Police v Koko

[2014] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v KOKO

[2014] SASC 107

Judgment of The Honourable Justice Bampton

12 August 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER

Crown appeal against an eight week suspended sentence for one count of basic assault – whether the sentencing discretion miscarried resulting in a manifestly inadequate sentence – whether Magistrate applied the wrong test in suspending the sentence – the respondent has a long history of criminal offending – whether personal circumstances and background of deprivation and disadvantage warrant leniency.

Held: sentencing discretion miscarried – respondent resentenced to an immediate custodial sentence of four months’ imprisonment.  Appeal allowed.

Criminal Law Consolidation Act 1935 (SA) s 20(3), referred to.
Bugmy v The Queen (2013) 249 CLR 192; The Queen v Wilton (1981) 28 SASR 362; Leech v Koko (1989) 51 SASR 131; R v Buckman (1988) 47 SASR 303, considered.

POLICE v KOKO
[2014] SASC 107

Magistrates Appeal:  Criminal

BAMPTON J.

1. On 31 January 2014, Ms D was sitting on a beach at Port Augusta with a friend.  Mr Koko approached Ms D and accused her of spreading gossip about him.  He then punched Ms D twice to the head.  Mr Koko then began to walk away but immediately returned and kicked Ms D twice in the back.  Ms D grabbed a stick in an attempt to defend herself which Mr Koko took from her and then again punched her in the head.  The assault was unprovoked, resulting in bruising and a laceration to Ms D’s cheek.  Ms D did not receive any medical treatment.  When spoken to by police, Mr Koko made full and frank admissions and admitted he had lost his temper at Ms D because he believed she had been gossiping about him. 

2. Mr Koko was arrested and released on bail on 31 January 2014. 

3. On 18 March 2014, Mr Koko pleaded guilty in the Ceduna Magistrates Court to one count of basic assault pursuant to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).

4. Mr Koko was sentenced to eight weeks’ imprisonment.  The sentence was suspended upon him entering into a 12 month bond to be of good behaviour.

5. The police now appeal against the sentence claiming it is manifestly inadequate.  

   The submissions made to the Magistrate

6. At the hearing of the guilty plea, the prosecutor told the Court that Ms D sustained a bruise about her right eye, a small laceration to her forehead and swelling to her cheek.

7. The prosecutor informed the Court of Mr Koko’s extensive history of criminal offending and submitted that an immediate term of imprisonment was warranted.

8. Mr Koko’s antecedent report[1] indicates that he has a record extending back to July 1981, commencing with five matters dealt with by the Children’s Court and thereafter an extensive history of offending dealt with by the Magistrates Court.  Those matters include in excess of 60 convictions.  The convictions include:

   ·three convictions for assaulting police;

   ·seven convictions for common assault;

   ·six convictions for assaulting a member of his own family;

   ·one conviction for aggravated assault;

   ·one conviction for assault occasioning harm for which he was sentenced and served six months’ imprisonment; and

   ·one conviction for unlawful wounding.

   [1]    FDN 3, Exhibit PS-3.

9. Mr Koko’s last conviction for assault was recorded on 26 August 2011.  On this occasion he was convicted of aggravated assault and two counts of failing to comply with a domestic violence order.  He was sentenced to three weeks and two days’ imprisonment which was suspended upon him entering into a bond to be of good behaviour for 12 months.  On 15 June 2012, he was found to have breached this good behaviour bond and was ordered to serve the sentence of three weeks and two days’ imprisonment.  Between the 26 August 2011 conviction and 31 January 2014 offending, Mr Koko was convicted of contravening a term of an intervention order on six occasions.  He was ordered to serve six weeks’ imprisonment on 15 June 2012 and 21 days’ imprisonment on 24 December 2013 in respect of two of these convictions. 

10. Counsel for Mr Koko told the Magistrate that Mr Koko acknowledged that his behaviour was exceedingly poor and that he was contrite and remorseful.  He admitted that he overreacted having formed the view that Ms D was gossiping about him.  Counsel referred to Mr Koko’s Aboriginality, his distressed upbringing and his history of difficulties with alcoholism.  It was submitted that his good judgement was impaired by alcohol intoxication at the time of his offending.  The Magistrate was asked to take into account Mr Koko’s cooperation with the police.

11. The Magistrate was also told of his integration into and contribution to the community doing cleaning work through the Remote Jobs and Communities Program.

12. Counsel for Mr Koko requested that the Magistrate obtain a pre-sentence report if he contemplated imposing an immediate term of imprisonment. 

    The Magistrate’s reasons for sentence

13. In his reasons, the Magistrate referred to Mr Koko’s significant history of offending and in particular his convictions for assault.  He noted that Mr Koko is a man who lives in the Yalata community and that:

    In a somewhat mitigated context it can be accepted that this particular offence of basic assault is different from his previous offending history of committing assaults against his domestic partner and breaches of an intervention order where he has been sentenced to terms of imprisonment and or given the benefits of suspended terms of imprisonment.

