Police v Carter No. Scciv-01-1630

POLICE v CARTER
[2002] SASC 48
Magistrates Appeal
Nyland J

This is a Crown appeal against sentence. The respondent, an aboriginal woman, was charged on complaint that on 13 July 2001, at Tailem Bend she assaulted Ian Paul, a member of the police force in execution of his duty contrary to s 6(1) of the Summary Offences Act 1953.
The respondent appeared before the Magistrates (Special Interest Aboriginal) Court (“the Nunga Court”) at Murray Bridge on 7 November 2001. She was represented by counsel and pleaded guilty to the charge against her.
The respondent also admitted breaching a bond imposed on her on 5 March 2001 in the Magistrates Court at Adelaide. On that occasion, on charges of receiving and false pretences, failing to comply with a bail agreement and damaging property, the respondent was convicted and sentenced to eight months imprisonment. That sentence was suspended upon the respondent entering into a bond in the sum of $1,000 to be of good behaviour for a period of two years, on condition that she be under the supervision of a probation officer. The respondent failed to comply with the conditions of the bond by committing the present offence, as well as failing to comply with the lawful directions of the probation officer assigned to her.
The circumstances relating to the charge against the respondent of assaulting a police officer are contained in the affidavit of Phillip Capper, police prosecutor, sworn on 17 December 2001. In paragraph 3 of that affidavit, he said that although he could not recall exactly what he said, he believed he would have said the following:
“Your Honour, the victim is a police officer who states that at 5.05 p.m.on 13 July 2001 while on uniform patrol with Sergeant Gigger he was travelling east along North Terrace Tailem Bend when they saw the defendant on the southern side of the footpath in the company with Valitta Aspel. Police then saw the defendant move in behind the Anglican Church wall as if to hide. Police stopped to speak with both the defendant and Aspel when the defendant ran across the church grounds. The victim gave chase, cornering the defendant at the southern fence line of the church grounds and walked with the defendant to North Terrace. As a result of information received this witness informed the defendant that she had a warrant issued for her arrest. The defendant then began to run off along North Terrace until apprehended by the victim. The victim walked with the defendant back towards the police vehicle when the defendant stopped walking and went to fall to the ground. The victim held the defendant by the left arm and was then assisted by Gigger who held the defendant’s right arm and conveyed her toe the cage rear door. The defendant began to struggle as she was being pushed into the rear of the cage area by placing her hands up against the door and feet on the footstep. The victim dislodged the defendant’s feet and placed his left arm around the defendant’s mid section securing the defendant’s left arm to place the defendant inside the cage area. The defendant then curled up, bending her face forward and then bit the victim on the left wrist. The victim then yelled ‘ow, she bit me’ and pulled his arm back. The defendant continued to struggle and once placed inside the cage area the defendant continually flung her feet out to door, preventing the door from being closed. The victim leaned in trying to push the defendant’s feet back to the rear area of the cage when the defendant again attempted to bite the victim on the upper right arm. The victim pushed the defendant’s head back and forcing eye contact stated ‘Sharon, you bite me again and I’ll hit you hard’. With that the defendant said ‘Sorry I didn’t mean I’ and placed both her arms around this victim’s right upper arm. The defendant continued to struggle though by continually placing her feet outside the cage door and on one attempt to close the door her legs were squashed between the door and vehicle and the door was immediately opened causing no injury or cause of complaint by the defendant. The victim then decided to place himself inside the cage area with the defendant placing his body between the door and the defendant and Gigger then shut the cage door. The defendant managed to get her left hand free from the victim as the door was being shut and her finger tips were jammed in the door.
The defendant was conveyed to Murray Bridge Police Station where she was charged and processed and medical treatment was given. The victim was dropped off at the Tailem Bend Medical Clinic for treatment by Dr Entwistle for a small open wound, abrasions and a red rash on his left inner wrist. Blood samples were taken and are awaiting results re communicable disease contamination as the defendant was/is a Hepatitis C carrier. The victim states the bite hurt when applied and was sore and then became itchy for a few hours after the initial bite and remains red.
The defendant stated to the victim she was sorry and that she didn’t mean it.”
The police prosecutor also provided the magistrate with the respondent’s antecedent report. That disclosed a long history of offending which included several prior convictions for offences of violence as well as a previous conviction for assaulting police which had been committed on 26 September 1995.
