Police v Kennedy - [2005] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v KENNEDY
Judgment of The Honourable Justice Gray
12 May 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
Crown appeal against sentence - respondent charged with assault occasioning actual bodily harm - assault arose out of circumstances of road rage - appeal on grounds that magistrate erred in failing to record a conviction and that sentence manifestly inadequate.
Discussion of section 16 of the Criminal Law (Sentencing) Act 1988 (SA) - consideration of magistrate's exercise of discretion - discussion of ability of appellate court to interfere with exercise of discretion - consideration of sentencing principles.
Held - appeal allowed - sentence imposed by magistrate set aside - respondent convicted of assault occasioning actual bodily harm - respondent to enter into three-year good behaviour bond.
Criminal Law Consolidation Act 1935 (SA) s 40; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; Reeves v Police (1997) 70 SASR 451; Lock v Police [1999] SASC 50; Balnaves v Police [2001] SASC 159; Toohey v Police [2001] SASC 44; Nichols v Police [2005] SASC 106, considered.

POLICE v KENNEDY
[2005] SASC 173
Magistrates Appeal
GRAY J:
Introduction

This is a Crown appeal against sentence.
The respondent, Nicholas John Kennedy, was charged on information that on 12 February 2004 at West Lakes, he assaulted a person above the age of 12 years thereby occasioning him actual bodily harm contrary to section 40 of the Criminal Law Consolidation Act 1935 (SA). The respondent pleaded guilty at trial.
The offence exposed the respondent to a maximum term of imprisonment of five years. As the matter proceeded in the Magistrates Court, the maximum penalty that could be imposed by that court was imprisonment for two years.
The Facts
The offending arose out of circumstances of road rage. The respondent was driving his truck in the vicinity of a loading dock at the West Lakes shopping mall. The victim was driving a motor vehicle in the same area. At the time the victim was trying to move his vehicle to make way for the respondent’s truck. To do so, he moved his vehicle forward and backward several times. On one of the forward movements, the front of his vehicle made slight contact with the wheel and tyre of the respondent’s truck.
The respondent then alighted from the truck and approached the victim. He did so in an aggressive manner. The driver’s window was down. The respondent remonstrated with the victim, and when doing so was almost “nose to nose” with him. The victim reacted by raising his arm to make space between his face and the respondent’s face. The victim accepted that in raising his hand he might have made contact with the respondent’s face, leaving a minor scratch.
The respondent then forcefully punched the victim, who had remained seated in the vehicle, two or three times through the open driver’s window. He struck the victim in the left eye, causing immediate injury.
The victim sought medical treatment at the Queen Elizabeth Hospital. The treating doctor first thought there had been a fracture in the region of his eye. However, it was later determined that no definite fracture could be detected; although there was fluid in the left maxillary antrum. The victim required stitches to a cut near his eye. Photographs taken several weeks after the incident disclosed severe bruising in the area of the left eye. The victim was absent from work for two weeks. He was required to attend the hospital on several occasions for further treatment and assessment.
The Proceedings before the Magistrate
The prosecutor outlined the allegations of fact and the respondent’s criminal antecedents including, an offence of driving with excess blood alcohol in March 1993, an offence of failing to comply with a direction to submit to an alcotest in March 1996 and offences of loitering and resisting police in March 1998.
Counsel for the respondent submitted to the magistrate that the incident the subject of this offending did not arise from a typical road rage episode. It had arisen, it was said, from a perception that the victim was being deliberately obstructive in his manner of driving. Counsel claimed that the respondent had punched the victim only when he thought that the victim had deliberately clawed at him.
Counsel further submitted that the respondent was a person of good character, notwithstanding his prior court appearances. References from his employer and others attested to his good character. Counsel said that the respondent was unlikely to offend again, and that in the circumstances the court should proceed without recording a conviction.
