Police v Topia
[2017] SASC 119
•15 August 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v TOPIA
[2017] SASC 119
Judgment of The Honourable Justice Peek
15 August 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING STATISTICS, SCHEDULES, TARIFFS, COMPARISONS, ETC
Appeal against sentence for aggravated assault and aggravated assault causing harm.
The appellant committed the offences of aggravated assault and aggravated assault causing harm against two prison officers acting in the course of their duty, contrary to s 20(1) and s 20(4) of the Criminal Law Consolidation Act 1935 respectively. One of the prison officers sustained significant injuries which required multiple surgeries and resulted in permanent loss of movement in her left lower eyelid.
At the time of this offending, the appellant was in custody in relation to other violent offending (for which he was ultimately sentenced in the District Court).
A Magistrate sentenced the appellant to a single sentence of two years and six months imprisonment after discount for guilty plea, served cumulatively upon his District Court sentence. His non-parole period was extended by one year and eight months.
The appellant appealed on the sole ground that the sentence was manifestly excessive.
Held (granting an extension of time, dismissing the appeal):
(1) Having regard to the seriousness of the offending, the minimal mitigatory circumstances, the maximum penalty prescribed for the offences, and the standards of sentence customarily observed for similar offending, the sentence imposed was within the range open to the Magistrate.
(2) Comparisons with sentences passed for offending contrary to the now repealed s 40 (assault occasioning harm), such as Higgins v Fricker (1992) 63 A Crim R 473, are to be treated with caution in light of the substantial legislative changes which accompanied that repeal.
Criminal Law Consolidation Act 1935 ss 20, 23, 24, 40; Criminal Law (Sentencing) Act 1988 s 18A; Supreme Court Civil Rules 2006 s 281; Statutes Amendment and Repeal (Aggravated Offices) Act 2005 s 10, referred to.
The Queen v Morse (1979) 23 SASR 98, applied.
Police v Warren [2000] SASC 285; Hilli v The Queen (2010) 242 CLR 520; Higgins v Fricker (1992) 63 A Crim R 473; Coulter v The Queen (1988) 164 CLR 350; Markarian v The Queen (2005) 228 CLR 357; O'Neil v South Australian Police (Unreported, Supreme Court of South Australia, 16 May 1996); R v Davis (Unreported, Supreme Court of South Australia, 16 May 1996), discussed.
Crotty v Police [2008] SASC 308; Pick v Police [2013] SASC 184; Cole v Police [2015] SASC 83; R v Rowe [2015] SASCFC 124; Turner v Police [2016] SASC 91; House v The King (1936) 55 CLR 499, considered.
POLICE v TOPIA
[2017] SASC 119Magistrates Appeal
PEEK J. Appeal against sentence – aggravated assault and aggravated assault causing harm.
Introduction
On 10 January 2014, the appellant committed the offences of aggravated criminal trespass in a place of residence, causing serious harm with intent to cause harm, and aggravated assault causing harm. He was arrested on 11 January 2014, found guilty by jury verdict on 23 July 2015, and on 10 December 2015, Judge Tilmouth sentenced him to four years and six months imprisonment, with a three year non-parole period.
On 18 December 2014, while in custody in the above circumstances, the appellant committed the present offences of aggravated assault and aggravated assault causing harm contrary to ss 20(1) and 20(4) of the Criminal Law Consolidation Act 1935 (the Act) respectively. The aggravating factor was that the offences were committed against two prison officers acting in the course of their duty.
On 21 December 2016, the appellant was sentenced by a Magistrate, who imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of two years and nine months reduced on account of his guilty pleas to two years and six months imprisonment. The Magistrate ordered that the sentence be served cumulatively upon the sentence imposed in the District Court and that the non-parole period be extended by one year and eight months, to a total of four years and eight months.
The appellant appeals in relation to the Magistrate’s Court sentence only. He contends that both the head sentence and extended non-parole period imposed were manifestly excessive. The appeal is significantly out of time.
