Police v Morrison - [2007] SASC 330

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v MORRISON
[2007] SASC 330
Judgment of The Honourable Justice Kelly (ex tempore)
7 September 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE
Prosecution appeal against sentence - assault occasioning actual bodily harm - resisting a police officer - whether discretion of sentencing Magistrate miscarried - whether non-parole period manifestly inadequate - whether undue weight given to respondent's personal circumstances - whether insufficient weight placed on deterrence as paramount sentencing consideration - discussion of principles applicable to prosecution appeal against sentence.
Held - having regard to circumstances of respondent, sentence well within discretion available to Magistrate - sentence not so disproportionate to seriousness of crime as to shock public conscience - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 40; Magistrates Court Act 1991 (SA) s 42; Summary Offences Act 1953 (SA) s 6; Criminal Law (Sentencing Act) 1988 (SA) s 18A, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168, applied.
Police v Brookman (2006) SASC 378; Osenkowski v The Queen (1982) 30 SASR 212; R v Creed (1985) 37 SASR 566, discussed.

POLICE v MORRISON
[2007] SASC 330
Magistrates Appeal: Criminal
KELLY J (Ex Tempore):
Introduction

This is a prosecution appeal against sentence under the provisions of s 42 Magistrates Court Act1991 (SA).
On 22 January 2007 or thereabouts the respondent, Mr Morrison, pleaded guilty to two counts of assault occasioning actual bodily harm contrary to s 40 Criminal Law Consolidation Act 1935 (SA) and one count of resisting a police officer in the execution of his duty contrary to s 6(2) Summary Offences Act 1953 (SA).
Each offence of assault occasioning actual bodily harm attracts a maximum penalty of five years imprisonment. The offence of resisting a police officer in the execution of his duty attracts a maximum term of imprisonment of six months imprisonment or $2,500 fine.
The respondent was sentenced on 7 June 2007 to one penalty under the provisions of s 18A of the Criminal Law (Sentencing Act) 1988 (SA) of three years and six months. That sentence was to commence on the expiration of the balance of unexpired parole for a previous offence of one year and eighteen days. The learned Magistrate imposed a non-parole period of five months.
Circumstances of the Offence
At about 6.00 am on Saturday 24 September 2005 police were called to a disturbance outside a nightclub in Adelaide where a group of males were reported to be fighting. The respondent, who was under the influence of alcohol and heroin on that day, observed his cousin being tackled by police officers and tried to intervene, assaulting two police officers, Moir and Baker. The police officer Moir was injured when the respondent struck him twice in the area of the head while holding a bottle. He required four stitches but it was obvious, given the circumstances, that the injuries might have been much worse. The victim police officer Baker suffered a fracture to the scaphoid bone of the wrist when he tried to arrest the respondent.
The three offences to which the respondent pleaded guilty all arose out of that one incident.
At the hearing of this appeal the respondent’s antecedent report was tendered by consent. It revealed that the respondent has been imprisoned on a number of previous occasions for offences of dishonesty, drug related matters and offences of violence including a robbery in 2003. At the time of committing the current offences on 24 September 2005 the respondent was on parole for offences committed in 2004, for which he had been convicted on 30 November 2004. That unexpired portion of parole required to be served as a result of his conviction for the current offences was one year and eighteen days.
That meant that the total head sentence for which the respondent became liable as a result of the convictions was four years, six months and eighteen days.
Prosecution Appeal
The prosecution appeals on the basis that the Magistrate’s sentencing discretion miscarried in three ways. First, that the sentence and in particular the non-parole period was manifestly inadequate. Second, that the Magistrate placed undue weight on the personal circumstances of the respondent. Third, that insufficient weight was placed on deterrence as the paramount sentencing consideration.
Principles which apply to prosecution appeals against sentence
At the hearing of this appeal both counsel conceded that the principles applicable in the case of a prosecution appeal against sentence are those principles enunciated in Everett v The Queen (1994) 181 CLR 295 and R v Nemer (2003) 87 SASR 168.
The relevant principles were helpfully and succinctly summarised by Layton J in Police v Brookman (2006) SASC 387. I respectfully adopt her Honour’s remarks at page 4:
A court will only entertain a prosecution appeal against sentence in “rare and exceptional circumstances”, where it is necessary to:
