Police v Papadopoulos

[2008] SASC 325

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v PAPADOPOULOS

[2008] SASC 325

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Kelly)

26 November 2008

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 - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON

Respondent pleaded guilty in the Adelaide Magistrates Court to offences of assault and assault causing harm – respondent sentenced in Magistrates Court to a term of 7 months imprisonment – magistrate declined to suspend the sentence – respondent appealed to a single judge of the Supreme Court whereupon the sentence was suspended – prosecution appeal against suspension of sentence – whether demonstrated error and manifest inadequacy or inconsistency in sentencing.

Single judge on appeal held that magistrate erred in declining to suspend the sentence of imprisonment – magistrate did not counterbalance the seriousness of the offending with the respondent’s personal circumstances.

Held: Appeal allowed – error of principle justifying interference found – magistrate correct to conclude that the requirements of deterrence outweighed considerations in favour of suspending the sentence – order of single judge suspending the sentence set aside – sentence of magistrate restored.

Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11, referred to.
WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147; Everett v The Queen (1994) 181 CLR 296, applied.
Dinsdale v R (2000) 202 CLR 321; R v Becker (2005) 91 SASR 498; Badari v Police (2003) 227 LSJS 80, discussed.

POLICE v PAPADOPOULOS
[2008] SASC 325

Full Court:      Doyle CJ, Anderson and Kelly JJ

1. DOYLE CJ:          I agree with the orders proposed by Kelly J and with her reasons.

2. ANDERSON J.     I agree with the orders proposed by Kelly J and with her reasons.

3. KELLY J:             The respondent pleaded guilty in the Adelaide Magistrates Court on 13 March 2008 to an offence of assault contrary to Section 20(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and an offence of assault causing harm contrary to Section 20(4) of the Act. The learned Magistrate imposed a sentence of four months’ imprisonment for each offence to be served cumulatively. After applying a discount for the plea of guilty the appellant was sentenced to a total period of seven months imprisonment. The Magistrate declined to suspend the sentence.

4. An appeal against sentence by the respondent to a judge of this Court was allowed and the sentence imposed by the Magistrate was suspended upon the respondent entering into a bond to be of good behaviour for three years.  The police have appealed to this Court against the order that the sentence be suspended.  Permission to appeal to this Court was granted on 21 August 2008. 

5. The grounds of appeal challenge the finding of the Judge of this Court that the Magistrate erred by failing to take into account the respondent’s favourable antecedents. In the alternative, if the appeal Judge was entitled to sentence afresh, the appellant contends that the re-sentencing process miscarried in that the appeal Judge failed to properly take into account the very serious circumstances of the offending, in particular the unprovoked nature of the violence proffered by the respondent, failed to give due weight to the criteria set out in Section 11(1)(a) of the Criminal Law (Sentencing) Act1988 (SA) (“the Sentencing Act”) and failed to give adequate reasons for his decision to suspend the sentence.

6. Before dealing with the arguments advanced on appeal it is appropriate to summarise the relevant circumstances of the respondent’s offending. 

7. At about 4.30am on Saturday 13 January 2007 the respondent, along with a group of friends attempted to enter the Palace Nightclub located in Hindley Street, Adelaide.  The victim, who was working as a security guard for the owner of the nightclub, was standing out the front of the nightclub opposite the door entrance.  He refused entry to the respondent and those in his company.  The respondent was refused entry on the basis of his membership of the Hell’s Angels motorcycle gang, a fact which was known to the victim. 

8. An exchange ensued between the respondent and the victim in which the respondent punched the victim to the right side of his face.  The victim was again punched several times but it was not possible to determine who was responsible out of the group for those latter punches.  After this the respondent pursued the victim and again punched him in the face.  The victim suffered a broken nose.  That conduct gave rise to the first count of assault causing harm. 

9. The offending which is the subject of the second count took place at about 10.00 pm on the following evening Sunday 14 January 2007.  The victim was again working at the Palace Nightclub, standing out the front as part of his duties as a security guard.  The respondent drove his car slowly past the nightclub towards West Terrace with his car window down.  With his right hand holding the steering wheel the respondent pointed his left hand at the victim making a gesture that imitated the act of shooting a pistol towards the victim.  The offending has had a serious effect on the victim and his family. 

10. The respondent was originally charged with offences of aggravated assault, but after negotiations pleaded guilty to the two basic offences of assault and assault causing harm. 

    Prosecution appeals against sentence imposed in the Magistrates Court

11. Although this is a prosecution appeal it comes after a successful appeal by the respondent to a single judge of this Court. 

12. The principles applicable to prosecution appeals against sentence in these circumstances were discussed in WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147. In that case, Duggan J at [44] held that the considerations relevant to prosecution appeals stated by the High Court in Everett v the Queen (1994) 181 CLR 296 apply in the case of prosecution appeals against a sentence imposed in the Magistrates Court, therefore intervention should be regarded as exceptional. However, justification for interference may be found in cases where there is demonstrated error and where it is necessary to avoid manifest inadequacy or inconsistency in sentencing.