Extension of time
The appellant was sentenced on 21 December 2016, and his notice of appeal filed on 28 May 2017. The time within which he had to appeal pursuant to rule 281 of the Supreme Court (Civil) Rules 2006 expired some four and a half months prior to the filing of his appeal. The appellant relies upon his affidavit evidence and that of his solicitor which establishes that his appeal progressed as follows:
-The appellant was sentenced on 21 December 2016;
-On 12 January 2017, he telephoned his previous solicitor in relation to a potential appeal. He was advised that given the serious nature of the offending, and his criminal history, there were insufficient prospects of success;
-He decided he wanted to further investigate bringing an appeal, and requested a legal aid application form from the prison. He did not receive any response, and accordingly asked to see the duty solicitor from the Legal Services Commission;
-On 9 March 2017, he spoke with the duty solicitor visiting Yatala Labour Prison. On the same day, an application for legal assistance was lodged;
-On 17 March 2017, he was granted a limited grant of legal assistance in order to investigate the merits of the appeal;
-On 28 April 2017, upon the receipt of the victim impact statements, pre-sentence report and sentencing remarks of the Magistrate, the opinion of counsel as to the merits of the appeal was sought;
-On 8 May 2017, the opinion of counsel was received, and subsequently his solicitor began preparing the notice of appeal; and
-On 26 May 2017, legal aid was extended and the notice of appeal filed.
The principles to be applied when considering an application for an extension of time within which to appeal are well understood.[1] In Police v Warren, Gray J summarised the relevant considerations as follows:[2]
[1] See: Police v Warren [2000] SASC 285; Crotty v Police [2008] SASC 308, [42] (per Kelly J); Pick v Police [2013] SASC 184, [12] (per Kelly J); Cole v Police [2015] SASC 83, [15] (per Nicholson J); R v Rowe [2015] SASCFC 124, [131] (per Blue J); Turner v Police [2016] SASC 91, [5] (per Stanley J).
[2] [2000] SASC 285, [16]-[17].
The following rules guide the court in considering an application to extend time:
(1) The discretion exists for the sole purpose of doing justice between the parties.[3]
[3] Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257; Gallo v Dawson (1990) 93 ALR 479.
(2) Some material must be advanced upon which the court can exercise its discretion.[4]
[4] Ratnam v Cumarasamy (1964) 3 All ER 933, 935.
(3) There is an obligation to explain with frankness and candour the reason for delay.[5]
[5] Hall v The Nominal Defendant (1967-68)) 117 CLR 423 at 435.
(4) The longer the delay the more exceptional or substantial the explanation required.[6]
(5) If no sufficient grounds of appeal are disclosed an extension will not be granted.[7]
(6) The court is not obliged to consider the merits in detail.[8]
(7) The court will consider whether any substantial grounds exists for apprehending a miscarriage of justice.[9]
(8) Absent satisfactory explanation about delay an appellant is still entitled to an extension if otherwise there will be a miscarriage of justice.[10]
The above rules are subservient to the overriding principle that the court should grant of extension of time to avoid a miscarriage of justice. As Kirby J said in Jackamarra v Krakouer[11] at [66]:
Procedural discretions, such as those in question here, are typically expressed in very wide language. (Boomalli Ltd v Hake [1985] WAR 7 at 9.) In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. (In re Coles and Ravenshear [1907] 1 KB 1 at 4; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412.) This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances (Christie v Harvey and Hayward (1900) 2 WALR 146 at 148; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 947; [1985] 2 All ER 517 at 521; Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 167.)
... Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account.
[6] R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; R v Armstrong (1983-84) 35 SASR 356.
[7] R v Trotter (1979) 22 SASR 64.
[8] Jackamarra v Krakouer (1998-99) 195 CLR 516.
[9] Gikas v Police (1999) 202 LSJS 301, 306.
[10] Gikas v Police (1999) 202 LSJS 301, 306.
[11] (1998-99) 195 CLR 516, 539.
The respondent is not prejudiced by the delay and does not oppose the grant of an extension of time. I consider that in the circumstances, it is appropriate to grant an extension of time within which to appeal.