·    lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;
·    establish and maintain adequate standards of punishment for crime;
·    correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crimes;
·    correct a sentence which was so disproportionate to the seriousness of the crime as to shock the public conscience; and
·    ensure, so far as the subject matter permits, that there would be uniformity in sentencing.
Underpinning the “rare and exceptional” test is the principle against double jeopardy. Although a prosecution appeal against sentence is not a true “double jeopardy” because there is no res judicata, in a practical sense, it falls within ‘a species of double jeopardy’. As the Full Court of the Federal Court explained in R v Tait and Bartley:
… A Crown appeal puts in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal (per Isaacs J in Whittaker v R). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court. …
The onus is on the appellant to establish that this is a case within that category of rare and exceptional cases where the sentencing discretion of the Magistrate should be interfered with. Having regard to the principles espoused in Everett v The Queen, the appellant must establish that there has been some error in principle which encompasses a manifest inadequacy in sentencing standards.
Analysis
The appellant’s notice of appeal included a complaint about the head sentence as well as the non-parole period but at the hearing of this appeal counsel for the Director conceded that the appellant’s real complaint was about the non-parole period. It was submitted that the non-parole period was so low as to shock the public conscience and it was so plainly disproportionate to the head sentence of three and a half years that it could not be allowed to stand.
After reading the Magistrate’s remarks it is my view that the appellant’s submission cannot be accepted.
The Magistrate correctly characterised the offences as “undeniably serious”.
The head sentence of three years and six months was in my view well within the Magistrate’s discretion having regard to the seriousness of the offences, the respondent’s background and history and the need for the court to give weight to principles of both general and personal deterrence.
The personal circumstances of the respondent in this matter were a very important issue for a number of reasons. There was evidence, not disputed, that the respondent had spent the considerable amount of time he had spent on bail and home detention bail in undertaking an anger management course, attending a business course at Stone’s College as a result of which he obtained employment with the Department of Treasury and Finance. The Magistrate took into account the fact that the Department, notwithstanding the impending incarceration of the respondent, confirmed that the respondent’s job would remain open until 27 November 2007. In all of the circumstances the Magistrate’s finding that the process of rehabilitation was well under way and that an extended period of imprisonment would threaten that rehabilitation was plainly open.
It is true that the respondent’s background and criminal history is poor. It is also true that this young Aboriginal man had, since the offending in September 2005, embarked on a quite remarkable change of lifestyle and there was concrete evidence before the Magistrate to support that submission.
In R v Creed (1985) 37 SASR 566 King CJ in the course of answering a submission that a non-parole period should, in an ordinary case, represent two-thirds of the head sentence said:
… I would wish to say that the Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm. Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case. In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.
In Osenkowski v The Queen (1982) 30 SASR 212 King CJ said this:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
After considering the whole of the Magistrate’s remarks in my respectful view this was just such a case of the kind referred to by King CJ. The Magistrate in my view when determining an appropriate non-parole period was entitled to take into account that the respondent had reached a critical juncture in his life. As the Magistrate put it for the respondent: “it is now or never”. Such a finding was open to the Magistrate. I doubt whether I would have reached a different conclusion but of course that is not the test for an appeal court.
In all of the circumstances I am not persuaded that this is one of those rare and exceptional cases where this court should intervene. After a careful reading of the Magistrate’s remarks I am not persuaded that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience. On the contrary, I consider that the sentence was well within the discretion available to the sentencing magistrate having regard to the particular circumstances of this respondent.
For these reasons the appeal is dismissed.