juvenile, to 1995.  It includes driving offences, minor drug offences, dishonesty offences and offences involving violence.  The appellant has been given plenty of chances to reform.  He has been in prison before.

    [19] (1997) 70 SASR 451

    [20] [1999] SASC 50 (Nyland J)

    [21] [2001] SASC 159 (Perry J)

    [22] [2001] SASC 44 (Olsson J)

    [23] (1997) 70 SASR 451 at 453

23. In Toohey,[24] Olsson J endorsed these remarks:

    Whilst I agree that the mere fact that the assault under consideration arose in the context of a “road rage” incident cannot properly be resorted to as a justification for elevating an offence of common assault above its inherent gravity, the fact remains that road rage incidents are becoming a matter for serious social concern. The Chief Justice stressed, in Reeves, that the need for general deterrence in such cases does necessitate a stern response. As he put it “A clear message needs to be given to the community that frustration on the road is not to be translated into violence.”

    [24] [2001] SASC 44 at [22]

24. The appellant is a 59-year-old man and father of two children.  He owns and works at a butcher shop in the Adelaide Hills and has an interest in other butcher shops.  He has built up his business over time and is an active member of his local community.  As earlier observed, he has appeared in court on two prior incidents, both involving assault charges, one of which could be described as arising from a road incident.  The penalties imposed for this offending, namely a fine of $40 and a bond without conviction, indicate that the offending was of a relatively minor nature.  The appellant has otherwise been of good behaviour.  In the circumstances, the appellant should be considered a good candidate for rehabilitation.

25. The appellant’s high standing in the community and his commitment to his business and family gave rise to the need for the magistrate to place considerable weight on the appellant’s prospects for rehabilitation when sentencing. 

26. The magistrate proceeded on the basis that the appellant had a history of violent offending.  She treated the appellant’s prior offending as more serious than was justified.  In the course of the sentencing remarks, the magistrate described the 2001 offending as having resulted in a conviction.  However, in  2001 the court proceeded without recording a conviction.

27. The magistrate’s sentencing remarks did not adequately address the need for rehabilitation.  Nor did she adequately consider her power to suspend.  In the circumstances, the appeal against sentence is allowed.  It is appropriate for this court to re-sentence the appellant. 

    Re-sentence

28. The maximum penalty prescribed for the offence of assault occasioning actual bodily harm is a term of imprisonment for a period not exceeding five years.[25]  The magistrate had power to impose a sentence of imprisonment not exceeding two years.[26]

    [25] Section 40 Criminal Law Consolidation Act 1935 (SA)

    [26] Section 19 Criminal Law (Sentencing) Act 1988 (SA)

29. It is well established that a sentence of imprisonment ought to be considered as an option of last resort.  In Ienco v Kraft Olsson J observed:[27]

    whole tenor of the [Criminal Law (Sentencing) Act 1988 (SA)] is that primary emphasis ought to be given to rehabilitation, where the evidence indicates that this may be facilitated consistently with preserving a proper balancing of other community interests such as deterrence and adequate punishment for wrongdoing.

    [27] (1990) 53 SASR 40 at 45. See also Bekker v Police (2001) 120 A Crim R 170 at [30] –[31]; Daly v Police [1999] SASC 143; G v Police (1999) 74 SASR 165

30. In the circumstances, it is appropriate to suspend the term of imprisonment imposed by the magistrate.  The appellant is to enter into a three-year bond to be of good behaviour.  The bond is to be supervised and the appellant is to attend anger management courses and such other courses as directed.  The appellant is to perform fifty hours of community service.

31. The order of the court is as follows:

    -       appeal against conviction dismissed;

    -appeal against sentence allowed for the limited purpose of suspending the term of imprisonment imposed by the magistrate;

    -the appellant to enter into a supervised three-year good behaviour bond; and

    -the appellant to perform fifty hours of community service.