Police v Wilson No. Scgrg-98-871 Judgment No. S6812

POLICE v WILSON
[1998] SASC 6812

Magistrates Appeals
Bleby J

This is a prosecution appeal against sentence. Before I deal with the sentence and the appeal against it, is necessary to recite some relevant background.
On 12 February 1998 the respondent pleaded guilty in the Magistrates Court, sitting at Coober Pedy, to charges of common assault and breaching a restraining order. The victim of that assault was the respondent’s wife, Alison Cullinan. The restraining order which the respondent breached was framed in terms which prevented him from ‘assaulting or threatening to assault’ his wife.
The respondent was sentenced on that occasion to three months imprisonment in respect of those offences, but the sentence was suspended upon the respondent entering into a bond in the amount of $100 to be of good behaviour for a period of eighteen months. One of the conditions of the bond was that he perform one hundred hours of community service within twelve months.
On the night of 1 May 1988 the respondent and his wife were drinking at the Marla Hotel. Upon returning to their home, which is located in Indulkana, they continued to drink having been supplied with alcohol by a group of people who had arrived from Coober Pedy. A little later the respondent became angry with his wife. This was apparently due to the fact that he believed that his wife had been unfaithful to him during a previous period of imprisonment which he had served in Port Augusta. This anger eventually found expression in the respondent hitting his wife repeatedly with a nulla-nulla over many parts of her body, as a result of which she sustained two black eyes, a laceration under one of her eyes, bruising to her upper left arm, a swollen right elbow, swollen right ankle and lacerations on her right shin. Both of her arms were covered in blood and she required hospitalisation.
That episode resulted in the respondent being charged on information with assault occasioning actual bodily harm contrary to s40 of the Criminal Law Consolidation Act 1935, and a further charge of, again, failing to comply with the same restraining order in respect of his wife. Application was also made pursuant to s57 of the Criminal Law (Sentencing) Act 1988 to enforce the bond which the respondent had entered into on 12 February 1998.
The respondent pleaded guilty to both charges and admitted the breach. He was sentenced in respect of all matters on 16 June 1998, and it is in respect of that sentence that this appeal is now brought.
In mitigation before the magistrate it was put that the respondent’s offending was principally alcohol induced and that he was remorseful for what had occurred. The respondent is a thirty-five year old tribal Aboriginal man who comes from the remote community of Indulkana on the Pitjantjatjara lands. A pre-sentence report prepared for the benefit of the magistrate stated that he had a long history of alcohol consumption, and that that appeared to have been a significant contributor to his offending behaviour. He is married to the victim of the offences and between them they have had four children. He appears, by the report, to be committed to the relationship but acknowledges that it becomes strained and volatile when alcohol is consumed.
Prior to being taken into custody in respect of these offences he was working as a mechanic’s assistant at Indulkana, and a reference provided by his employer was before the magistrate which spoke highly of his skills in that field and of the contribution that he had made to the Indulkana community.
He had five previous convictions for common assault or assault occasioning actual bodily harm and had had a range of sentences imposed from suspended sentences involving bonds to immediate custodial sentences.
The pre-sentence report recommended that if the court was minded to impose community based service, it might wish to consider supervision and counselling on issues particularly related to anger management, problem solving, personal relationships, offending behaviour, support and guidance.
When it came to imposing sentences, the magistrate, in relation to the breach of the bond, revoked the suspension of the sentence of three months which had been imposed on 12 February 1998. By virtue of s58 of the Criminal Law (Sentencing) Act he really had no choice to do otherwise. He then ordered that that sentence be reduced to one month and fifteen days backdated to commence on 2 May 1998. That period happened to coincide with the total period that the respondent had been in custody immediately prior to sentence.
In relation to the offences which occurred on 1 May, the magistrate imposed a single penalty of four months imprisonment, which he suspended upon the respondent entering into a bond to be of good behaviour in the amount of $150. The period of the bond was 18 months. The bond was entered into on that day. It did not, however, contain any conditions relating to the topics suggested in the pre-sentence report.
The maximum penalty for an offence of assault occasioning actual bodily harm, in the circumstances of this case, was imprisonment for five years. The maximum penalty for contravention of a restraining order is a division five imprisonment, being a term of imprisonment of two years. As to the orders that the court may make on breach of a bond, s58(4) of the Criminal Law (Sentencing) Act provides:
“(4) Where a court revokes the suspension of a sentence of imprisonment, the court -
(a).... may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(c).... may direct that a suspended sentence be cumulative upon any other sentence or sentences of imprisonment then being served or to be served by the probationer”.
It will be noted that the only justification for the magistrate reducing the previously suspended sentence is if there are special circumstances justifying him in so doing.