13. In my view, the same considerations apply to the disposition of the issues which arise on this appeal. 

    The Judgment of the single Judge

14. The learned single Judge upheld the appeal against sentence from the Magistrate on the basis that the Magistrate erred in not suspending the term of imprisonment. The error in the opinion of the single Judge was to be found in the fact that the Magistrate did not appear to have counterbalanced the seriousness of the offending with the respondent’s personal circumstances which fell for consideration under the provisions of Section 10 of the Sentencing Act. In particular, the single Judge pointed to the fact that there was no reference by the Magistrate to the fact that the respondent had no relevant prior criminal history, or to the fact that he had a good working record. After referring to a frequently quoted passage from Dinsdale v R (2000) 202 CLR 321, the single Judge concluded as follows:

    Though there are instances where the deterrent purpose of the punishment takes priority over other factors (see R v Khem), the magistrate’s reasons for not suspending the sentence do not appear to counterbalance the seriousness of the offence with the appellant’s personal circumstances which fall for consideration pursuant to Section 10(1)(l) and (m) of the Sentencing Act. For those reasons I am of the view that the sentencing discretion has miscarried.

15. The relevant subsections referred to by the single Judge deal with considerations of character, antecedents, age, means, physical or mental condition and rehabilitation of the defendant.  The single Judge seems to have concluded that because the Magistrate did not specifically refer again to those considerations when he addressed the issue of suspension, that he overlooked those factors when determining whether or not there was good reason to suspend. 

16. In order to determine whether the single Judge’s conclusion can be supported it is necessary to examine the whole of the Magistrate’s reasons in the light of the relevant authorities dealing with the duty of magistrates and other judicial officers to give adequate reasons when sentencing.  Those duties have been the subject of comment from time to time by various Judges of this Court and by the Full Court. 

17. The Full Court in R v Becker (2005) 91 SASR 498 observed that a sentencing judge or magistrate is not required to deal with every matter which may be relevant to the final determination, nor is it necessary for a sentencing judicial officer to mention every topic referred to in s 10 of the Sentencing Act. It is sufficient if the remarks enable the appellate court to identify and understand the reasoning of the judge (or magistrate) so that it may properly perform its appellate duties. Simply because a sentencing magistrate or judge fails to mention a matter does not mean that it has necessarily been overlooked. This is especially true of sentencing magistrates whose task is often to make decisions on an ex tempore basis unlike appellate judges who have the opportunity to reflect and prepare considered reasons. 

18. In Badari v Police (2003) 227 LSJS 80 at 85 Lander J summarised the purpose of sentencing remarks and the magistrate’s corresponding duties as follows:

    Sentencing remarks are constructed and delivered primarily for the purpose of telling the convicted person why the particular sentence has been imposed.  The content of the remarks will depend upon a number of factors: the seriousness of the offence, whether the offender admitted the offence; whether he or she is contrite; whether he or she has co-operated with any relevant authority; the basis of fact upon which the sentence rests i.e. the circumstances of the offence; whether any other offences are to be taken into account; the personal circumstances of the offender including his or her antecedents; any questions of general or personal deterrence; the effect upon the community of the particular offence or class of offence; the prospects of the offender’s rehabilitation; any special matters which require mentioning; the sentence; and the reasons why that sentence has been imposed.

    Because a magistrate has to pass numerous sentences each day and because a magistrate is dealing with less serious offences, the sentencing remarks of a magistrate will ordinarily be far less fulsome than those of a Judge of the District Court or this Court.

    Magistrates have the responsibility of delivering summary justice.

    …

    Magistrates do not have the time that the superior courts have to spend on sentencing remarks.  Most of their sentences must be given ex tempore.  Therefore they do not have time to reflect on their remarks.  Often they will not mention matters in their remarks that if given time they would have mentioned.  Often they will deal with matters by a general statement.  For example, it would be common for magistrates to say that they had taken into account the personal circumstances of an offender without repeating those circumstances.

    …

    The sentencing remarks must also satisfy a secondary purpose.  In the ordinary course of events, they must contain sufficient detail so as to enable a court of appeal to determine whether there has been a proper exercise of the sentencing discretion or, on the other hand, whether the sentencing discretion has miscarried.

    There are many options available to a magistrate when sentencing an offender.  They are all contained in the Criminal Law Sentencing Act. A magistrate with a busy list might use all of the options over a relatively short period. 

    However, a magistrate does not, in his or her sentencing remarks, have to indicate all of the options which are available to him or her in sentencing a particular person: Napper v Samuels (1972) 4 SASR 63 per Bray CJ at 68; R v Ciccone (1974) 7 SASR 110.

    This Court could not expect busy magistrates to discuss all of the available options in sentencing any person.  This Court should assume, when considering an appeal against sentence from a magistrate that the magistrate is entirely familiar with the Criminal Law (Sentencing) Act and the options available to him or her in sentencing a convicted person.

