O'NEIL v Police - [2018] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
O'NEIL v POLICE
[2018] SASC 137
Judgment of The Honourable Justice Parker
18 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
This is an appeal against conviction, and an appeal against sentence.
The appellant was convicted at trial of assault under s 20(3) of the Criminal Law Consolidation Act 1935 (SA). A Magistrate sentenced the appellant to imprisonment for six months with an order that he be released after two months upon entering into a bond to be of good behaviour for two years.
In respect of the appeal against conviction, the appellant submits that the Magistrate failed to assess properly the reliability of the evidence of the victim, and also failed to weigh the victim’s account against other contradictory evidence.
In respect of the appeal against sentence, the appellant submits that the order of six months imprisonment with two months to be served was manifestly excessive having regard to the circumstances of the incident and the personal circumstances of the appellant.
Held, per Parker J, dismissing the appeal against conviction and allowing the appeal against sentence:
1. The Magistrate did not err in respect of convicting the appellant of assault, given his acceptance of the victim’s evidence accompanied by the fact that none of the other evidence was inconsistent with the victim’s version of events (at [68]).
2. The head sentence of six months’ imprisonment was outside the range of sentences that were reasonably available to the Magistrate in all the circumstances and thus manifestly excessive (at [87]).
3. The Magistrate erred in not finding that there was good reason to suspend the sentence of imprisonment in its entirety under s 96(1) of the Sentencing Act 2017 (SA) (at [91]-[93]).
Criminal Law Consolidation Act 1935 (SA) s 20; Summary Offences Act 1953 (SA) s 6A; Sentencing Act 2017 (SA) s 96, referred to.
Ratten v R [1972] AC 378; Tazroo v Police [2002] SASC 155; Mason v Police [2012] SASC 22; Fischetto v Police [2011] SASC 24; Sumner v Police [2004] SASC 158; Heubler v Police [2010] SASC 42; Gaston v Police [2004] SASC 222, considered.

O'NEIL v POLICE
[2018] SASC 137
Magistrates Appeal: Criminal

PARKER J: This is an appeal against a conviction for assault under s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and also the sentence imposed upon that conviction. The appellant was sentenced to imprisonment for six months with an order that he be released after two months upon entering into a bond to be of good behaviour for two years. For the reasons that follow, I dismiss the appeal against conviction but uphold the appeal against sentence.
Background
In January 2017 the appellant was drinking with his brother-in-law, Richard Naylon, at a relative’s house in the Umoona community, Coober Pedy. A fight broke out between the appellant, Mr Naylon and two other Aboriginal men. The police attended and subdued all four men with the use of OC spray. The appellant was significantly affected by the spray. That caused him to produce copious amounts of saliva. He had also been struck on the head during the fight and was bleeding profusely from two lacerations across his forehead.
All four participants in the fight were arrested. The appellant and Mr Naylon were taken together to the Coober Pedy police station in a cage vehicle. The vehicle was parked in a sally port for the purpose of unloading the prisoners. A short time after the vehicle arrived at the police station the door of the cage was opened by Senior Constable Ryan Daniels (SC Daniels). He alleges that the appellant, who was sitting on the floor of the van closest to the door, said to him as he opened the door “have that you cunt”. The appellant then allegedly spat blood and saliva into the eyes and mouth of SC Daniels.
After the effects of the OC spray were resolved, the appellant was interviewed by the police. I have viewed the video recording of the interview. In answer to the question as to whether he had spat in the face of a police officer the appellant stated “I don’t recollect. I might have been pissed. If I did do it I did not do it intentionally”. In response to a further question about spitting he stated “if I did I’m terribly sorry”. He also assured the police that he did not suffer from a communicable disease and asked that this information be conveyed to the officer. The appellant was not asked whether he made the remark alleged by SC Daniels. However, the effect of his response to the police questions is to deny that he used any such words. While the speech of the appellant suggests that he was still under the influence of alcohol to some extent, he gave responsive and coherent answers to each of the questions put to him about the spitting incident and also the fight.
The appellant was charged with taking part in a violent disorder contrary to s 6A(1) of the Summary Offences Act 1953 (SA) and assaulting SC Daniels, thereby causing him harm contrary to s 20(4) of the CLCA. He pleaded not guilty to both charges. The Magistrate dismissed the first count as the appellant had raised the defence of self-defence and that had not been disproven by the prosecution. His Honour also found that the prosecution had failed to prove that a person of reasonable firmness present at the incident would have feared for their personal safety.
In relation to the second count, the Magistrate found that the prosecution had not proven that SC Daniels suffered harm. The appellant was therefore found not guilty of the alleged offence under s 20(4). However, the appellant was convicted in the alternative of aggravated assault contrary to s 20(3) of the CLCA.
The evidence
The prosecution tendered affidavits from Senior Constable Karl Downs (SC Downs), Constable Aiden Allt and Constable Vanessa Welfare. Constables Allt and Welfare gave oral evidence as did SC Daniels. The prosecution also tendered two DVD discs. One disc contained footage from the CCTV cameras in the sally port area at the police station. There was no sound recording on that disc. The second disc showed the appellant being interviewed by police. The prosecution also tendered 15 A4 size coloured photographs.
