Police v Dolan - [2010] SASC 341

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v DOLAN
[2010] SASC 341
Reasons for Decision of The Honourable Justice Gray
9 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
Police appeal against sentence - defendant pleaded guilty before a Magistrate to the offences of common assault, trespass and breach of bail - convicted on each count and sentenced pursuant to section 18A of Criminal Law (Sentencing) Act 1988 (SA), being released without further penalty on entry into a good behaviour bond for 18 months - Police on appeal complained that the circumstances of the offence of assault were so serious as to warrant a term of imprisonment - where assault committed in circumstances of domestic violence against a young pregnant woman - whether Magistrate proceeded on an error of sentencing principle - whether sentence manifestly inadequate.
Held: Appeal allowed - the Magistrate failed to have sufficient regard to the fact that the conduct the subject of the assault charge was an act of domestic violence to a young pregnant woman - the penalty imposed by the Magistrate was manifestly inadequate - on resentencing, defendant sentenced to a term of imprisonment of four months, suspended on the defendant entering into a bond for a term of three years to be supervised for a period of 18 months.
Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 38; Criminal Law Consolidation Act 1935 (SA) s 20; Summary Offences Act 1953 (SA) s 17, referred to.
R v Wilkinson (2008) 101 SASR 21; R v Banens (Unreported, Supreme Court of South Australia, King CJ, 18 November 1987); R v Lennon (2003) 86 SASR 295; Malvaso v The Queen (1989) 168 CLR 227; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Cowe [2010] SASCFC 46; R v Ironside (2009) 104 SASR 54, considered.

POLICE v DOLAN
[2010] SASC 341
Magistrates Appeal
GRAY J.

This is a police appeal against sentence.
On 7 September 2010, Gary Alan Dolan pleaded guilty before a Magistrate to the offences of common assault,[1] trespass[2] and breach of bail.[3] He was a first offender. He was convicted on each count and sentenced to the one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). He was released on his entry into an 18 month supervised good behaviour bond requiring him to appear before the Court for sentence if he breached a condition of that bond. It was a further condition of the bond that he obey the lawful directions of his supervising Correctional Services Officer, in particular with respect to attending programs in relation to mental health, anger management and domestic violence.
[1] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to section 17 of the Summary Offences Act 1953 (SA).
[3] Contrary to section 17 of the Bail Act 1985 (SA).
On the hearing of the appeal it was complained that the offence of assault was so serious that a term of imprisonment should have been imposed. It was accepted that it was open for the Court to suspend such a term, should it be ordered.
When the appeal came on for hearing on 18 November 2010, I allowed the appeal against sentence on the basis that an error of principle had been identified and that in any event, the sentence imposed by the Magistrate was manifestly inadequate. I set aside the sentence imposed by the Magistrate and, on 26 November 2010, proceeded to re-sentence the defendant. These are my reasons for allowing the appeal, and for the sentence I imposed.
The victim of the assault was the defendant’s female de facto partner. At the time of the offending, 9 May 2010, the defendant and his victim had been in a relationship for some nine months. At the time of the offence, the victim was eight weeks pregnant. The defendant was the father of the child she was carrying and was aware that she was pregnant. The defendant and his victim were sitting together having a conversation on a park bench at Elder Park. During that conversation the defendant became aggressive toward the victim. At that point the victim stood up to leave. As she did so the defendant punched her to the left side of the head with sufficient force to cause her to fall to the ground. As she lay on the ground the defendant kicked her in the head. The punch and the kick caused the victim to black out. When she recovered consciousness, she was still on the ground and was experiencing extreme pain to the left side of her head and to her stomach area. She was treated by paramedics at the scene of the offence and was taken to the Royal Adelaide Hospital. She was discharged later that day and has sustained no permanent injury.
When questioned, the defendant admitted that he had struck and kicked the victim, explaining that he had become angry with something that she had said.
Following his arrest, the defendant was released on bail. A condition of his bail was that he not approach or communicate directly or indirectly with the victim.
On 8 August 2010 at Hackney, the defendant committed the offence of trespass. He had been directed to leave premises at Hackney, however he re-entered those premises within 24 hours of that direction. His explanation was that he wanted to see if another man was with his de facto partner.
On 21 August 2010, the defendant was observed by police to be sitting next to the victim in James Place, Adelaide, having a conversation. When he saw the police he stood up and tried to walk away. When arrested he explained that he thought that as the original Court date had been adjourned he was no longer on bail. However, he acknowledged that he was not meant to be in contact with the victim.