The circumstances of the offending
On 18 December 2014, the appellant was on remand at Adelaide Remand Centre and was directed by two prison officers, a male and a female, to return to his cell as he was loitering. While the appellant was physically inside the cell with the cell not yet locked, he violently ran at the cell door, pushing it open with considerable force.
The male prison officer (the victim of the aggravated assault), was standing behind the cell door at the time, and the door hit his foot, knee and face, forcing him backwards. The female prison officer (the victim of the aggravated assault causing harm), then stepped into the doorway. The appellant struck her in the face with his right clenched fist, causing her to stumble sharply backwards and fall to the ground. The appellant then hit the male victim with a closed clenched fist to the left side of his face. Throughout this altercation, the appellant yelled words on the theme of “you’re all fucking dogs, you’re all pieces of shit”.
The male victim did not suffer significant injury. The female victim, however, suffered quite substantial injury. The Magistrate found her to have been “very severely affected” by the actions of the appellant. She required stitches above her left eye, had a fractured nose and eye socket and soft tissue damage. While in hospital a haematoma grew around her left lower eyelid which required her to be admitted to intensive care, and which resulted in ongoing numbness to her lower eyelid and cheek. She required further surgery, which the Magistrate described as follows:
She went for further surgery in November 2015 and in December 2016 she reported that she had further surgery to repair the droop in her eyelid. She had her eyelid clamped in place for ten days, had to have her dressings changed every two or three days, had injections for another five months, and she has been told that she will never have 100% movement of the eyelid again. She has to use saline solution regularly and still suffers numbness to the left cheek.
As the Magistrate summarised, the victim also required psychological treatment as a result of the assault:
She saw a psychologist. She suffered from significant stress disorders and anxiety and she continued to work through post-trauma anxiety management with her psychologist.
She was living alone at the time. As a result of this she had trouble sleeping. She had nightmares and flashbacks and she even felt like a failure for failing to protect the other correctional officer, which is ironic given she was the one who was so seriously injured. She was also worried about whether she would be capable physically and mentally of resuming her employment.
The injuries had ongoing or permanent consequences for the victim and required multiple surgeries and ongoing treatment. They caused serious psychological distress, and she was unable to return to full duties for some 18 months.
The Magistrate’s approach to sentencing
After summarising the circumstances of the offending and the appellant’s prior convictions, the Magistrate stated:
It is important that the sentence I impose now operates firstly to punish you adequately for the offending, secondly to deter you from such offending, but thirdly – and this is a matter which assumes very great importance in this case – it has to operate to deter other people who are in your position from committing offences like this. Prisoners in custody have to be looked after by people. Those correctional officers are entitled to expect the protection of the law when people such as yourself decide to assault them. They are entitled to that protection. The way of the law providing that protection is to send a clear message to you, but not only you, a clear message to other people, by virtue of the sentence that such offending will not be tolerated and the penalty in this case is one which must be imposed with a predominant purpose of deterring other people from behaving in this sort of manner towards correctional officers.
Only a sentence of imprisonment could properly reflect the seriousness of the offending and the need for personal and general deterrence. It is appropriate that a sentence be imposed which is a single sentence pursuant to Section 18A of the Criminal Law Sentencing Act. By virtue of the nature of the harm caused to the prison officer, or bearing that in mind, this is an offence which sits well above the middle of the range of seriousness for such offending. It is towards the top of the range of seriousness for offending of the type to which you have pleaded guilty.
The Magistrate sentenced the appellant to a single sentence of two years and nine months imprisonment, reduced by ten per cent on account of the appellant’s guilty plea to two years and six months. As to the non-parole period, his Honour stated:
Your prospects for rehabilitation are uncertain at best. The non-parole period will be extended by a period of two-thirds of the extra head sentence, so it will be extended by 20 months, or one year and eight months.
A manifestly excessive sentence?