The evidence of Constable Allt was that the appellant had been severely affected by the OC spray and was quite agitated. He agreed that persons sprayed with OC spray could become quite agitated and produce increased bodily fluids, including saliva. While Constable Allt had attempted to decontaminate the appellant before he was transported to the police station, he was still suffering from the effects of the spray. When he returned to the sally port after taking another person to the cells, he saw the appellant on the ground with SC Daniels standing over him. He saw blood on the appellant but did not see any blood on SC Daniels. However, SC Daniels told him that the appellant had spat upon him.
Constable Welfare stated she had taken photographs 5 to 9 and 11 to 15. She agreed that the appellant was affected by OC spray, was sweating and had blood on his face. She had not seen anything unusual about SC Daniels following his claim that he had been spat upon.
SC Daniels stated that one of the prisoners in the cage car was banging the inside of the cage and shouting “you have messed with the wrong black fellow, cunt”. The other prisoner was compliant and quiet. After arriving at the police station, SC Daniels went to get some decontaminating spray. While doing so, he could hear the compliant prisoner shouting “Help. Open the door. He’s bleeding in here”. SC Daniels went to the back of the cage car and yelled “Calm down. I’m here to help”. As he opened the door to the cage, the appellant had his back to him but then turned around. He saw a lot of blood flowing from the appellant’s head. The appellant then said “have that you cunt”. He spat blood at SC Daniels who felt it go into his mouth and eyes and could taste blood.
SC Daniels gave extensive evidence about his concerns that he had been contaminated by the appellant’s blood. After the incident he rinsed his eyes and mouth for a few minutes and then dry retched. He rinsed himself in the shower for 20 to 30 minutes. Subsequently, he had three injections and was tested after three and six months for hepatitis B and C and for the HIV virus. He had been extremely worried that he may have contracted a disease. In fact, he did not contract a disease.
The Magistrate mistakenly recorded in his reasons that Mr Naylon had been called by the defence to give evidence. However, he was a prosecution witness. Mr Naylon stated that at the time of the incident he had been “not too drunk but half way completely drunk”. He stated that the appellant was similarly affected by alcohol.
Mr Naylon also stated that he did not recall a great deal about the evening. He stated that the appellant was handcuffed and bleeding badly while in the police vehicle. He was unable to wipe the blood off his face. According to Mr Naylon, the appellant was angry because of what had happened with the other two men involved in the fight. He stated that while in the cage the appellant was “spitting more blood ’cause it was covering his face” and “just spitting all the blood off his face”. The spit was “more like just blowing and like spray ’cause it was all over” and “running down his face”. He stated that when the police officer had opened the door of the cage the appellant was sitting down next to the door and “the cop opened the door and Victor was spitting out blood which was coming from his face and that. I think that cop accidentally walked in the way or something”. He could not remember whether the appellant was looking towards the door when it was opened and nor could he remember who had got out of the vehicle first. When asked if he had seen any of the spit land on the police officer he stated “not really, no I didn’t see any of that happen”. When it was put to him that he had seen the appellant spitting as the door was opened, he stated “yeah he was just spitting blood, I didn’t see it hit the officer though”.
When asked whether he had heard the appellant say anything at all to the police officer who had opened the cage door, Mr Naylon stated “No, I can’t remember. It was a year ago”. He also could not remember how the appellant got out of the cage.
The Magistrate’s reasons
The Magistrate stated that he had not taken into account the hearsay evidence of Constables Allt and Welfare that SC Daniels had told them that he had been spat upon. His Honour also held that the statements made by SC Daniels did not possess the required spontaneity for them to be admissible under the principles discussed in Ratten v R.[1]
[1] [1972] AC 378.
The Magistrate stated that he had viewed the CCTV footage of the incident in the sally port and agreed with the defence submission that the footage did not support SC Daniels claim to have been spat upon. However, his Honour also did not accept the defence submission that the footage assisted in determining that the incident had not occurred.
The Magistrate noted that the fact that the CCTV footage showed SC Daniels removing the appellant from the rear of the cage and pulling him straight outside the frame of view was consistent with him having to take the appellant to the ground and to protect himself from further assault. His Honour also found that the photographs of SC Daniels’ clothing provided support for the suggestion that he had been sprayed with blood on his shirt. While the red coloured substance had not been analysed, against the background of the evidence his Honour was unable to imagine that the substance was anything but blood. The marks on SC Daniels trousers were consistent with blood being smeared on them when the appellant was on the ground. However, photographs 12 to 15 showed spots of a blood coloured substance on the upper parts of SC Daniels’ shirt consistent with the substance being sprayed on. His Honour held that the evidence as a whole enabled him to be satisfied beyond reasonable doubt that the substance was in fact the blood of the appellant.
The Magistrate also noted that the evidence of Constable Allt showed that the appellant was severely affected by OC spray and was bleeding from lacerations on his head. The affidavit of SC Downs supported the evidence of SC Daniels to the effect that the appellant was in a highly agitated state and yelling and swearing while being taken to the police station.
The Magistrate described the evidence of Mr Naylon as being equivocal but his Honour did not accept that SC Daniels had “accidentally walked in the way or something”.[2] The Magistrate stated the appellant must have realised that the door was being opened as he turned towards SC Daniels.