On appeal, the police did not complain about the sentence imposed with respect to the offences of trespass and breach of bail. The defendant was unrepresented both before the Magistrate and on the hearing of this appeal.
When sentencing, the Magistrate remarked:
But for your early guilty pleas I would not have hesitated – had you been found guilty following a trial – to sentence you to a term of imprisonment, but I am not going to do that today because of your guilty pleas.
I take into consideration the circumstances personal to you.
I also take into consideration the submissions put to me by Sergeant Clover who says that the assault is a serious offence. I agree with Sergeant Clover, but because of your personal circumstances and lack of offending history, I am going to give you an opportunity to be subjected to a penalty which is in a non-custodial environment, however, I still have some concerns because you tell me you intend to re-invigorate your relationship with the victim who is pregnant with your child.
I record convictions for all offences.
Pursuant to s 18A of the Criminal Law (Sentencing) Act I will impose one penalty.
You will be released upon entering into a bond in the sum of $200 to be of good behaviour for a period of 18 months and to appear before the Court for sentence if you breach a condition of the bond.
It will be a condition of the bond that you be under the supervision of a community corrections officer for 18 months and obey the lawful directions of that officer, particularly with respect to attending programs and counselling as directed by the supervising community corrections officer in relation to mental health assessments, anger management and counselling for domestic violence.
Counsel for the police submitted that the penalty imposed for the offence of common assault was manifestly inadequate. It was contended that the Magistrate erred in reasoning that the early guilty pleas were in themselves a sufficient reason not to impose a term of imprisonment. It was said that the remarks of the Magistrate disclosed that he reached this conclusion before having regard to other factors.
An unchallenged affidavit filed by the prosecutor includes the following with respect to the hearing before the Magistrate:
His Honour then put the following propositions to me:
That the defendant was not charged with an aggravated assault on the basis of a domestic relationship, and therefore he could not be sentenced on the basis that such a relationship was an aggravating feature of the offending.
That the defendant was to be sentenced on the facts most favourable to him.
I began to reply stating “Your Honour if I can make the following points about those issues” at which point His Honour interrupted me and asked the defendant to make his submissions on the matter.
The defendant told the Court that he was sorry for what he had done. The defendant indicated that he wished to continue his relationship with the victim. He did not offer an explanation, nor was he asked, why he had assaulted the victim.
His Honour did not return to me and I was not given the opportunity to respond to the points His Honour raised with me.
It was submitted that this interchange demonstrated a misunderstanding on the part of the Magistrate as to the relevance of the domestic relationship that existed between the defendant and his victim and the fact of the victim’s pregnancy.
Counsel for the police drew attention to a number of authorities dealing with the issue of domestic violence. In particular, reference was made to my observations in Wilkinson.[4] In that decision, I noted that it had been recognised that the causes of domestic violence are multiple:[5]
…It has been recognised that relevant contributing factors include immaturity, mental illness, abnormal personality disorders, inhibition through drug abuse, poor anger management and lack of counselling and support. Courts have identified all of the above as common causative factors in modern times. Although imposing longer and longer terms of imprisonment does remove perpetrators from the community, domestic violence continues and its incidence increases. The imposing of sentences of imprisonment is a blunt instrument that does not adequately address the underlying causes of domestic violence in any real way.
[4] R v Wilkinson (2008) 101 SASR 21.
[5] R v Wilkinson (2008) 101 SASR 21 at [27]; see also R v Ironside (2009) 104 SASR 54 at [163]-[166].
I emphasised that that it has long been judicially recognised that personal and general deterrence have a heightened significance when sentencing for the crimes of domestic violence,[6] drawing on the observations of King CJ in Banens and Doyle CJ in Lennon:[7]
As King CJ observed in Banens:
The sentence which is imposed by the court for a crime of domestic violence is aimed, in large part, at deterring other people who may be involved in like situations. I think that, in a serious case of domestic violence, it is necessary for this Court to make clear, by actual intervention, to the public that the sentences imposed for this type of crime are calculated to provide effective deterrence to those who might be tempted to commit similar crimes. Not only must the penalties imposed operate, as far as such penalties can, as an effective deterrent, but it must be made clear to the public that the courts are imposing sentences having that effect. It is a question not only of actual deterrence but assurance to the public that deterrent penalties are being imposed.
