Plunkett v Police No. Scgrg-97-1449 Judgment No. S6493

[1997] SASC 6493

PLUNKETT  v  POLICE

Perry J  (ex tempore)

The appellant appeals against the sentence imposed upon him following his plea of guilty in the Youth Court sitting at Adelaide to a charge that on the 11 September 1997 at Mount Gambier he assaulted a young man of or above the age of 12 years, thereby causing him actual bodily harm contrary to s40 of the Criminal Law Consolidation Act 1935.

At the time of the offence the appellant was aged 17 years and 7 months.  He was ordered to serve 12 months detention, and it is from that order that the appeal is brought.

In the notice of appeal, the appellant raises two grounds:

“1..... That the penalty imposed by the learned special magistrate was manifestly excessive.

2...... That the learned special Magistrate erred in not exercising his discretion to suspend the period of detention imposed.”

It appears from the facts as they were narrated to the learned sentencing Magistrate that the victim, a man aged 23 years, was walking with friends at about 11.00 pm on the night in question in Commercial Street West, Mount Gambier.  The appellant drove by in a motor car in which he was a passenger.  As he passed, the victim's girlfriend yelled out something to the passing vehicle, which promptly executed a U-turn and stopped beside the victim and his group of friends.  According to the facts as put by the prosecutor in the court below, the appellant walked towards the group and began abusing the victim's girlfriend, whereupon the victim pushed the appellant in the chest to get him away.  The appellant then punched the victim in the chest with a clenched fist, and a fight developed.  Blows were exchanged, the two of them wrestled on the ground until other members of the victim's group broke it up.  The appellant then left, got into the car and drove off.

It appears from an affidavit filed by Mr Alcock, the solicitor who represented the appellant in the court below, that in fact the appellant drove to the house of a friend about a kilometre away and asked the friend to assist him in returning to “deal” with the victim and his group.  On the friend's refusal, the appellant took up a cricket bat lying in the front yard of the friend's premises and returned to the Commercial Hotel, where the victim and his friends had been drinking at the time of the earlier altercation.

He had waited about 20 to 30 seconds in his car when the group came out of the hotel, whereupon he emerged with the cricket bat in his hand and set upon the victim.

According to the facts in the affidavit filed by the prosecutor, the appellant held the cricket bat in both hands and swung it at the victim, hitting him in the thigh, the hips and the arms five or six times.  The last blow was sufficient to break the bat on the victim's hip.

The appellant then ran off down Commercial Street.  The victim was taken to Mount Gambier Hospital where it was confirmed that his wrist was broken.

The police attended on the appellant who refused to be interviewed and refused to answer questions.

In Mr Alcock's affidavit he refers only to two blows, but he does not join issue with the assertion in the affidavit of the prosecutor that the cricket bat was broken, and he does not join issue with the prosecutor's assertion as to the extent of the injury suffered by the victim.

The learned sentencing Magistrate had before him a victim impact statement in which the victim confirmed that his wrist was broken, and that there was bruising to the upper right arm and the left side of the hip.  In that statement, the victim said that he lived in fear for his life and that of his girlfriend, not knowing what to expect from the appellant and the appellant's friends.  He said also, not surprisingly, that the injuries caused him a lot of pain and he found it difficult to sleep.

There was also placed before the learned sentencing Magistrate a report furnished by the senior consultant psychiatrist attached to the forensic psychiatry unit of the Women's and Children's Hospital and, separately, a social background report prepared by an officer of the Department for Family and Community Services.

This material served to confirm that the appellant had worked until about 12 months before the incident in question at a wrecking yard owned by his parents.  It is also asserted that they ran an escort agency and that his father was currently in gaol serving a term of imprisonment for offences relating to that business.  The appellant maintains that the association with that business on the part of his parents exposed him to abuse and criticism and, furthermore, he alleged that he was subjected to a degree of police harassment.

At the time he ceased employment in the wrecking yard, he left home.  Following that, he was prone to drink to excess as well as to abuse drugs. The conclusion expressed by the psychiatrist is that the appellant did not suffer from any overt psychiatric disease, but that he had a long history of learning difficulties, behavioural problems and offending.

The social worker responsible for the preparation of the social background report gives a comprehensive account of the appellant's background, dwelling on problems experienced by him arising, so it is alleged, as a result of a poor role model cast by his parents, and also due to his uncertain existence and lifestyle described as “house hopping”, from one set of friends to the next since he had left home.

Certainly the appellant’s record of past offending appears to coincide with the period following his departure from the family home, in that the offender history report which was before the learned sentencing Magistrate details a number of appearances in the Mount Gambier Children's Court commencing in January 1997.

The charges which brought him into court included a number of traffic offences. More significantly, he was before the court in May 1997 on a charge of assault occasioning actual bodily harm. On that charge he was ordered to perform community service. As I have been informed by Ms Fuller, who appeared for the appellant on the hearing of the appeal, an “obligation”, as it is called, was imposed upon the appellant pursuant to s26 of the Young Offenders Act 1993, that obligation being to be of good behaviour for a period which I have been given to understand was twelve months. Significantly, that “obligation”, as it is called, was imposed upon the appellant on 9 September 1997, two days before the offence now in question was committed.