[2] The Magistrate used the words “cop accidentally got in the way”. Nothing turns on the slight misquote of Mr Naylon’s evidence. The essential point was Mr Naylon’s suggestion that the contact was accidental.
The Magistrate described SC Daniels as a good witness and he found him to be a witness of truth. His Honour did not think that he could have been mistaken when he claimed to have heard the appellant say “have that you cunt”. He dismissed any suggestion that SC Daniels’ shirt was sprayed with blood either before the appellant was removed from the cage or after he was placed on the ground. He was satisfied beyond reasonable doubt that the spray occurred shortly after the words referred to were spoken by the appellant.
The Magistrate further held that the intoxication of the appellant, the fact that he was heavily affected by OC spray, agitated and angry at being arrested and his behaviour in the cage “generally all create a likely background for the event to have occurred”. Taking all these matters into account his Honour was satisfied beyond reasonable doubt that the appellant had deliberately spat a small amount of blood at SC Daniels. Thus, the offence of assault within the meaning of s 20(1)(b) of the CLCA was made out. The appellant had intentionally made indirect contact with SC Daniels by spitting blood at him knowing that he would reasonably object to that contact. The words of aggression used at the time by the appellant made his intent and knowledge self-evident.
As previously noted, the Magistrate held that the prosecution had failed to prove that SC Daniels had suffered physical harm. In the absence of any report or the psychiatrist being called to give oral evidence his Honour declined to accept the hearsay evidence given by SC Daniels that a psychiatrist had diagnosed him as suffering from post-traumatic stress disorder. However, his Honour found the appellant guilty of the lesser offence of aggravated assault under s 20(3) of the CLCA.
Sentencing remarks
The Magistrate referred to what he described as matters of public interest. His Honour stated that in addition to general deterrence there was also “some need to reflect the support that the courts offer to the police when they perform their duty”. The Magistrate noted that SC Daniels was clearly very distressed following the incident. His Honour referred briefly to the appellant’s personal circumstances and noted that he had a relatively limited offending history. The more serious offences committed by the appellant when he lived in Western Australia had occurred at a time when he was addicted to methamphetamine. He had cured himself of that addiction.
The Magistrate observed that in his view the personal culpability of the appellant was reduced by a number of factors. He had been assaulted and injured by other men and was defending himself. In addition, he was significantly affected by OC spray and that had the effect of increasing his production of saliva. The Magistrate accepted that when interviewed at the police station the appellant was remorseful. His Honour rejected the prosecution suggestion that the appellant had been flippant when interviewed. While the appellant was moderately drunk, that could not be a mitigating factor.
The Magistrate noted that the maximum penalty for the offence of aggravated assault against police was imprisonment for three years. But for the appellant’s reduced culpability, the Magistrate indicated that he would have imposed a sentence of eight months imprisonment. His Honour reduced that sentence to six months because of the reduced culpability.
The Magistrate considered whether or not the sentence should be suspended. His Honour held that the offence was so serious that he could not wholly suspend the sentence. However, his Honour ordered that the appellant serve two months imprisonment and then be released upon entering into a bond to be of good behaviour for two years. In view of the steps being taken by the appellant to deal with his alcohol consumption the Magistrate did not order any supervision.
Personal circumstances of the appellant
The appellant is an Aboriginal man. He was aged 32 years at the time of the offence. He was born in Western Australia and attended school in that State. He is the father of four children, three from previous relationships and an infant son from his current relationship.
The appellant was educated to year 10 level. He holds the necessary licences or approvals to operate a forklift and a front end loader. He also holds a ‘white card’, a ‘high risk card’ and an up-to-date first aid certificate. He has also completed a Certificate II in general construction. For six years up to 2014 he worked in laboratories in Kalgoorlie analysing samples of gold and nickel. At the time of his arrest the appellant had been working for six months with a construction company as a driver. He lost his job as a result of his bail being revoked in response to an unrelated charge.
The appellant’s partner works for a public sector agency in Coober Pedy. He looks after their son while she is at work and also takes his partner to work as she does not hold a driver’s licence.
The appellant acknowledges that he has a problem with alcohol. A letter signed by two therapists at the Umoona Tjutagku Health Service Aboriginal Corporation in Coober Pedy was provided to the Court. The authors stated that the appellant had referred himself to drug and alcohol counselling services and had previously been receiving ongoing support from the health service and drug and alcohol services from April 2018. The appellant had used harm reduction strategies to reduce his alcohol issues and had managed to cut down his consumption. He was also receiving counselling for his anger management.
Grounds of appeal
The appellant’s grounds of appeal are as follows:
Conviction
1.   The conviction for Aggravated Assault was unsafe and unsatisfactory, and/or against the weight of the evidence; inasmuch as the evidence considered as a whole was insufficient to prove the requisite elements of the offence, including the element of intention, beyond reasonable doubt.
2.   The learned Trial Magistrate erred in that he:
a.   Accepted the evidence of the complainant as reliable in circumstances where the Complainant’s account was contradicted by other objective evidence in the case;
b.   Disregarded evidence, including objective evidence, which weighed against the Prosecution case without articulating any basis for rejecting that evidence;
c.   Made findings with respect to the CCTV footage that were not open on the evidence;
d.   Failed to refer to, or have any or adequate regard to, the Accused’s Record of Interview, as relevant to the question of intention;
e.   Mischaracterised the Prosecution witness Richard Naylon as being a witness called by Defence, and disregarded his evidence without articulating any proper basis for so finding; and
f.    Made findings with respect to staining depicted on the Complainant’s clothes which were not open in the absence of expert or forensic evidence on that issue.
