Nicole Alana BASTIAN v Police
[2008] SASC 91
•7 April 2008
Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BASTIAN v POLICE
[2008] SASC 91
Judgment of The Honourable Justice Layton (ex tempore)
7 April 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against decision of magistrate - appellant pleaded guilty to one count aggravated assault and one count disorderly behaviour - magistrate imposed sentence of 15 months imprisonment with non-parole period of 9 months - magistrate not prepared to suspend sentence - appellant did not have violent history - appellant had not previously been imprisoned - whether sentence was manifestly excessive - whether magistrate gave sufficient consideration to suspension of sentence.
Held: Magistrate did not address factors which were relevant to whether sentence of imprisonment should be imposed - sentence imposed by magistrate was manifestly excessive - magistrate did not give sufficient consideration to suspension of sentence - sentence quashed - appellant re-sentenced to 5 months imprisonment suspended upon appellant entering into 12 month conditional bond - appeal allowed.
Magistrates Court Act 1991 s 42, s 45(5); Criminal Law Consolidation Act 1935 s 20(1), s 5AA(1)(d)(iii); Summary Offences Act 1953 s 7(1), s 99; Criminal Law (Sentencing) Act 1988 s 18A, s 11, s 38(1), referred to.
Wood v Samuels (1974) 8 SASR 465, considered.
BASTIAN v POLICE
[2008] SASC 91
Magistrates Appeal: Criminal
LAYTON J:
Introduction
This is an appeal against sentence imposed by a Magistrate on 22 January 2008 pursuant to s 42 of the Magistrates Court Act 1991 (SA). The appellant pleaded guilty to one count of aggravated assault and one count of disorderly behaviour contrary to s 20(1) of the Criminal Law Consolidation Act 1935 (SA) and s 7(1) of the Summary Offences Act 1953 (SA) respectively. The maximum penalty for count one is imprisonment for three years. The maximum penalty with regard to the count of disorderly behaviour is three months or, alternatively, a fine.
The Magistrate imposed a sentence of 15 months with a non-parole period of nine months. It appears that no penalty was specifically addressed in relation to count 2, but I will deal with that matter later in these reasons.
Preliminary issues
Rule 283 of the Supreme Court Rules 2006 provides that appeals must be instituted within 21 days of the judgment subject to the appeal. The appeal was filed out of time on 22 February 2008. As a consequence, the appellant sought an extension of time in which to file the Notice of Appeal on the grounds that instructions were only received on 6 February 2008 and Legal Aid funding was only received on 15 February 2008. There was no opposition by the respondent to the extension of time and, in my view, it was warranted bearing in mind that there was merit in the appeal.
Grounds of Appeal
The appellant appeals against the sentence on the grounds that the sentence imposed in all of the circumstances was manifestly excessive and that the learned sentencing Magistrate did not give sufficient consideration to the suspension of sentence.
Circumstances of Offending
I accept the factual background canvassed by the Magistrate in regard to the offence of aggravated assault but will deal briefly with the relevant facts. In January 2005 the appellant's partner was convicted of attempted rape of the victim in this matter, Natasha Carter, and sentenced to a period of imprisonment. On 12 June 2007, while her partner was in prison, the appellant encountered Natasha Carter in a doctor's surgery in Whyalla Stuart. She verbally abused her, dragged her outside and punched her. The appellant was charged with an aggravated offence of assault pursuant to s 5AA(1)(d)(iii) of the Criminal Law Consolidation Act 1935 as the offence committed against the victim was in retribution for taking legal proceedings.
The circumstances of the disorderly behaviour charge appear to relate to the conduct of the appellant when the police arrived about 15 minutes after the assault. Whilst police were attempting to consult the victim, the appellant shouted obscenities towards her. After being issued a warning by police the appellant persisted with this abusive behaviour. The police thereafter arrested her for disorderly behaviour and conveyed her to the Whyalla Police Station.
Sentencing Process
The appellant entered her guilty plea on 23 July 2007. In sentencing, the Magistrate took into account a pre-sentence report prepared by Sylvia Petkov dated 20 August 2007. It was apparent from the report that the appellant is, and was at the time of offending, addicted to intravenous amphetamines. The Magistrate noted her substance abuse had previously resulted in hospitalisation and had impaired her ability to look after her children. At the time the report was prepared the appellant had taken no steps to address her drug addiction.