14. The Magistrate said that, taking into account Mr Koko’s offending history and the prosecution submission that an immediate term of imprisonment was called for, in his view, Mr Koko “should still be deserving of one opportunity without any immediate custodial penalty”.  The Magistrate said that a term of eight weeks’ imprisonment for the offence was appropriate, but that he found grounds to suspend the sentence.

    The appeal

15. The appellant complains that the Magistrate erred by applying purported differences between the assault committed 31 January 2014 and his previous assaults and breaches of intervention orders as being grounds for mitigation.

16. By using the expression “in a somewhat mitigated context”, the Magistrate was drawing a distinction between the basic assault committed on 31 January 2014 and his prior aggravated offending against his partner and breach of intervention orders pertaining to his partner.

17. Secondly, the appellant complains that the Magistrate conflated his imprisonment and suspension decisions.  The Magistrate commented that Mr Koko “should still be deserving of one opportunity without any immediate custodial penalty” and set a term of eight weeks’ imprisonment.

18. The appellant’s third complaint is that the Magistrate appears to have used the wrong test to decide whether the sentence should be suspended.  The Magistrate found that there were “grounds to suspend the term of imprisonment for this offence”.

19. Counsel for Mr Koko submitted that the Magistrate properly exercised mercy, taking into account the fact that Mr Koko was a member of the Yalata community.  It was contended that the consequence of allowing the appeal would amount to the double jeopardy referred to by King CJ in The Queen v Wilton.[2]  It was submitted that Mr Koko has a suspended sentence hanging over his head and he knows that if there is a breach of the bond he will need to serve the eight week sentence.  Counsel pointed out that the Magistrate has wide experience in sentencing Aboriginal people from the west coast of South Australia and that their disadvantage is properly regarded as a matter of mitigation.[3]

    [2] (1981) 28 SASR 362 at 367-368.

    [3]    Bugmy v The Queen (2013) 249 CLR 192.

20. It was argued that Mr Koko’s admission of his overreaction to the gossip, his contrition, remorse and the fact that he had pleaded guilty were proper matters to take into account and good reason to suspend.

    Analysis

21. There was no basis upon which to distinguish Mr Koko’s assault against Ms D from his prior offending against his partner. It was an unprovoked attack against a woman sitting on the beach. He inflicted two punches to her head and two kicks to her back.

22. Further, Mr Koko’s history of offending clearly shows he is not a candidate for “one last opportunity”.  Finally, the Magistrate did not identify the grounds or good reason he considered justified suspending the sentence.

23. I have kept in mind the principles upon which an appeal court will increase a sentence and the strictures imposed by those principles.  In my view, insufficient regard has been given to the seriousness of the offence, Mr Koko’s history of criminal offending, the need for personal deterrence and good reason to suspend. As a result the sentencing discretion has miscarried resulting in a manifestly inadequate sentence of eight weeks’ imprisonment.

24. I allow the appeal and will resentence Mr Koko.

    Resentence

25. The maximum penalty for assault is two years’ imprisonment. In resentencing, I take into account Mr Koko’s history of criminal offending and the particular need for personal deterrence.  I bear in mind Mr Koko’s personal circumstances, his long history of alcoholism and the deprivation and disadvantage he suffers as a Yalata resident.[4]  I take into account his contrition and his cooperation with the police. 

    [4]    Leech v Koko (1989) 51 SASR 131 at 138.

26. I impose a sentence of four months’ imprisonment reduced by 30 per cent from six months on account of Mr Koko’s early guilty plea.

27. In considering whether there is good reason to suspend the sentence, I note that there have been periods of time when Mr Koko has not committed offences of violence.  Between 8 March 2005 and 21 August 2011 his offending was confined to Road Traffic Act 1961 (SA) and Motor Vehicles Act 1959 (SA) offences. Further, whilst he contravened an intervention order on many occasions between 26 August 2011 and 31 January 2014, he was not convicted of any offence of violence. It is indisputable Mr Koko is in dire need of alcohol rehabilitation in order that he stop his violent offending.

28. However, Mr Koko has had the benefit of suspended sentences on numerous occasions.  He has twice breached a suspended sentence bond.  He has breached intervention orders on many occasions and now has 20 convictions for assault. 

29. A sentence of imprisonment should only be suspended “where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life”.[5] Mr Koko’s offending history indicates that he is not a candidate for a suspended sentence. He has demonstrated that he has a disregard for Court orders and he does not appear to be inclined “to benefit from leniency”.[6] 

    [5]    R v Buckman (1988) 47 SASR 303 at 304.

    [6]    The Queen v Wilton (1981) 28 SASR 362 at 368-369.

30. There is no good reason to suspend the sentence.