Sentence
1.   The sentence of 6 months imposed for the offence of Aggravated Assault was, in the circumstances, manifestly excessive.
2. The learned sentencing Magistrate erred in not finding good reason to suspend the whole of the sentence pursuant to section 96(1) of the Sentencing Act, having regard inter alia to:
2.1.The circumstances of the offending;
2.2.The Appellant’s lack of history for violent offences or previously imposed terms of imprisonment;
2.3.The Appellant’s family responsibilities and prospects of rehabilitation.
The appellant’s submissions

The appellant’s submissions closely reflect the grounds of appeal. The appellant complains that the Magistrate failed to assess properly the reliability of the evidence of SC Daniels and also failed to weigh his account against other contradictory evidence. The appellant also contends that the Magistrate erred by failing to state his reasons for rejecting the contradictory evidence.
In particular, the appellant submits that the evidence of SC Daniels was contradicted by both the CCTV footage and the evidence given by Constables Allt and Welfare and Mr Naylon. Neither of the constables observed blood on the face of SC Daniels and nor did they see him squint, hyperventilate or display difficulty in breathing, even though they had attended the scene within seconds of the alleged spitting incident and prior to SC Daniels being able to wipe or wash his face. Neither of the constables heard the appellant make any further threats while he was restrained on the ground as has been alleged by SC Daniels.
Mr Naylon had stated that the appellant was bleeding and spitting in the back of the vehicle before and when SC Daniels opened the door. However, Mr Naylon had not seen any spit hit SC Daniels and nor had he heard the appellant say anything to him. The Magistrate did not explain the discrepancy between, on the one hand, the evidence of the two constables and Mr Naylon and, on the other hand, the evidence of SC Daniels.
The appellant further submits that the Magistrate erred by limiting his assessment of the evidence of SC Daniels to the question of veracity without considering whether the substantial inconsistencies were relevant to his reliability as a witness. Because the guilt of the appellant depended solely upon the acceptance of the evidence of SC Daniels, it was necessary to give detailed consideration to his reliability. The Magistrate failed to consider whether, in light of the substantial inconsistencies between the evidence of SC Daniels and the other evidence, he was honestly mistaken or unreliable for some other reason. In that respect the appellant notes that the Magistrate found that SC Daniels was mistaken in his evidence that the appellant had not been injured before being placed in the police vehicle. That error needed to be taken into account in assessing his overall credibility and reliability.
The appellant also complains that the comment by the Magistrate “I do not think the Senior Constable could have been mistaken” was inadequate because the Magistrate had failed to address contrary evidence. The words used by the Magistrate tend to suggest that his Honour required the appellant to convince him that SC Daniels was mistaken. That effectively reversed the onus of proof.
The appellant also submits that the findings of fact made by the Magistrate were not supported by the prosecution evidence as a whole and thereby provided an unsound basis upon which to accept the evidence of SC Daniels.
The appellant further contends that the CCTV footage not only failed to support the account given by SC Daniels but actually tended to indicate that the incident had not occurred in the manner that he alleged. There was nothing on the CCTV footage to show the appellant looking at SC Daniels, saying the words “have that you cunt” or spitting into his face within the time and movements captured by the footage. SC Daniels does not seem to show any reaction following the moment that he claims to have been spat upon.
The appellant complains that the Magistrate extrapolated from the CCTV footage in a way that was not supported by the evidence of SC Daniels or any other evidence. This amounts to a fundamental error in assessing the reliability of the account given by SC Daniels. The mere fact that SC Daniels was seen on the CCTV footage to remove the appellant from the vehicle does not support the conclusion that he had been spat upon. Furthermore, the Magistrate failed to consider that the action of SC Daniels in removing the appellant from the vehicle and taking him to the ground could be explained by a misapprehension on his part that he had been deliberately spat upon.
A further complaint by the appellant is that although the Magistrate referred to the content of his record of the interview in acquitting him of count 1, his Honour failed to refer to this evidence when he considered count 2. The Magistrate failed to consider the difficulties in inferring beyond reasonable doubt that the act of spitting was voluntary and intended to hit SC Daniels. The difficulties were that the appellant was sweating and bleeding profusely into his eyes, was handcuffed and unable to wipe the blood from his face, was affected by OC spray which could impair vision and lead to excess saliva and was seen to be indiscriminately clearing his mouth of blood and saliva immediately before and after the alleged assault.
The appellant submits that the Magistrate made several errors in relation to the evidence of Mr Naylon. The Magistrate had wrongly described Mr Naylon as a witness called by the defence. He was called by the prosecution and the defence did not cross-examine him. There was no evidence suggesting that the appellant was angry towards the police. Mr Naylon stated that the appellant was angry about the incident that led to his arrest. This did not support the conclusion that he intended to assault SC Daniels. The appellant also submits that the Magistrate had no basis to describe the evidence of Mr Naylon as equivocal. He unequivocally stated that the appellant had not spoken to SC Daniels in the manner suggested nor had he seen any spit land on him. The Magistrate did not refer to that evidence. The use by the Magistrate of the words “must have realised” in relation to the opening of the cage door was not supported by any evidence and suggested the onus lay with the appellant to prove that he did not realise that SC Daniels was behind the opening door. The mistaken reference to Mr Naylon as a defence witness affected the assessment of the prosecution case as a whole and the decision as to whether the evidence was sufficient to prove the charge beyond reasonable doubt.