It is unquestionably a circumstance of aggravation of the present offending that he should have committed the assault in question so soon after being released on the obligation. The breach of the obligation is itself an offence (see s26(4) of the Young Offenders Act) but there is no indication at this stage that the appellant has yet been charged with that offence.  I assume that he will be so charged, but that is not a matter which can have any bearing on the outcome of the appeal.  For that matter, neither is it a matter bearing upon the discretion exercised by the learned sentencing Magistrate.

The latter delivered ex tempore remarks as to penalty, from which it is clear that he had carefully considered all of the material which was before him, and the submissions made by counsel who appeared on the appellant's behalf.

The learned sentencing Magistrate obviously took a serious view of the offence.

During the course of his remarks, he observed that the defendant had spent time in custody without the benefit of remission.  This referred to the fact that the appellant had been in custody since 12 September 1997, the sentencing remarks having been made on 2 October.  So that clearly the learned sentencing Magistrate took into account the period already spent in custody.

He went on to say:

“The defendant has pleaded guilty.  As I hear his counsel, he has freely and frankly admitted his wrongdoing. He has recognised the error of his ways.  He is really asking for the Court to be merciful and, indeed, I will be, but I do not consider I can impose a penalty less than 12 months detention which I regard as an irreducible minimum.”

Ms Fuller, who appeared for the appellant, seized on the words “irreducible minimum”, and suggested that they were indicative of error on the part of the learned sentencing Magistrate.

In my opinion, that is not so.  I would take those words to mean no more and no less than that, as the learned sentencing Magistrate saw it, twelve months detention was the least which he felt able to impose consistently with his obligations under the Young Offenders Act.  As a Magistrate sitting in or constituting the Youth Court, which is a specialist jurisdiction, he must be taken to have been well aware of the provisions of s23(4) of the Act which provides:

“A sentence of detention must not be imposed for an offence unless the court is satisfied that because of the gravity or circumstances of the offence, or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.”

Other provisions of the Youth Offenders Act are  relevant to the sentencing process, and serve to  distinguish the position of young offenders who come before  the Youth Court from that of adults dealt with in  other courts.

Ms Fuller has drawn my attention to s3 of the Young Offenders Act, sub-s(3) of which sets out what are  described in the subsection as the statutory policies to which effect must be given “so far as the circumstances of  the individual case allow”.  Those statutory policies include recognition of the family relationships between the youth and other members of the youth's family, and provide that “A youth should not be withdrawn unnecessarily from the youth's family environment”.

While one might look with a degree of circumspection upon the benefit to be gained by this young man from his family environment, there is no question but that the policy of the Act, and in particular the provisions of s3, should be recognised and applied appropriately in every case. Indeed, the learned sentencing Magistrate was informed that although the appellant had absented himself from the family home, he was prepared to return to his mother who was prepared to take him back in the home which she shared with his four sisters.

Ms Fuller also referred to another remark made by the learned sentencing Magistrate when he said, “I must make it crystal clear that I'm dealing with the defendant and not his family”.  She submitted that that remark suggested that the learned sentencing Magistrate had strayed from the path defined in s23(3), and in particular the provisions in that subsection to which I have referred.

In my opinion, however, Mr Wells for the respondent was right when he characterised that remark as simply being indicative of the fact that the learned sentencing Magistrate was making it clear that he was not sentencing the appellant for any perceived misdeeds of the family.

A number of matters were put by way of mitigation on behalf of the appellant by his counsel in the court below, and repeated and emphasised by Ms Fuller in her most helpful submissions on the hearing of the appeal.  She suggested that during the albeit short time during which the obligation had been current, the appellant had complied with it, and indeed, had performed community service.  The appellant had also taken  other steps, as she put it, to rehabilitate himself.

The fact remains, however, that the principal obligation to which he was subjected, namely, to be of good behaviour, was an obligation which did not survive for long before he had breached it in a violent way.  The fact that following the first altercation between the appellant and the victim, the appellant went off for a time, albeit a short time, and then returned to wait for the victim, indicates a degree of premeditation which militates against any submission that the circumstances of the offence were other than most serious. Mr Wells for the respondent emphasised the seriousness of the offence, and submitted that, bearing that in mind, the sentence under review was justifiable, although, no doubt on any view of the matter, a heavy sentence.

But I must say that I have experienced some concern as to whether or not at the end of the day it can be said that the learned sentencing Magistrate erred in imposing the sentence which he did. On the one hand, in my opinion, it would not seriously be suggested that he erred in imposing a custodial term, and I reject the ground of appeal and the submissions made in support of it that he erred in failing to exercise his discretion under s38 of the Criminal Law (Sentencing) Act 1988 to suspend the sentence.

The fact that the offence constituted a breach of the obligation to be of good behaviour militates against the view that any custodial term should have been suspended; but 12 months is a long period in which to confine a young man this age, even allowing for the seriousness of the offence.

While it is true that this Court does interfere simply because it might take a different view of the sentence, and it is not appropriate to intervene by way of appeal unless the sentence under review is demonstrably and manifestly excessive, not without some hesitation I have reached the view that twelve months is not only too long, but so much more substantial than might otherwise be thought to be appropriate as properly to be characterised to be manifestly excessive.

The justice of the case can best be met by an order allowing the appeal and reducing the term of the detention to six months in lieu of twelve months, to date from the same date, that is to say, 2 October 1997.

I allow the appeal and make an order in those terms.

[FOLLOWING DISCUSSION WITH COUNSEL AS TO COSTS]

HIS HONOUR:          The respondent will pay the appellant's  costs which I fix at $150.