Section 16 of the Criminal Law (Sentencing) Act 1988 (SA) provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
The magistrate then invited the prosecutor to respond to the submission that the court should proceed without recording a conviction. The prosecutor did so and submitted that the circumstances of the offending were serious as were the consequences to the victim. The prosecutor contended that the late plea did not demonstrate any real contrition. Further, the prosecutor pointed out that the respondent had made no reparation. It was submitted that the court could not properly reach the conclusion that the respondent was unlikely to commit such an offence again given his prior antecedents. The prosecutor pointed out that the offence was one that the respondent could easily have avoided, and that the respondent’s approach to the victim was the “worst way” in which to deal with the situation.
The prosecutor submitted that, with respect to offending of this nature, deterrence was an important sentencing consideration, and that the jurisdiction provided by section 16 of the Sentencing Act should not be invoked.
The Sentence
The magistrate accepted the submission of counsel for the respondent and invoked her powers under section 16 of the Sentencing Act. Without recording a conviction, the magistrate proceeded to impose a fine of $500. In the course of her ex tempore remarks, the magistrate observed:
In sentencing you I have to take into account a large number of factors as outlined in section 10 of the Sentencing Act including the circumstances of the offence and the injury that resulted. I take into account that you pleaded guilty to this offence and that you did cooperate with the investigating police in that you make admissions when you were interviewed. I need to take into account the requirement that there be deterrence for both yourself and others in imposing this sentence and that the community must be protected from violent offences such as this one.
In all the circumstances I do not consider a penalty of a sentence of imprisonment is appropriate. In reaching that conclusion I take into account your prior record, which, although includes some traffic infringements and loitering and resist police offences in 1998, shows that you do not have a propensity for violence. I must balance that, however, with the seriousness of the offence.
Your counsel has submitted that I should proceed to sentence you today without recording a conviction and he relies on the provisions of section 16 of the Criminal Law Sentencing Act.
The first issue that I must be satisfied of pursuant to that section is that you are unlikely to commit such an offence again. I am satisfied that this offence is not of the same character of the prior convictions that you have. It is a situation that got out of hand. The character reference that has been tendered to me establishes that you are a person of good character and this event must be viewed as being out of character for you. In relation to the remainder of section 16 I have regard to your character and antecedents and in particular, your age. You are a mature person and you have managed to get to this age without having any prior conviction of this nature. In those circumstances I think it appropriate to give you the benefit of the provisions of section 16 and not to record a conviction. So without proceeding to record a conviction you will be fined $500 and pay court fees, costs and levy totalling $240.
The Appeal
It is settled that a prosecution appeal against sentence will only be justified in a rare and exceptional case. If error can be identified in the sentencing process, it may be open to the Court to allow the appeal. Further, as observed in Everett v The Queent[1] and Police v Cadd,[2] an appellate Court may also intervene to maintain an appropriate degree of uniformity of sentencing and to maintain adequate sentencing standards. Counsel for the Crown accepted that these principles should guide this appeal.
[1] (1994) 181 CLR 295.
[2] (1997) 69 SASR 150.
Road Rage
As observed by this Court in Reeves v Police[3], Lock v Police[4], Balnaves v Police[5], Toohey v Police,[6] and Nichols v Police,[7] general and personal deterrence are important considerations when sentencing offenders for violence arising out of frustration on the road. “Road rage” offences are of serious public concern, and penalties imposed for such offending ought to reflect this. There is a strong community interest in individuals being deterred from taking the enforcement of road rules into their own hands. In Reeves, Doyle CJ made the following observations when rejecting an appeal against a suspended sentence of imprisonment:[8]
... in cases such as this, where the conduct involves a loss of temper in the course of driving, the need for general deterrence necessitates a stern response. A clear message needs to be given to the community that frustration on the road is not to be translated into violence. Especially is this so in cases such as the instant one, where the appellant acknowledges he struck the car, not once, but on two or three occasions. The offence was committed in circumstances such that the magistrate was entitled to consider imprisonment as an option. The magistrate appears to have attached some weight to the appellant’s prior record. He has a very bad criminal record. It reflects a flagrant disregard for the law spanning a considerable period of time. It extends from 1980, as a juvenile, to 1995. It includes driving offences, minor drug offences, dishonesty offences and offences involving violence. The appellant has been given plenty of chances to reform. He has been in prison before.