The appellant further contends that the Magistrate erred by finding that the stains on SC Daniels’ shirt were consistent with the spraying of blood. His Honour failed to consider or exclude any other competing hypotheses, e.g. the blood was flicked onto the shirt while the appellant was being restrained.
In relation to the sentence appeal, the appellant submits that the order of six months imprisonment with two months to be served was manifestly excessive having regard to the circumstances of the incident and the personal circumstances of the appellant. The appellant also submits that the Magistrate erred in not finding good reason to suspend the whole of the sentence. There were significant mitigating features, being that the appellant had been violently assaulted and injured shortly before the incident, was forcibly arrested and detained on a charge for which he was ultimately acquitted and he was suffering the effects of both the head injury and the OC spray at the relevant time. Furthermore, he expressed remorse and contrition when interviewed shortly after the incident.
The appellant also submits that the Magistrate failed to have regard to his family responsibilities for his partner and son, his problems with alcohol and his prospects of rehabilitation. The Magistrate made no reference to the letter from the Umoona Tjutagku Health Service.
The respondent’s submissions
The respondent observes that the Magistrate undertook a principled and thorough examination. His Honour found that the prosecution had failed to prove an element of count 1 and also failed to disprove the defence of self‑defence. Furthermore, his Honour also found in relation to count 2 that the prosecution had failed to prove the harm that was an element of the charge under s 20(4) of the CLCA.
The crucial evidence given by SC Daniels was that the appellant spat blood which he felt go into his face, eyes and mouth and that action was accompanied by the words “have that you cunt”. This Court must respect the advantage of the Magistrate in seeing and hearing SC Daniels give evidence about those points. The respondent also submits that SC Daniels expressly rejected the suggestion that the blood could have been sprayed on him accidentally.
The respondent also contends that none of the evidence given by SC Daniels was contradicted by other objective evidence. At best, it might be said that the objective evidence did not support his account. However, the CCTV footage did not conflict with the evidence of SC Daniels. The respondent submits that the CCTV footage was, in fact, consistent with his evidence. The respondent also notes that the appellant did not deny in the record of interview that he had spat at SC Daniels. He stated that he did not recall spitting deliberately.
There was no challenge to Mr Naylon’s evidence that he had seen the appellant spit when the door was opened. Mr Naylon had not said that he did not hear the appellant say anything to SC Daniels. His evidence was that he could not remember. However, the Magistrate had rejected Mr Naylon’s observation that he thought the “cop accidentally walked in the way or something”. It was unclear whether Mr Naylon was suggesting that SC Daniels had in fact walked in the way when the appellant spat or whether he was giving an opinion about what might have happened. The rejection by the Magistrate of this observation was completely consistent with the positions of the appellant and SC Daniels as shown on the CCTV footage.
Although the Magistrate erred in describing Mr Naylon as a witness called by the defence, his evidence was not contested. The respondent submits that the mischaracterisation by the Magistrate was therefore immaterial. Because his evidence was not challenged, it was simply part of the total evidence to be assessed by the Magistrate in determining whether the elements of the offence had been proven beyond reasonable doubt.
Although the other police officers had not seen the appellant spit at SC Daniels nor had they heard him say the words said to accompany that action, the CCTV footage confirmed that they were elsewhere when the cage door was opened. The failure of the other officers to see blood on SC Daniels’ face was only relevant if the amount of blood was such as to be immediately visible. It was also possible that he had wiped off some of the blood while the appellant was on the floor. The failure to see SC Daniels squint or hyperventilate was also immaterial as he had not suggested that he had squinted and he said that he had hyperventilated “later on”.
The respondent also observes that there was no substance to the complaint by the appellant that the Magistrate failed to assess the reliability of the evidence given by SC Daniels.
The respondent also submits that the small dots of stain on the shirt of SC Daniels were consistent with something having been sprayed at him and also consistent with Mr Naylon’s evidence that the spittle produced by the appellant was like a spray. Thus, the Magistrate was entitled to find that the dot stains on the shirt of SC Daniels supported his evidence that he had been sprayed with blood. The Magistrate was also entitled to reject the suggestion that blood had sprayed onto SC Daniels when the appellant turned his head. The evidence of both SC Daniels and Mr Naylon was that the appellant was spitting.
The respondent also submits that the sentence of imprisonment for six months imposed by the Magistrate was appropriate, particularly in view of the fact that the appellant was only required to serve two months in custody. In determining the sentence the Magistrate had regard to all of the circumstances, the appellant’s history and his family responsibilities. The latter considerations led the Magistrate to partially suspend the sentence.
Consideration
This is an appeal by way of rehearing. The function of the Court when conducting an appeal by rehearing was clearly stated by Lander J in Tazroo v Police:[3]
Because it is a re-hearing and because it is an appeal from the Magistrates Court the Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the magistrate together with such other evidence as it might admit.