The appellant asserts that the sentence imposed by the Magistrate was manifestly excessive on the basis that it was “outside the range of sentences ordinarily imposed for similar offending.” In The Queen v Morse, King CJ indicated that the factors to be considered when addressing the question of manifest excess are:[12]
(i) the maximum sentence prescribed by law for the offence;
(ii) the standards of sentence customarily observed for offences of the kind in question;
(iii)the seriousness of the offence committed when compared to other offences of its kind; and
(iv) the personal circumstances of the offender.
[12] (1979) 23 SASR 98, 99.
I will address each of those matters, although in a slightly different order.
Standards of sentence customarily observed
In relation to the standards of sentence customarily observed for offences of the kind in question, the High Court has recently stated in Hilli v the Queen:[13]
[13] (2010) 242 CLR 520, 535-537 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
…
In Director of Public Prosecutions (Cth) v De La Rosa (58), Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said (60):
“Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”.
As the plurality said in Wong:
[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were. [Footnotes omitted]
In the present case, counsel for the appellant drew the Court’s attention to a number of sentences imposed in relation to assaults on prison officers, both at first instance and on appeal; I have had regard to them. However, there are a number of self-evident factors distinguishing them from the present case, including but not limited to: the offences charged, the number of counts, the number of victims, the seriousness of the offending vis-a-vis the harm caused, whether the harm occurred in the course of a struggle, whether there was any provocative behaviour by the victim, the relative criminal histories of the offenders, and the mitigating personal circumstances of the defendant in those cases such as histories of physical or sexual abuse, mental illness, ill health or a death in the family.
The 1992 Full Court decision of Higgins v Fricker
The appellant placed great emphasis on the 1992 Full Court decision of Higgins v Fricker.[14] The appellant there was serving a life sentence and pleaded guilty to the offence of assault occasioning actual bodily harm for which the maximum penalty was then five years imprisonment. The facts were as follows:[15]
On Sunday, 14th April 1991 the appellant assaulted a correctional services officer at G Division of the Prison. The officer and another officer were escorting the appellant to an exercise yard when he punched the officer in the left side of the face causing injuries. The appellant was then restrained by the two officers. In consequence of the assault the officer suffered a badly bruised left eye, laceration of the left eyebrow and a fracture of the upper left cheek bone requiring treatment in hospital. The lids of the eye remained closed for a time and the injuries caused considerable pain.
[14] (1992) 63 A Crim R 473.
[15] Ibid, 474 (Mullighan J).
The circumstances surrounding the offending were as follows:
The learned Special Magistrate accepted that the appellant perceived that the correctional services officer had it in for him and wished to fight him although he was not prepared to accept that such was, in fact, the case. The officer made some comment to the appellant some days before the assault which is said to have caused the appellant to have that impression. The appellant complained to the Ombudsman but that complaint was not resolved before the assault. The learned Special Magistrate found that the appellant decided to resolve the matter by assaulting the officer. The evidence in support of that conclusion is that the appellant was detained in G Division of the Prison and the officer worked in that division for some months prior to the assault. There were many altercations between the appellant and the officer. A few days before the assault the appellant said to the officer words to the effect that he did not think that he was worth $20,000. The suggestion is that this remark meant that the appellant was not going to assault the officer because he did not think he was worth it. Although the officer did not accept that he took it that way, he responded by saying to the appellant, “Don’t put your aspirations before your capability”. It is difficult to see how this evidence justifies the conclusion that the appellant perceived that the officer wanted to fight him. However, it was not suggested on this appeal that there should be a different basis for sentencing.
The Magistrate imposed a sentence of three months, which on a prosecution appeal to a single Judge, was increased to two years. The Full Court held that the sentence of the Magistrate had been manifestly inadequate, but that the sentence of the single Judge was manifestly excessive.[16] The Court resentenced the appellant to nine months imprisonment (after discount for guilty plea).
[16] Ibid, 481 (Mullighan J, with whom King CJ and Olsson J agreed).
Substantial changes in relevant legislation
Counsel for the present appellant submitted that, notwithstanding it was decided some 25 years ago, this case reflects the “present state of authority in South Australia in terms of sentences for assaults against prison officers”.[17] In my view that approach fails to take into account substantial changes in relevant legislation.