In the course of submissions on behalf of the respondent, her counsel referred to the fact that she was currently serving a nine month term of imprisonment which had commenced on 16 July 2001. That sentence apparently related to a charge of assault occasioning actual bodily harm and a breach of a District Court bond. Her counsel also provided the magistrate with details of the respondent’s personal circumstances. In addition, the court had the benefit of a pre-sentence report prepared with respect to the respondent. It is unnecessary to repeat all of the matters contained therein, but it is fair to comment that the background history referred to therein was appropriately described by the author as “tragic”. He described the respondent as a “victim of childhood neglect and deprivation. There was no continuity of care and as a child (she) was moved from placement to placement”.
The learned magistrate had regard to all of the submissions put to him and in the course of sentencing the respondent said:
“You are right at the bottom now, in gaol. There is a way up which you are trying to follow, I accept that. If you don’t then everything will be ruined for you and your kids – I am glad you have done something about your drug problem.
I have heard everything that has been said. I have sympathy for the police officer who was hurt because he didn’t deserve that. He was doing his job, that is what he is paid to do by the community. I have to think also about you and what has happened to you in your life and that is very sad. That doesn’t happen to most people so it has been very sad for you and I think the fact that you are doing something about it now shows you have inner strength which should be encouraged. It is not easy for ordinary people who have had happy, loving families to understand what it is like for someone who hasn’t. However, you are older now and it is time for you to give a happy family life to your kids, to do something for your kids that you didn’t have. You don’t want them to suffer as you did as a child.
You were given 9 months imprisonment stating from 16 July this year so you have about 5 months to serve and it seems that that imprisonment has given you time to think about yourself and it is probably working for you. I would rather you get out when you thought you were going to. I don’t want you to look backwards but instead forward so I won’t interfere with that sentence. Given your record in the past there has to be an order of imprisonment but it will not extend past what you are already serving.”
The learned magistrate then convicted the respondent with respect to the charge of assaulting the police officer and sentenced her to be imprisoned for a period of three months commencing forthwith. He found the breach of bond proved. He revoked the order for suspension of sentence but reduced the period of imprisonment to a term to be served of three months. He directed that that sentence also commence forthwith. The effect of those orders was that each of these sentences would be served concurrently with the sentence of nine months currently being served by the respondent which had about five months remaining on it.
The appellant in its Notice of Appeal claims:
“1.The Learned Magistrate erred in ordering the sentence of imprisonment for the charge of assault police be served concurrently with the sentence imposed in respect to the breach of bond matter.
2.The Learned Magistrate erred in ordering that the sentences of imprisonment imposed on 7 November 2001 be served concurrently with the sentence of imprisonment the respondent was already serving.
3.The sentence imposed by the Learned Magistrate was manifestly inadequate.”
Mr Grant, who appeared as counsel for the appellant on the hearing of the appeal submitted that the sentence of three months imprisonment imposed by the magistrate with respect to the assault charge was manifestly inadequate considering the circumstances of the offence. Furthermore, he argued that the order for that sentence to be served concurrently with the sentence to be served upon the revocation of the previously suspended sentence was not within the permissible limits of the magistrate’s sentencing discretion. The problem was further compounded by the order that each of those sentences in turn be served concurrently with the sentence of nine months imprisonment currently being served. Mr Grant did not, however, take issue with the order made by the learned magistrate reducing the suspended sentence from a period of eight months to three months, although there did not appear to be any special circumstances to justify such a reduction.
The circumstances which related to the offence of assaulting a police officer were clearly serious. The fact that the respondent was a hepatitis C sufferer was an aggravating aspect of her conduct and the Victim Impact Statement indicates that was a factor which caused emotional distress to the victim in addition to his physical injury. This offence was also committed against a long history of prior offences of violence. The respondent is not to be punished again for past offences but the fact of her prior record reduced the scope for leniency. The penalty imposed for this offence would therefore appear to be lower than appropriate. It is well established, however, that Crown appeals on sentence should be sparing and further, that on a review of a sentence imposed, the test is not whether the court carrying out the review would have imposed a different sentence, but rather whether the sentence imposed is outside of permissible limits of sentencing discretion: R v Osenkowski (1982) 30 SASR 212 and House v R (1936) 55 CLR 499.