The Magistrate stressed the significance of the principle of general public deterrence in matters involving a retribution assault, especially considering that the legal proceedings which were the subject of retribution were major indictable offences. This concern appears to have been the Magistrate's paramount consideration when sentencing the appellant.
It is not clear from the Magistrate's sentencing remarks whether she employed s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) by imposing one sentence for both the aggravated assault and the disorderly behaviour charges. Whilst the Magistrate makes reference to the charge of disturbing the peace, which is the subject of another file, no reference is made to the charge of disorderly behaviour. When reading the remarks, it appears that the sentence of 15 months was impliedly intended to apply not only to the charge of aggravated assault but also to the charge of disorderly behaviour. The Magistrate, in addition, dealt with the offence of disturbing the peace and recorded a conviction but without penalty.
In my view, the Magistrate was appropriately able to apply s 18A in relation to both the offence of aggravated assault and the offence of disorderly behaviour which were part of the one incident.
Whether the sentence was manifestly excessive
The appellant is a 32-year-old woman with two children. She was in a long-term relationship with the father of the children for over 10 years. She has been a regular user of amphetamines for a number of years. Sylvia Petkov, in the pre‑sentence report, describes her as having a major substance abuse problem. She has one prior incident of assault which was dealt with on 14 January 2002 without conviction.
Ms Burgess, counsel for the appellant, submits that the Magistrate failed to consider relevant considerations about the personal circumstances of the appellant, including the appellant's age; her need for treatment; her prospects for rehabilitation; the lack of a violent history; the impact of imprisonment on her family and the fact that the appellant has not previously been sentenced to a term of imprisonment.
Ms Wilkinson, counsel for the respondent, correctly conceded that, in light of the appellant's minor criminal history, the limited nature of the assault and the absence of any injury sustained by the victim other than a temporary sore nose, the sentenced imposed by the Magistrate was manifestly excessive.
It is a fundamental principle of sentencing that imprisonment should be a last resort.[1] In order to reach a just sentence, all other sentencing options must be eliminated before considering imprisonment.[2] This principle is reflected in s 11 of the Criminal Law (Sentencing) Act 1988, which provides:
(1) A sentence of imprisonment may only be imposed—
(a) if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.
[1] R v Vasin (1985) 39 SASR 45 at 48; R vJames (1985) 14 A Crim R 364 at 365-6; R vSkipper (1992) 64 A Crim R 260 at 262-3.
[2] See The Queen v O’Keefe (1969) 2 QB 29 and Wood v Samuels (1974) 8 SASR 465.
None of the provisions of s 11(1)(a) apply to this appellant. The learned Magistrate presumably applied s 11(1)(b) when imposing a sentence of immediate imprisonment. She specifically referred to the offending being serious and the principle of general public deterrence in relation to retribution offending. These are undoubtedly relevant and important matters, but there are also other matters which were pertinent to the sentencing, including the circumstances of offending as well as other considerations personal to the appellant.
In relation to the circumstances of offending, the actions of the appellant were spontaneous and impulsive. She had not sought out the victim, it was a chance meeting. No weapon was used and the physical contact with the victim was limited to dragging and one punch which caused the victim temporary discomfort. At the same time it is to be expected that the attack on the victim was unexpected, frightening and hurtful. It would also have been a further insult to the victim to be assaulted for being a complainant victim of a major indictable offence.
The appellant has two children aged approximately eight years and four years. The antecedent report revealed, as I have indicated, only one assault conviction which appears to be of such minor significance that no conviction was recorded. The appellant appears to lack some insight as to the effect of her behaviour on the victim, as expressed in Ms Petkov's report. Nonetheless, she appears to have reasonable prospects for rehabilitation. The Magistrate did not expressly address these factors which were relevant to whether a sentence of imprisonment should be imposed, as well as relevant to any non-parole period. The appellant was sentenced to half of the maximum sentence for aggravated assault after having received credit for her early plea.
In my view, this sentence standing alone was manifestly excessive. Further, the non-parole period was quite high where a shorter than normal non-parole period would have been warranted in the interests of her rehabilitation.
Suspension of Sentence
Finally, there is the question of suspension of sentence. There were no reasons given as to why the Magistrate concluded that she was not prepared to suspend the sentence but instead to impose an immediate custodial sentence. Whilst recognising that magistrates are under considerable pressure and cannot be expected to articulate all aspects of their reasoning, there was also no reference to the guiding principle for ordering suspension, namely, whether or not there was “good reason” to suspend.[3]
[3] Criminal Law (Sentencing) Act 1988 s 38(1).