It is the duty of this Court to make up its own mind, after giving due weight to the magistrate’s advantage in seeing and hearing the witnesses, and of course after giving weight to any findings on credibility which depend largely or on part on demeanour.
[3] [2002] SASC 155 at [18]-[19].
The key point of the appellant’s submissions is that the account of the spitting incident given by SC Daniels is not consistent with the other evidence. I do not accept that contention. While much of the evidence given by SC Daniels was not directly supported by the other evidence, his evidence was not inconsistent with the CCTV footage and the oral evidence given by other witnesses.
It is correct that neither Constable Allt nor Constable Welfare saw the appellant spit at SC Daniels. However, that is explained by the fact that they were not in the sally port area at the time SC Daniels alleges he was spat upon by the appellant. They did not enter that area until after SC Daniels took the appellant to the ground. Although the two constables did not see blood on the face of SC Daniels, I accept the correctness of the respondent’s submission that this consideration would only be relevant if the amount of blood was of a quantity that would be immediately visible. I also note from the CCTV footage that by the time the two constables arrived on the scene some seconds had elapsed and the appellant and SC Daniels were struggling on the floor.
I also accept the correctness of the respondent’s submission that the failure of the two constables to see SC Daniels squint was not material as there was no suggestion by him that he had squinted. I take the same view of the appellant’s complaint that neither of the two constables had seen SC Daniels hyperventilate. His evidence of hyperventilation clearly referred to a time subsequent to the events in the sally port.
The appellant contends that the Magistrate erred in finding that the spots on the shirt of SC Daniels were blood in the absence of any forensic evidence. The photographs clearly depict several small spots of a dark red substance on the shirt. In view of the evidence that the appellant was bleeding from head wounds and the evidence of Mr Naylon that the appellant was spitting blood and saliva, combined with the evidence of SC Daniels that he was spat upon, I consider that the Magistrate did not err in finding beyond reasonable doubt that the substance on the shirt was the blood of the appellant. Forensic analysis was not necessary. In my view, the significant issue is not so much whether the substance was blood or not but whether it was deliberately or inadvertently deposited on the shirt and face of SC Daniels.
Mr Naylon unequivocally stated in his evidence that the appellant was spitting at the time the door of the cage was opened by SC Daniels. I consider that the Magistrate correctly described the evidence of Mr Naylon that the “cop accidentally walked in the way or something” as equivocal.
The submission by the appellant is that Mr Naylon had not heard the appellant say the words “have that you cunt” to SC Daniels. In fact, the evidence of Mr Naylon was that he could not remember. Thus, the evidence of Mr Naylon on this point was neutral.
I do not consider that the erroneous description by the Magistrate of Mr Naylon as a witness called by the defence might have affected the outcome of the trial. As the respondent has submitted, the evidence of Mr Naylon was not challenged in any way by counsel for the appellant at the trial. His unchallenged evidence was simply a matter that needed to be taken into account by the Magistrate when he determined whether he was satisfied that the charge had been proven beyond reasonable doubt.
The evidence of Mr Naylon that the appellant was displaying anger while confined in the cage was consistent with the evidence of SC Downs and SC Daniels that the appellant was yelling and swearing and in a highly agitated state. Mr Naylon’s evidence that the appellant was bleeding from head wounds and spitting was also consistent with the evidence of Constable Allt that the appellant was severely affected by the OC spray, and that substance causes increased salivation. Constable Allt also referred to the fact that the appellant was quite agitated. The evidence of Constable Welfare that the appellant was sweating and bleeding and affected by OC spray was also consistent with the other evidence.
As I have previously noted, the crucial question before the Magistrate was whether the appellant deliberately spat saliva and blood at SC Daniels, or whether any spitting in the direction of SC Daniels was inadvertent and simply a continuation of the appellant’s actions in spitting a spray of blood and saliva prior to the cage door being opened.
The appellant did not deny when interviewed by police that he had spat on SC Daniels. His response to police questions was that he could not remember doing so and, if it had occurred, it must have been an accident and he was sorry. As I have already observed, the response by the appellant to police questions effectively amounted to a denial that he had used the words “have that you cunt”.
The Magistrate founded his conclusion that the appellant had intentionally spat at SC Daniels on the finding that SC Daniels was a good witness and a witness of truth. The Magistrate accepted that the appellant had used the words “have that you cunt”. This Court must give due weight to the advantage of the Magistrate in seeing and hearing SC Daniels give evidence, including his response to cross‑examination. After hearing the evidence of SC Daniels the Magistrate reached the conclusion that he did not think SC Daniels could have been mistaken in his claim about the words used by the appellant. The Magistrate also took into account when assessing the evidence of SC Daniels that the appellant was intoxicated, heavily affected by OC spray and agitated and angry.
I do not consider that there is any substance to the complaint by the appellant that the Magistrate failed to assess the reliability of the evidence given by SC Daniels. His Honour specifically rejected the possibility that SC Daniels could have been mistaken about the words used by the appellant. After making that finding the Magistrate observed that “[h]is words of aggression at the time make his intent and knowledge self‑evident”.