In Lennon, Doyle CJ reaffirmed these observations:
The court has said consistently that it must do what it can to protect women from violence by men. This applies just as much to violence within a domestic relationship as it does to violence in other situations. In cases like this the community expects, and protection of women requires, that the court should impose a sentence that is likely to deter the individual offender and to deter other potential offenders. The fact that the violence occurs on the spur of the moment is a relevant factor, but this is often true in the case of domestic violence. The impulsive nature of such offences is often offset by the fact that, as here, there is a pattern of violence within the particular relationship, or on the part of the particular offender. Mr Lennon's record makes it clear that he has not yet learned that violence towards women cannot be accepted.
[6] Similar observations were made in R v Partridge [2008] SASC 323 at [7], which were recently applied and adopted by the Court of Criminal Appeal in R v Cowe [2010] SASCFC 46 at [27] (Sulan J, with White & David JJ agreeing).
[7] R v Wilkinson (2008) 101 SASR 21 at [28], citing R v Banens (unreported, Supreme Court of South Australia, 18 November 1987) at 7-8, R v Lennon (2003) 86 SASR 295 at [12].
I concluded:[8]
Domestic violence is predominantly directed by men toward women. The community expects the law to protect women, to protect the weak from the strong, and to protect the vulnerable from the oppressor. These are factors that have led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. Parliament has recognised that crimes involving violence and assault may be aggravated by a domestic situation.
[8] R v Wilkinson (2008) 101 SASR 21 at [29].
I consider that the Magistrate failed to have sufficient regard to the fact that this was an act of domestic violence to a young pregnant woman. The fact that the defendant was angry did not justify or excuse in any way the violence perpetrated. He struck his young female partner in circumstances which put her health, and that of the child that she was carrying, in jeopardy. His victim was entitled to be treated with patience and respect, not the physical abuse that she received. I consider that the Magistrate was in error in failing to have proper regard to this factor. Although the defendant was not charged with an aggravated assault on the basis of his domestic relationship, this was still a relevant factor to be considered.
Although this is a re-hearing of a Magistrates Court matter, it equates in substance to a Crown appeal on sentence. As such, the defendant is exposed to an element of double jeopardy.[9] I have approached the appeal on the basis that the usual strictures apply in respect of such an appeal.[10] For this Court to disturb the sentence on the Crown appeal, more than a mere error on the part of the Magistrate must be shown. It must be demonstrated that the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”.[11]
[9] Malvaso v The Queen (1989) 168 CLR 227 at 234; Everett v The Queen (1994) 181 CLR 295 at 299.
[10] Such appeals should only be granted in “rare and exceptional cases”: see Everett v The Queen (1994) 181 CLR 295 at 299.
[11] See R v Nemer (2003) 87 SASR 168 at [22]-[24] (Doyle CJ); Everett v The Queen (1994) 181 CLR 295 at 299; Malvaso v The Queen (1989) 168 CLR 227 at 234 (Deane and McHugh JJ).
In my view, the penalty imposed by the Magistrate with respect to the offence of common assault was so manifestly inadequate as to shock the public conscience, and as to demonstrate that the sentencing process was permeated with error. I consider that the community would reasonably expect something more by way of penalty than the recording of a conviction and release on a good behaviour bond. General deterrence is an important factor to be considered. Those in a domestic relationship, particular men, must understand that violence toward their partner is totally unacceptable.[12] Conduct such as the defendants may be expected to give rise to the imposition of a term of imprisonment.
[12] See the remarks of Doyle CJ in R v Lennon (2003) 86 SASR 295 at 297; R v Wilkinson (2008) 101 SASR 21.
The mere fact of the guilty pleas did not warrant the Magistrate’s conclusion that there should not be a term of imprisonment imposed. Other factors required consideration, in particular, the fact that this was a case of domestic violence.
It is necessary for the entire sentence to be reconsidered. In the circumstances, I propose to sentence the defendant separately in regard to each offence.[13]
[13] I sentenced the defendant on 26 November 2010.
When re-sentencing I proceed on the basis that the defendant has an otherwise unblemished record. I also bear in mind that the defendant’s conduct in regard to all offences arose out of domestic circumstances. I note that the defendant continued to express his regret for his conduct on the appeal and that he appears to recognise the seriousness of his misconduct.
But for the plea of guilty I would have imposed a sentence of six months imprisonment with respect to the offence of common assault. I reduce that as a consequence of the plea and the defendant’s contrition and remorse, to a sentence of four months imprisonment. I consider, having regard to the defendant’s unblemished record, his evident regret, contrition and remorse, that there is good reason to suspend the sentence[14] on his entry into a three year good behaviour bond, to be supervised for 18 months. Conditions with respect to anger management, domestic violence and drug and alcohol abuse are to be included in that bond.
[14] Pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA).
In respect of the other two offences, I would confirm the convictions but release the defendant without further penalty.