The reasons of the Magistrate suggest that the same facts which led her to the sentence of imprisonment for 15 months, were also guiding her decision not to suspend the sentence. There are of course occasions where the seriousness of the offence and the offending may override other considerations such that there is no good reason to suspend the sentence. However, as Walters J intimated in the case of Wood v Samuels (1974) 8 SASR 465 at 468:
… A suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court’s clemency.
In my view, the matters I have referred to earlier, in combination with the fact that the appellant has never before had a sentence of imprisonment imposed upon her, indicate there are “good reasons” to give her one last chance to avoid imprisonment and lead a law-abiding life. In conclusion, I consider that the whole sentence was manifestly excessive and it should be set aside.
Re-sentencing the Appellant
Pursuant to s 45(5) of the Magistrates Court Act, I consider it appropriate to re-sentence the appellant.
Since the matter was before the Magistrate there are a number of further factors which Ms Burgess has drawn to my attention which should be taken into account.
The appellant has spent one month in custody and that this has had a salutary effect on her and given her a chance to reflect on the negative effects of substance abuse on all aspects of her life.
Her family has made efforts to assist her and the appellant is now prepared to accept their support and assistance. She presently lives with them and is subject to curfew conditions on her bail agreement. She now has regular contact with her children.
The appellant has remained drug-free since her release on bail pending appeal and a recent drug test resulted in a negative reading.
Funding is currently in place for her to be psychiatrically or psychologically assessed.
Her partner, with whom she wishes to continue to reside, is at present in custody on a parole warrant and is awaiting a drug matter to be dealt with in the District Court.
The appellant also has a matter pending in the District Court in relation to that same offending of her partner but it is hopeful that following negotiations this may not result in any custodial sentence.
In my view, these are all relevant factors, together with other matters that I have referred to earlier, to be taken into account when considering the appropriate sentence in relation to the two offences.
Conclusion
I consider that I have sufficient material upon which to re-sentence the appellant and believe that it is in her best interest to know the outcome now so that she can get on with her life. These offences occurred nine months ago. I consider that a single penalty should be imposed in relation to the two offences pursuant to s 18A of the Sentencing Act. Taking into account all of the factors, and in particular having regard to the seriousness of the offences and the offending, they together warrant a sentence of imprisonment.
Taking into consideration the period already spent in custody and her plea of guilty, the appropriate sentence should be five months imprisonment to commence from this date. However, I consider that there are good reasons to suspend the sentence of imprisonment, particularly having regard to her personal circumstances, and in the interests of her rehabilitation. The suspension should be on the condition of her entering into a bond to be of good behaviour for a period of 12 months with conditions.
In summary therefore, I make the following orders:
That the time within which the appellant be entitled to appeal be extended to 22 February 2008.
The appeal is allowed.
The sentence imposed by the Magistrate is set aside and the following sentence is imposed in lieu thereof.
That the appellant be convicted in relation to both offences and sentenced to imprisonment for five months to commence from the date hereof but such sentence is to be suspended upon her being prepared to enter into a bond to be of good behaviour for a period of 12 months in the sum of $2,000 on the following six conditions:
a.That she be of good behaviour and comply with all the conditions of the bond.
b.That she be under the supervision of a Community Corrections Officer for a period of 12 months and obey the lawful directions given to her by the Community Corrections Officer to whom she is assigned for the purposes of supervision and to attend all appointments as may be directed by the supervising Corrections Officer.
c.If directed by the supervising Community Corrections Officer to attend any treatment programs and drug and alcohol counselling which may be recommended from time to time.
d.That she reside at such residence as may be directed from time to time by the Community Corrections Officer.
e.That she do not approach or contact Ms Natasha Carter.
f.That she report within two working days of having signed the bond at the offices of the Department for Correctional Services at Whyalla.
The appellant is the subject of a restraining order pursuant to s 99 of the Summary Procedures Act. The restraining order to be in the following terms:
a.Not to engage in contact which intimidates Natasha Carter.
b.Not to assault, intimidate, threaten, molest, harass or otherwise interfere with Natasha Carter.
c.Not to approach, contact or telephone Natasha Carter.
d.Not to contact Natasha Carter by any means whatsoever including through a third person.
That a copy of the restraining order be served on Ms Bastian.
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