Osborne v Police No. Scciv-03-756

OSBORNE v POLICE
[2003] SASC 243

PERRY J. (ex tempore) The appellant appeals against the sentence imposed on him in the Magistrates Court at Elizabeth following his plea of guilty to multiple offences.
On one complaint, he was charged with having been, on 16 February 2003, unlawfully on premises at Gawler, contrary to s17 of the Summary Offences Act 1953.
On a separate complaint the appellant pleaded guilty to having on the same day, that is, 16 February 2003, assaulted a member of the police force in the execution of his duty contrary to s 6(1) of the Summary Offences Act, and on the same date resisting a member of the police force in the execution of his duty contrary to s 6(2) of the same Act.
The third count to which he pleaded guilty on that complaint was having on the same date, without reasonable excuse, contravened or failed to comply with a condition of a bail agreement contrary to s 17 of the Bail Act 1985.
The appellant pleaded guilty to two other complaints.
One alleged that on 23 December 2002 he stole a mobile phone contrary to s 131 of the Criminal Law Consolidation Act 1935. The other was that on 28 February 2003 he unlawfully damaged property contrary to s 85(3) of the Act.
On the count of being unlawfully on premises on 16 February 2003, the sentencing magistrate imposed a term of imprisonment of 6 months, backdated to the date of the offence, that is, to 16 February 2003.
The sentencing magistrate stated that the penalty of 6 months was to take into account the other offences committed on 16 February 2003.
In relation to all of the other counts the magistrate convicted the appellant without further penalty.
I have the benefit of an affidavit furnished by the police prosecutor who appeared in the court below. The affidavit contains a summary of the circumstances surrounding each offence. I will briefly summarise those circumstances.
As to the complaint of being unlawfully on premises on the day in question, police attended at a residential address in a street at Gawler West shortly after midday and found the appellant on the front lawn of the house. He was covered in blood and moving towards the front door.
Police told him to stop, but after taking a few steps, he picked up a bicycle from the rear of a car parked in the driveway and began running toward the police officer, holding it above his head. He chased the police officer, who was backing off, onto the roadway and threw the bike at him with full force. The bicycle hit the police officer in the chest and shoulder.
Two police officers then restrained the appellant, producing but not using a capsicum spray, and he was handcuffed.
As they waited for an ambulance to attend the appellant spat at one of the police officers hitting him on the trouser leg. Shortly afterwards the appellant again spat at the police officer.
Later, at the Gawler Health Service, after being treated for his wounds, the appellant tried to run out of the hospital, but was restrained by a police officer. He pushed the police officer away, causing him to suffer a cut to the left forearm which measured two centimetres.
After escaping from the hospital building the appellant was captured shortly afterwards.
As to the theft of the mobile phone, that occurred at 8.00 pm on a Monday night. The victim was sitting in front of a hotel in Gawler when the appellant approached him and spoke to him. The appellant then went off to get a beer and returned to the table at which the victim was sitting. The victim got up to go to the toilet and on his return he found that his mobile phone, which he had left on the table, was missing and the appellant had disappeared.
As to the offence of damaging property on 28 February 2003, this occurred whilst the appellant was at the Elizabeth Magistrates Court. While being escorted by security officers, he kicked a wall-mounted phone off the wall causing it to be damaged. The repairs cost $90 odd.
Mr Dibden appeared for the appellant both in the court below and on the hearing of the appeal. I have had the benefit of an affidavit from him as well as his submissions.
It appears that with respect to the charge of being unlawfully on premises the complainant was the appellant’s partner, Ms Williams, on whose premises he was found on the day in question. After the proceedings were instituted, she indicated to the prosecution that she did not wish to proceed with any charge and did not wish to give evidence against the appellant.
I am told that they had had a relationship lasting over a period of about a year, although it is obvious that it must have been a somewhat unsettled existence.
It appears further that, as Mr Dibden told Ms McGrath, the prosecutor with whom he was dealing before the matter was called on , Ms Williams wanted to resume a relationship with the appellant but wanted him to have some counselling as part of any penalty which might be imposed, particularly with respect to issues involving domestic violence, aggression and drug use.
Ms McGrath, having discussed those matters with Mr Dibden, was not present in court when the matter came on for hearing and another prosecutor dealt with the matter.
One of the arguments offered by Mr Dibden on appeal is that, if Ms McGrath had been present, having regard to his discussion with her, he might have expected some support from her for a non-custodial sentence, with appropriate conditions as to treatment.
After the magistrate had imposed sentence, Mr Dibden submitted further that the penalty made no provision for the rehabilitation that had been sought, as he put it, jointly by both defence and the prosecutor. The magistrate indicated that he was aware of that, but that the sentence imposed would stand.
In the sentencing remarks the magistrate described the appellant as having an “appalling” record of dishonesty and violence, and some of that violence had been directed towards the police.
It does appear that the appellant, who is aged 29 years, has a long record of prior convictions involving assaults and other crimes of violence, theft, dishonesty, drug-related offences and motor vehicle offences stretching back to 1989. He has previously served many gaol terms and he has previously completed periods of release on parole. He had been released on parole some five months before the offending which occurred in February 2003.
I have been told this morning on the hearing of the appeal that the appellant has served much of the sentence which was imposed. Indeed, he was released on bail on 9 July with only about six weeks of the sentence still to run.
Ms Williams was present in court on the hearing of the appeal and intimated to me that she wished to resume living with the appellant and thought that they could make a go of it.
This is an unusual case in which I think, on the one hand, the sentence of 6 months imprisonment was fully warranted by the circumstances of the offending, given the appellant’s poor record and the fact that it was multiple offending.
On the other hand, I think that because of the course of the proceedings in the court below and the order imposed by the magistrate, there is a chance that the appellant has been deprived of what might be his last opportunity to be rehabilitated.
Not without some hesitation I feel that it is proper to allow the appeal, and to accede to a suggestion made by Mr Dibden, namely that the 6 months sentence stand, but that that part of it which post-dated 9 July 2003 be suspended on the entry into a bond by the appellant.
I order that the appeal be allowed, that the sentence of 6 months imprisonment stand but that that part of it which post-dates 9 July 2003 be suspended upon entry by the appellant into a bond in the sum of $500 for a period of 12 calendar months, during the whole of which time the appellant is to be under the supervision of a probation officer and comply with any directions of the probation officer with respect to counselling, anger management, domestic violence and drug abuse.
[AFTER THE APPELLANT HAD INTIMATED THAT HE WAS WILLING TO ENTER INTO A BOND IN THOSE TERMS, BUT BEFORE HE HAD DONE SO, THE MATTER WAS CALLED ON AGAIN.]
My attention has been drawn to the fact that the proposed order contravenes s 38(2b) of the Criminal Law (Sentencing) Act 1988, in that the term of the bond would extend beyond the period of the suspended imprisonment.
I recall that order and substitute an order in the following terms, which will have the same practical effect:
1.That the appeal be allowed.
2.That the sentence under appeal be quashed.
3.That in lieu thereof there be substituted a sentence of 5 weeks imprisonment commencing today.
4.That the sentence of imprisonment be suspended upon the entry by the appellant into a good behaviour bond in the sum of $500 for a period of 12 months, during the whole of which time the appellant is to be under the supervision of approbation officer and comply with any directions of the probation officer as outlined above.

[2003] SASC 243

4 August 2003