The only issue that concerns me in relation to the finding of the Magistrate is his conclusion that the action of SC Daniels in removing the appellant from the cage and pulling him to the ground beyond the view of the CCTV was consistent with the complainant acting to protect himself from further assault. In my view that action could equally have been consistent with the inadvertent spitting of blood and saliva towards him by the appellant. In other words, the complainant may have decided to force the appellant downwards and out of the cage so as to avoid the risk of being again hit by spittle and blood. However, I do not consider that the failure of the Magistrate to recognise that such a possibility was reasonably open demonstrates error in the ultimate finding by the Magistrate.
The Magistrate’s acceptance of the evidence given by SC Daniels that the act of spitting was accompanied by the words of aggression, when combined with the fact that none of the other evidence was inconsistent with the complainant’s version of events, leads me to conclude that the Magistrate did not err.
For these reasons, I dismiss the appeal against conviction. I turn to the question of sentence.
Sentence

Counsel for the appellant has referred to a number of appeals against sentence decided by this Court where the appellant had been convicted of assault by spitting. Several of those cases provide useful guidance.
Sentences for spitting offences
The appellant in Mason v Police had pleaded guilty to one count of aggravated assault and three counts of basic assault.[4] Each of the charges arose out of an incident at a shopping centre. The victim of the aggravated assault had made a provocative remark to the appellant about her use of a disabled car park. The appellant spat at the victim and then pushed a chair at her. The chair did not make contact with the victim. While I infer that the spittle contacted the victim, the judgment does not provide any detail. The second victim was an employee at the shopping centre. He saw the appellant and others yelling at staff and asked them to leave. The appellant spat at the employee and spittle landed on his jumper. The victim of the third count was a security guard at the shopping centre. While he was attempting to restrain the appellant pending the arrival of police she head‑butted and kicked him. The victim of the fourth count was another employee who was assisting with the removal of the appellant and her group from the store. She spat in his face.
[4] [2012] SASC 22.
A Magistrate sentenced the appellant to four months imprisonment and declined to suspend the sentence. She appealed on the ground that the Magistrate had not considered if there was good reason to suspend the sentence. The appellant was an Aboriginal woman aged 41 years. She had 10 children and was expecting her 11^th. Two of her children were still in her care and several others were dependent upon her. She had been convicted on a number of occasions, including three prior offences of assault. The previous assaults had also occurred in shopping centres and involved members of the public or staff. She had not previously been imprisoned.
Kelly J noted in Mason that courts in recent years have taken a very serious view of offences involving spitting. It is a particularly degrading form of assault with a serious risk of transmitting disease. Thus, general and personal deterrence must be important factors in sentencing. Kelly J reviewed the recent authorities and noted that sentences for spitting and similar forms of assault vary greatly. The sentences range from two weeks imprisonment up to imprisonment for nine months. While there had been a trend for courts to impose immediate custodial sentences, in many instances there had been found to be good reason to suspend the sentence. The outcome depended upon the overall circumstances of the offence and, more particularly, the offender. Several of the authorities referred to by the appellant were included amongst the cases surveyed by Kelly J.
Kelly J held that the appellant had not demonstrated that the penalty was outside the available range of sentences for similar offending. Her Honour was mindful that the appellant had spat on three people and also head-butted an employee who was trying to restrain her. While some Magistrates may have exercised their discretion to suspend the sentence, given the appellant’s history the Magistrate had obviously decided that it was time to impose an immediate custodial sentence. Kelly J held there was no error and the appeal was dismissed.
The appellant in Fischetto v Police was sentenced to imprisonment for two weeks for an assault where he spat on the arm of a police officer.[5] He was intoxicated. While seated in a police car he had attempted to harm himself by head-butting the window. The officer intervened. At the time of the offence the appellant was subject to a suspended sentence bond entered after an earlier conviction for biting a police officer. David J rejected the contention that the two week sentence should have been suspended because the incident occurred whilst the appellant was intoxicated and agitated. His Honour stated that the act of spitting was not a form of assault which can be treated lightly. David J did not make any comment about the appropriateness of the sentence of two weeks imprisonment.
[5] [2011] SASC 24.
In Sumner v Police White J delivered a short ex tempore judgment in which his Honour set aside a sentence of two months immediate imprisonment on a conviction for two counts of property damage and one count of assault by spitting and ordered that the sentence be fully suspended.[6] His Honour did not state his reasons for concluding that the sentence should be suspended, apparently because the Crown conceded that suspension was appropriate.
[6] [2004] SASC 158.
The appellant in Heubler v Police had pleaded guilty to spitting in the face of his partner during an argument.[7] The Magistrate stated that the starting point in considering the sentence was imprisonment for six months. His Honour reduced that to three months imprisonment because of the guilty plea, the period spent in custody on remand and the restrictive bail conditions to which the appellant had been subject. The Magistrate suspended the sentence of imprisonment upon the appellant entering into a good behaviour bond for two years. The appellant had no prior convictions for offences involving domestic violence. However, Duggan J noted as part of the background to the offending that the victim had been convicted several months earlier of assaulting the appellant.
[7] [2010] SASC 42.
In an ex tempore judgment in Heubler Duggan J upheld the appeal and set aside the sentence of three months’ imprisonment. His Honour imposed a sentence of imprisonment for one month which was to be suspended upon entering a bond to be of good behaviour for 12 months. It appears that the appellant had spent some time in custody pending the determination of the appeal.