19. I respectfully agree with those remarks.  It is with those considerations in mind that I have considered the adequacy of the Magistrate’s remarks in this matter.

    The Magistrate’s remarks

20. The Magistrate accurately summarised the relevant factual circumstances of the offence. In my view he correctly identified the aggravating features of the respondent’s offending and directed his mind to the relevant provisions of s 11(1)(a) of the Sentencing Act. He then referred to the relevant personal circumstances explicitly mentioning the fact that the respondent came before the court without a prior record of any substance and that the respondent was effectively a person without record and was previously of good character.

21. Although the Magistrate’s remarks were relatively brief, they did identify the critical considerations both with regard to the imposition of the custodial sentence and the decision not to suspend the sentence.  The Magistrate was faced with a very difficult decision.  The matters both for and against suspending the sentence were finely balanced in this case.

22. On the one hand, the Magistrate was required to give due weight to the objective seriousness of the offending, a requirement which is reinforced by the provisions of s 11 of the Sentencing Act.  The objective seriousness of the offending lay in the unprovoked nature of the attack upon the victim, whose employment required him to interact with the public and ensure that only appropriate persons gained entry to the night club.  The seriousness was compounded by the second threat of quite a sinister nature some 24 hours later. 

23. On the other hand there were some compelling circumstances in mitigation relating to the personal circumstances of the respondent which might have led to the exercise of the discretion to suspend. 

24. Obviously enough, the Magistrate must have formed the view that a suspended sentence would not act as a sufficient deterrent in all of the circumstances because in the end he determined that the objective seriousness of the offending called for a term of immediate imprisonment.  That was a conclusion which was open to him.  The fact that in the latter part of his remarks when dealing with the issue of suspension, he did not explicitly again refer to the respondent’s personal circumstances which had previously been mentioned does not constitute an error.  Nor do I consider the decision not to suspend the sentence to be indicative of some unexpressed error by the Magistrate.  On the facts of this case, that decision was open to him.

25. The learned single Judge gave only brief reasons for the exercise of his discretion to suspend in the process of re-sentencing the respondent.  The appellant contends that in re-sentencing the respondent, the single Judge also made a number of errors with the result that the re-sentencing process on appeal itself miscarried. 

26. The appellant identified what was said to be three specific errors. The first was the failure of the single judge to refer to the provisions of s 11 of the Sentencing Act at all. The next was his failure to consider the unprovoked nature of the violence proffered by the respondent and the fact that the single judge in determining that there was good reason to suspend primarily considered the respondent’s prospects of rehabilitation in isolation and without reference to all of the other matters relevant to the exercise of the discretion. Finally, it was contended that the single Judge’s reasons were inadequate. In the appellant’s submission, a proper consideration of all of these factors would have led to the conclusion that the sentence should not be suspended.

27. In my respectful view, there is some justification for the appellant’s criticism of the single Judge’s reasons on re-sentencing the respondent.  However, I do not consider it necessary to deal with those criticisms in any detail as, for the reasons already stated, I have concluded that it has not been demonstrated that the Magistrate made any error in sentencing the respondent at first instance.

28. The Magistrate was right to conclude that the respondent’s offending goes to the heart of the ability of law enforcement agencies to enforce the law.  He correctly identified that the gravamen of the offending lay not in the fact that the respondent was a “Hell’s Angel” but in the fact that the respondent, as a citizen of this community, had launched an unprovoked attack on a man whose duty was to control the entry of other people into the night club.  Therefore, he was in a quasi law enforcement role and as such, in my view, the Magistrate was quite right to conclude that a suspended sentence would not act as a sufficient deterrent either to the respondent or others. 

29. As Duggan J observed in WorkCover v Musolino, while acknowledging that there is an element of general deterrence in a suspended sentence, nevertheless it must be acknowledged that a suspended sentence is a significantly more lenient penalty than an immediate term of imprisonment.  The deterrent effect is reduced by suspending the sentence, although not eradicated entirely.

30. In my view, when considering suspension in this case, the Magistrate was correct to conclude that the requirements of deterrence outweighed considerations in favour of suspending the sentence.

31. In the light of these reasons, I have reached the conclusion that the single Judge erred in interfering with the sentence imposed by the Magistrate.  Having regard to the principles which apply in prosecution appeals against sentence, that conclusion in itself does not justify interference by this Court.  However, in the circumstances of this case, it would not be sufficient if this Court merely noted the error but declined to interfere with the sentence imposed by the single Judge.  In my respectful view, there was an error of principle in finding that the Magistrate’s reasons disclosed error.  That error of principle has resulted in a manifestly inadequate penalty.  In order to correct the error and to maintain adequate standards of punishment, I consider that this appeal should be allowed and the order made by the learned single Judge suspending the sentence be quashed.  I would restore the sentence of the Magistrate.