[17] T3.
In 1992 in the decision in Fricker, the offence under consideration was assault occasioning actual bodily harm contrary to the now repealed s 40 of the Act. Section 40 then provided that:
Assaults occasioning harm
40Any person convicted of assault occasioning actual bodily harm shall be liable to be imprisoned for a term not exceeding five years or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding eight years.
In 1988 in Coulter v The Queen,[18] the High Court had confirmed that there was no requirement of proof as to specific intent to cause actual bodily harm in s 40 offences. However, of present importance, persons who in fact did have a specific intent to inflict actual bodily harm were prosecuted for s 40 offences, just as were persons who had no such specific intent. It can therefore be appreciated that s 40 had to deal with a very broad spectrum of offences and offenders, from both a subjective and an objective point of view. Of course, general sentencing principles have always dictated that the more morally culpable the offender, the more significant the penalty should be, with the maximum penalty prescribed being reserved for particularly grave offending.[19]
[18] (1988) 164 CLR 350 (Mason CJ, Wilson & Brennan J).
[19] R v Kilic (2016) 339 ALR 229, 234 [17]-[18] (Bell, Gageler, Keane, Nettle and Gordon JJ). See also The Queen v Veen (No 2) (1988) 164 CLR 465; Director of Public Prosecutions (Cth) v De La Rosa (2010 79 NSWLR 1, [303]-[305]; R v Young (2016) 126 SASR 41, 62 [68].
However, commencing on 15 May 2006, the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 repealed s 40 and replaced it with a number of different offences. The present s 20(4) enacted an offence of assault causing harm for which the maximum penalty is three years (or four years for an aggravated offence). Of critical importance is the fact that at the same time, the legislature also enacted further offences of causing harm (s 24) and causing serious harm (s 23). Both of these offences have an element of specific intent, in that the accused must cause harm or serious harm, intending to cause such harm (or being reckless as to that fact).
Reflecting this higher degree of moral culpability associated with the specific intent element of the s 23 or s 24 offences, the maximum penalties for causing harm or serious harm are now significantly higher than that previously provided for in s 40. Thus, the maximum sentence for causing harm with intent (s 24) is ten years (or 13 years for an aggravated offence), and the maximum sentence for causing serious harm with intent (s 23) is 20 years (or 25 years for an aggravated offence).
The Attorney-General summarised the relevant changes in his second reading speech of the Statutes Amendment and Repeal (Aggravated Offences) Bill 2005 thus:[20]
[Model Criminal Code Officers Committee]’s main recommendation in its review of the non-fatal offences against the person was that these offences should be based on protection from harm and on the fault with which the harm is caused, not, as now, on how they are committed.
…
In the words of MCCOC, in Chapter 5 of the Model Criminal Code Report into non-fatal offences against the person,
Of all the criteria of guilt, the most fundamental in our criminal law is the fault with which the harm is done. It underlies most of the important and difficult central concepts of the criminal law—and is fundamental to the community’s understanding of guilt and punishment…
The structure of the Model Criminal Code, and of this Bill, makes it plain that a person who causes harm or serious harm intending to do so is more culpable than someone who causes the same degree of harm recklessly …
In this legislation, Parliament is showing the judges how seriously it views criminal conduct and what level of penalty should be considered for particular kinds of behaviour. In rationalising penalties, some penalties have increased and others, necessarily, have decreased. By focusing on criminal fault, the Bill removes some irrational distinctions in our offences against the person.
[20] House of Assembly Hansard, Parliamentary Debates, 2003-2004 (vol 1) (Wednesday 22 October 2003), p 585-588.
The relevance of a maximum penalty
In Markarian v The Queen, the plurality considered the relevance of a maximum penalty to be as follows:[21]
[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick.