Duggan J held that it would be inappropriate not to impose a sentence of imprisonment having regard to the circumstances of the offence. An aggravating feature was the abhorrent experience of being spat upon in the face and the psychological effect of such conduct. It was an aggravated offence because the victim was the appellant’s domestic partner.
The appellant in Gaston v Police had pleaded guilty to property damage and resisting arrest and was found guilty at trial of assaulting a police officer by spitting.[8] While struggling with officers after his arrest the appellant had turned towards an officer and spat in his face. The saliva landed in the officer’s temple area. The appellant was sentenced to two months imprisonment for the spitting offence. His criminal antecedents were extensive. He had several convictions for assaulting or hindering police. He had previously been imprisoned for 12 months for unlawful wounding and suspended sentences had been imposed on two other occasions. The Magistrate observed that the usual punishment for assault by spitting was a short period of imprisonment.
[8] [2004] SASC 222.
On appeal in Gaston, Gray J noted that assaults against police officers are treated more seriously than ordinary assaults. The law provides police with extra protection so that they are able to perform their duty. The appellant was an Aboriginal man with limited education and a deprived background. A psychological report indicated a high probability of mild brain damage due to a past head injury. The appellant also had a significant history of drug and alcohol abuse. Despite these difficulties the appellant had taken very substantial steps towards his rehabilitation. He also had a history of responding well to supervision when on a bond. None of this information was before the Magistrate.
Gray J held that based on the partial information before the Magistrate the sentence was well within his sentencing discretion. However, in light of the further information provided on appeal about the appellant’s personal circumstances and significant prospects for rehabilitation, Gray J held that the sentence should be suspended upon entering into a bond.
Whether manifestly excessive
The appellant complains that the sentence of six months imprisonment, with two months to be served, was manifestly excessive having regard to the circumstances of the incident and the appellant’s personal circumstances.
Although Kelly J in Mason concluded that the Magistrate had not erred, her Honour did describe the sentence of four months’ imprisonment as “severe”.[9] In my view that case warranted a more substantial sentence than the present matter because there the offender had spat at three different complainants and also committed an aggravated assault. She also appears to have had a more significant history of offending.
[9] [2012] SASC 22 at [15].
In Gaston, and also in Sumner, sentences of two months’ imprisonment were imposed for assaults by spitting, which were then suspended.[10] Mr Gaston had a significant history of violent offences, including against police. In Heubler, the sentence of three months’ imprisonment for spitting in the face of a domestic partner was reduced on appeal to imprisonment for one month which was then suspended.[11]
[10] [2004] SASC 222 at [36]; [2004] SASC 158.
[11] [2010] SASC 42 at [9].
I regard assault by spitting, particularly in the face, as a reprehensible offence because of the disgusting nature of the action coupled with the real risk of transmitting disease. While the evidence did not establish that SC Daniels suffered harm, it is clear that he was greatly distressed about the possibility that he may have been infected by disease and was subject to medical testing for many months. Furthermore, I also accept that offences against police officers acting in the course of their duty must be viewed with particular disfavour.
Nevertheless, while the Magistrate recognised at [10] of his sentencing remarks that there were several mitigating factors and also at [11] that the appellant showed some remorse when interviewed soon after the incident, these considerations appear to have played no part in determining the head sentence other than to reduce it from eight months to six months imprisonment. In view of the sentences imposed in broadly comparable cases, combined with the appellant’s relatively limited antecedents and all the surrounding circumstances, I consider that the head sentence of six months’ imprisonment was outside the range of sentences that were reasonably available and thus manifestly excessive.
The sentence of imprisonment for six months with two months to serve should be set aside and a sentence of imprisonment for two months substituted.
Suspension
I turn to the question whether there was good reason for the sentence to be suspended.
I do not accept the appellant’s contention that the Magistrate failed to have regard to the letter from the Umoona Tjutagku Health Service. The Magistrate specifically referred to the steps that the appellant was taking to deal with his alcohol problem. This remark was obviously based upon the letter from the Health Service.
The Magistrate considered that the offence was so serious as to warrant only partial suspension. While his Honour made reference to the efforts of the appellant to overcome his alcohol problem, there were other considerations relevant to the question of suspension that were not mentioned. The appellant’s sound employment record and relatively limited criminal history suggest that his prospects for rehabilitation were good. Other matters relevant to his prospects for rehabilitation and hence the question of suspension were the dependence of the appellant’s partner upon him to transport her to her place of employment and his role as carer for their infant son while she worked.
In view of these several matters I consider that the Magistrate erred in not finding that there was good reason to suspend the sentence of imprisonment in its entirety under s 96(1) of the Sentencing Act 2017 (SA).
I take the opportunity to repeat the observation made by White J in Sumner v Police that “[a] suspended sentence is a very real form of punishment.”[12] Because a term of the suspension will be that the appellant enter a bond, he will be liable to be sentenced further should he breach the bond.
[12] [2004] SASC 158.
Conclusion
I dismiss the appeal against conviction. I uphold the appeal against sentence. I will re-sentence the appellant to imprisonment for two months and order that the sentence be suspended upon the appellant entering into a bond to be of good behaviour for two years. The bond will be in the sum of $100. In view of the steps that the appellant is taking to deal with his alcohol consumption, I do not order any supervision.