[3] (1997) 70 SASR 451.
[4] [1999] SASC 50 (Nyland J).
[5] [2001] SASC 159 (Perry J).
[6] [2001] SASC 44 (Olsson J).
[7] [2005] SASC 106.
[8] (1997) 70 SASR 451 at 453.
In Toohey,[9] Olsson J endorsed these remarks when dealing with an appeal involving a common assault:
Whilst I agree that the mere fact that the assault under consideration arose in the context of a “road rage” incident cannot properly be resorted to as a justification for elevating an offence of common assault above its inherent gravity, the fact remains that road rage incidents are becoming a matter for serious social concern. The Chief Justice stressed, in Reeves, that the need for general deterrence in such cases does necessitate a stern response. As he put it “A clear message needs to be given to the community that frustration on the road is not to be translated into violence.”
[9] [2001] SASC 44 at [22].
Section 16 Considerations
In the course of the magistrate’s ex tempore sentencing remarks, no reference was made to the authorities concerning road rage incidents or to the important role that deterrence should play in the sentencing process. The absence of any reference to this important consideration suggests that inadequate weight was given to the issue of deterrence in this case.
It is to be accepted that the respondent’s criminal antecedents did not of themselves disclose a propensity for violence. His criminal antecedents did however, suggest that he has a problem with behaviour control. The drink-driving offences suggest an inability on the part of the respondent to moderate his behaviour appropriately when driving motor vehicles. The offences of loitering and resisting police suggest an inability to behave appropriately particularly when confronted by police.
The present offending is a further example of the inability on the part of the respondent to control his behaviour. The respondent’s antecedents do suggest a problem with behaviour control; and in the circumstances it was inappropriate for the magistrate to conclude that the respondent was unlikely to commit such an offence again. Rather, the indications were that the respondent did require some form of assistance to modify and control his behaviour.
As the sentencing remarks referred to earlier demonstrate, the magistrate placed particular weight on the respondent’s age. She reasoned that, because the respondent had reached the age of 32 years without any prior conviction of this nature, this was a factor relevant to the application of section 16. The respondent’s personal antecedents were a relevant factor including his criminal antecedents. It might be suggested that, as a 32-year-old mature adult, he should have been able to cope with the situation without the confrontation that in fact occurred.
In the circumstances, the magistrate erred in invoking the jurisdiction conferred by section 16 of the Sentencing Act and in proceeding without recording a conviction.
In any event, the penalty imposed was manifestly inadequate. Incidents of road rage have in other cases led to orders for imprisonment and suspended terms of imprisonment. To proceed without recording a conviction and only imposing a modest fine was manifestly inadequate. There is a need for this Court to allow this appeal for the purpose of maintaining adequate sentencing standards. However, this is a Crown appeal, it is appropriate when re-sentencing to impose a sentence at the lower end of the appropriate range.
Re-sentencing
Counsel for the respondent outlined his client’s personal antecedents. The respondent is a family man in employment. He is the sole income earner for the family. He has a young son who is seriously ill. The respondent is a good candidate for rehabilitation.
In determining an appropriate penalty, regard has been had to the circumstances of the offending, the antecedents of the respondent, the character references and the submissions made by both counsel.
This appeal is allowed. The sentence imposed by the magistrate is set aside. The respondent is convicted and released on his entry into a three-year good behaviour bond. He is to be supervised by a correctional services officer for the first two years and is to undergo such courses, including anger management, as his correctional services officer may direct. The respondent is to pay court fees, costs and levies totalling $240.