[21] [2005] HCA 25; (2005) 228 CLR 357, [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
I consider that the lesser maximum penalties for s 20(4) offences as opposed to that previously provided by the repealed s 40 are reflective of the fact that s 23 and s 24 now deal with offences displaying a higher degree of moral culpability, leaving s 20(4) with less work to do than the repealed s 40. Put simply, the older cases such as Fricker are to be viewed very much in light of the fact that the previous maximum five year sentence provided for by the repealed s 40 was reserved for the most serious form of assaults occasioning harm: those in which serious harm was caused intentionally. The maximum penalty “yardstick” now applicable under s 20(4) applies to offending with a very much narrower spectrum of both subjective and objective seriousness than that previously applying to offences contrary to the repealed s 40; consequently, the older authorities decided in the context of a different pattern of legislation are of quite limited assistance and certainly do not establish the outer limits of the appropriate range of sentencing on the facts presently before the Court.
Consideration
It is well established that offences against members of the police force and correctional services officers are a serious class of offending requiring particular emphasis to be placed on general deterrence. In Higgins v Fricker, Mullighan J stated:[22]
The courts have long recognised the need to do what they can to protect persons who, by reason of their duties, are at risk of assault … Obviously there is a need to afford protection to correctional services officers. In my view there is no reason to regard the victim of this assault differently … The learned judge was justified in having regard to the need to deter other prisoners who are minded to behave in a similar manner.
[22] (1992) 63 A Crim R 473.
And in O’Neil v South Australian Police, Prior J stated:[23]
He, and others, must be alerted to the hope and expectation that peace should prevail in prisons, and that any attacks upon prison officers by prisoners will be treated seriously, with concern, and with the principles of general deterrence paramount to the exercise of sentencing discretions. The courts must do what they can to protect prison officers.
[23] (Unreported, Supreme Court of South Australia, 16 May 1996), 2-3.
And in R v Davis, Wood J stated:[24]
The maintenance of discipline within corrective institutions is a matter of very great importance. The potential for substantial damage to public property and for serious physical harm both to prison officers and other inmates, as a result of breaches of gaol discipline, is considerable, particularly in circumstances of unrest or dissatisfaction over matters of policy. It is a consequence of that fact that sentences for offenders involving attacks on prison officers in the execution of their duty must involve, as a significant component, both personal and general deterrence.
[24] (Unreported, New South Wales Court of Criminal Appeal, 4 February 1994), 3-4 (Gleeson CJ and Meagher JA agreed).
The seriousness of the offence(s) committed when compared to other offences of its kind
The facts of the cases referred to by counsel were generally less serious than the present offending. Here, as referred to above, the injuries caused to the female officer were very significant. Further, the assaults on both victims were quite unprovoked. I consider that the present conduct towards the female prison officer is towards the top of the range of seriousness for offences of aggravated assault causing harm under s 20(4).
The personal circumstances of the appellant
The appellant was born on 30 January 1988 and was 28 years old at sentencing. On 16 March 2009, when the appellant was 21 years old, he was convicted of two counts of basic assault, one count of aggravated assault causing harm, assault of police, resisting police, being unlawfully on premises, disorderly behaviour, possessing liquor in a public place, and three counts of failing to comply with a bail agreement. This offending was committed between June 2008 and April 2009 and the appellant was sentenced to 11 months imprisonment, partially suspended after serving four months imprisonment.
On 29 April 2013, the appellant was convicted for further offences committed in 2008: unlawfully on premises, and dishonestly taking property without consent. He was again sentenced to a term of imprisonment partially suspended, being a total head sentence of five months and two weeks, to be suspended after serving six weeks imprisonment.
The most recent offending (prior to the offending the subject of this appeal), occurred on 10 January 2014. On 10 December 2015, the appellant was sentenced in the District Court for these offences, being aggravated serious criminal trespass, causing serious harm to another, and aggravated assault causing harm. The appellant was sentenced to four years and six months imprisonment with a three year non-parole period.
The Magistrate summarised the appellant’s antecedents and concluded:
So that is your history in South Australia. It is a history involving several incidents of significant violence, culminating in the serious occasion of violent offending which led you to be presently imprisoned. As someone with that history, you are not entitled to the leniency that would be given to a first offender, and furthermore your offending history leads to significant concern about your prospects for rehabilitation. Violent offending has been a feature of your offending history and this continues that apparent tendency to offences of violence.