Before reaching a conclusion as to whether the court should interfere in this case, it is necessary to have regard to the other grounds of appeal which complain of the order for the respective sentences to be served concurrently. In The Queen v Kain (1985) 38 SASR 309, the Crown appealed against an order for concurrent sentences imposed in the District Court for the crimes of housebreaking, entering and larceny. The Full Court considered whether the sentences for the later offences should have been made cumulative upon the sentences of imprisonment for the earlier offences. King CJ said (at 311):
“It would be wrong for a sentencing judge to do other, in circumstances such as the present, than to make the sentence for the subsequent crime cumulative upon the earlier sentence which is activated as a result of the commission of that crime. Similarly, when a person is on bail with respect to a charge and he makes use of that bail for the purpose of committing further crime, he must expect that the punishment for that further crime will be cumulative upon the punishment for the crime with which he has previously been charged.”
In this case there was no relationship between the offences which were the subject of the suspended period of imprisonment and the breaching offence. There do not appear to be any particular facts to justify a departure from the general rule that a sentence for a subsequent crime should be cumulative upon a sentence for a breached bond. The maximum penalty provided by s 6(1) of the Summary Offences Act 1953 for the assault of a police officer attracts a maximum penalty of a $10,000 fine or imprisonment for a period of two years. The courts have consistently held that any offence involving an assault against a police officer must be taken seriously: Barry v Samuels (1975) 10 SASR 376; Satham v Huffa (1975) 13 SASR 205; Wojtasik v Kvietsitis (1989) 153 LSJS 487; Beattie v Betts (SCSA), Debelle J, 17 June 1991 Jud No 2907 (unreported).
Despite the seriousness of the assault charge, however, the order made by the magistrate for concurrent sentences effectively meant that the respondent received no further penalty for that offence, nor any punishment for the offences which were the subject of the suspended sentence.
Notwithstanding those matters, Mr Vadasz, who appeared for the respondent on the hearing of the appeal argued that the court should not interfere with the sentence imposed by the learned magistrate. He submitted that the fact that the sentence had been imposed by a magistrate sitting in the Nunga Court was a significant matter to be taken into account as part of the review of the sentence.
In considering this appeal, I bear in mind that the Nunga Court was established to allow for a more creative approach to be taken in sentencing with specific regard to aboriginal defendants. I recognise that the court has been successful in providing a more sensitive environment for aboriginal defendants within the criminal justice system. The approach clearly must be encouraged and supported. The Nunga Court does not, however, have a specific legislative framework. Essentially it is a Magistrates Court operating in an informal way, depending largely upon the co-operation of the police and the defence to work effectively. Despite the court’s unique procedures, it remains subject to the usual sentencing principles. In this case, once the magistrate reached the conclusion that it was necessary to impose a period of imprisonment upon the respondent, he was obliged to operate within the permissible limits of the sentencing discretion.
In this case, a sentence of only three months imprisonment was imposed for the offence of assaulting police. To make that sentence concurrent with the sentence for the bond breach and the sentence then being served, resulted in a sentence which was manifestly inadequate in all of the circumstances.
The sentencing discretion has therefore miscarried and it is open to this court to sentence afresh. Notwithstanding that matter, in considering the appropriate sentence, I have had regard to the fact that the sentence was imposed by an experienced magistrate working in a specialised jurisdiction. It is clear from his sentencing remarks that the learned magistrate was anxious to structure a sentence which would promote the rehabilitation of the respondent. As he said to the respondent:
“Ms Carter, you have been a highly disadvantaged person in the past and today you have been given a chance to show the community that you can improve your life. You will be unlikely to get that chance again.”
The appeal will be allowed. Taking into account all of the circumstances, I do not propose to interfere with the sentence of three months imprisonment imposed for the offence of assaulting a police officer. However, in order to achieve a result which will more appropriately reflect the seriousness of the offending and the deterrent aspect of punishment, I set aside the order made by the learned magistrate that the sentence for the assault be served concurrently with the sentence to be served as a result of the breach of the bond. The sentence for the assault will therefore be cumulative upon the reduced sentence of three months with respect to the breach of the bond. The sentence for the breach of bond will be cumulative upon the sentence currently being served by the respondent. That makes a total head sentence of 15 months imprisonment. In view of the length of that sentence I am obliged to fix a non-parole period. There were significant matters arising out of the background of the respondent which supported the view taken by the magistrate that a merciful approach to the balance of time to be served by the respondent in prison before her release might foster her future rehabilitation. Consistent with that approach, I fix a non-parole period of nine months to commence from 16 July 2001.

[2002] SASC 48

20 February 2002