The appellant came from a family which was neither dysfunctional nor violent. Growing up, he and his three brothers were adequately cared for by their mother, who worked in retail, and their father, who worked as a labourer. As a child, the family relocated frequently, across various country towns in New South Wales. As an adolescent, he lived with various relatives in South Australia as a result of his parent’s separation, although he maintained contact with, and continued to visit, his parents; he continues to speak to them while in custody.
The appellant left school at year ten level and began living independently, although he has had limited employment since. His employment has consisted mainly of work as a farm hand, or casual labouring work, such as being a fruit picker. He has at times been homeless.
The appellant asserts that he has no “substance abuse issues”. However, the community corrections officer who prepared the appellant’s pre-sentence report questions this, noting that “information indicates that he was intoxicated at the time of the offending which led to his current incarceration [the District Court offending]; and the police apprehension reports indicate that Mr Topia has been intoxicated at the time of committing prior offences”.
For some seven years, the appellant has had a partner who resides in Alice Springs. Together they have a son who is now around two years of age and was born after the appellant was taken into custody.
I consider that the appellant’s previous South Australian prison sentences have clearly not provided sufficient personal deterrence for the appellant who continues to offend. Indeed, the present offending was committed while on remand and awaiting trial for other violent offending, highlighting a particularly flagrant disregard for the law.
The appellant asserts that the cause of the offending was due to him not taking his anti-depressant medication, coupled with his frustration at being in custody; however, no psychological evidence or proof of diagnosis was proffered. The only other explanation which the appellant could provide for his conduct was his “frustration at being in custody”; this was of course a product of his own wrongdoing.
All in all, I consider that there are minimal mitigatory matters in the appellant’s personal circumstances.
It is well established that an appellate court should not interfere with a discretionary finding of a Magistrate unless the appellant establishes that the Magistrate acted on some wrong sentencing principle, took into account an irrelevant matter, failed to have regard to a relevant matter, or that the sentence is so unreasonable that it cannot be regarded as a proper exercise of the sentencing discretion.[25] It is not enough that the appeal court, had it been in the position of the Magistrate, would have imposed a different sentence.
[25] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ) and Markarian v The Queen (2005) 228 CLR 357, 370.
I consider that it has not been established that either the sentence of two years and nine months imprisonment or the extension of the non-parole period by one year and eight months, was manifestly excessive. I conclude that the penalty was within the range open to the Magistrate.
The respondent’s application in relation to re-sentencing
I note that counsel for the respondent submitted that, if I considered that a re-sentencing were necessary, I should on that re-sentencing admit evidence of the appellant’s interstate criminal history on the basis that, before the Magistrate, the appellant in person had actively submitted that he had no interstate convictions and that the records were inaccurate and were the result of activities of a person or person with a similar name; and as a result, the Magistrate had proceeded by reference to the appellant’s South Australian convictions only. The respondent’s written submissions outline the relevant interstate offences as follows:
[29] The appellant’s interstate criminal history includes two convictions in the Northern Territory for “assaulting police and causing bodily harm” for which the appellant was imprisoned for 3 months (22/10/2010), and for 12 months (suspended after 8 months) (5/7/2010) respectively, a conviction for aggravated assault (15/2/2010) for which the appellant was imprisoned for 3 months, and a conviction for making a threat to kill for which the appellant was imprisoned for 1 month. It includes convictions for assaulting or obstructing a police officer in Queensland on 27/1/2012 and 2007. It includes multiple violent offences as a youth in New South Wales, including multiple offences of assaulting officers in the execution of their duty.
On the appeal, counsel for the appellant agreed that, on a re-sentencing, I could have regard to the interstate convictions which were now admitted to be accurate, with the exception of only one matter which could put to one side.
It is not necessary to pursue this matter further because I have concluded that, on the material before the Magistrate (which did not include the interstate convictions), it has not been established that the sentence was manifestly excessive and therefore a re-sentencing is not called for.
Disposition
The appeal is dismissed.
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