The appellant appeals against the sentence imposed on the ground first, that the magistrate erred in finding that there were special circumstances to reduce the suspended sentence of imprisonment, which he revoked as a result of the conviction which he recorded on 16 June; secondly, that the sentence imposed for the offence of 1 May, that is the four months suspended sentence, was a manifestly inadequate term, in that it failed to maintain adequate punishment; thirdly, that the magistrate erred in suspending that sentence of imprisonment.
In relation to the first of those grounds, namely the question of “special circumstances”, it seems that the magistrate did not even address his mind to the question of whether there were special circumstances.
The nearest he came to doing so in his sentencing remarks was in the following passage. When he was speaking of the offence which had been committed he said:
“It is a clear breach of the bond and so I revoke the suspension of the suspended sentence. I reduce the period to be served to one month and fifteen days as from 2 May 1998 and I will give the defendant another chance. I note his wife is prepared to take him back but this will have to be his last chance.”
The remark that “the respondent's wife was prepared to take him back” does not seem to have any foundation from any of the submissions that were made to the magistrate on the question of penalty. All that was submitted on his behalf, by his counsel, was that his wife had been visiting him since he had been in gaol, and indeed that was consistent with what the respondent had told the author of the pre-sentence report. That report, however, also noted that the respondent’s wife had recommended that the respondent should return to Uluru with his family. The respondent’s wife was still at Indulkana.
There certainly appears to be no express indication, anywhere in the material that was before the magistrate, to indicate that the respondent’s wife was prepared to take him back as suggested by the magistrate.
The significance of “special circumstances” was referred to by King CJ in The Queen v Buckman (1988) 47 SASR 303. The former Chief Justice was speaking of subsections (5) and (6) of s9 of the Offenders Probation Act 1913, which, for present purposes, are replicated in subsections (3) and (4) of s58 of the Criminal Law (Sentencing) Act. In relation to those provisions the former Chief Justice said this:
“It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction must therefore be such as render the sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6) exists to enable the probative court to avoid the injustice of activating the sentence the length of which has been rendered oppressive or inappropriate by such circumstances of a special nature.”
It seems to me that the material before the magistrate showed that nothing indeed had changed to render the circumstances of the original suspended sentence inappropriate. There certainly seemed to be nothing that could be described as “special circumstances”, and if there were circumstances that had changed after the date of imposing the sentence in February 1988 it behoved the respondent to place that material before the magistrate.
The offences for which he was convicted on this occasion, namely assault occasioning actual bodily harm and failing to comply with the restraining order were very similar, if not identical to and involved the very same victim of the offences for which he had been sentenced in February 1998. However, on this occasion, it appears to have been a more severe offence than the common assault for which the respondent had received the suspended sentence, and the offence was in quite obvious defiance of the restraining order which had been made to prevent the very conduct which in fact occurred. Furthermore, the offence committed involved a serious breach of the bond which the respondent had entered into resulting in the revocation of the suspension of the earlier sentence itself.
Indeed there is an inference that may be drawn from what the magistrate did and his failure to comment on whether or not circumstances were “special circumstances” and his order reducing the sentence to coincide with the period of imprisonment already spent prior to the sentencing date to suggest that this may have been a device to avoid the operation of s38 subs(2) of the Criminal Law (Sentencing) Act and to enable the sentence for the assault occasioning actual bodily harm to be suspended where otherwise it could not be under s38 sub-s(2).
That subsection reads:
“(2).. A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term being served, or about to be served, by the defendant.”
I am therefore satisfied that the magistrate failed to act in accordance with the requirements of the Criminal Law (Sentencing) Act in reducing the previous sentence. It is not in the public interest that the requirements of the law of sentencing not be observed, and although this is a prosecution appeal, the circumstances do require, in my opinion, intervention by this court to ensure that the law is properly carried out.
It was argued that the prosecutor’s silence may have induced the magistrate to do what he did. However, I disagree with that submission. The prosecutor was specifically not called on by the magistrate. There had been expressed, in the sentencing submissions put on behalf of the respondent, nothing which suggested that there were special circumstances which required an answer by the prosecutor. In the circumstances it does not appear to me that the prosecutor has expressed positive neutrality on the possibility of the reduction of the sentence which was actually imposed.
It follows that, in my opinion, the appeal must be allowed for the purpose of setting aside the reduction of the original suspended sentence of three months upon the breach of the bond. The magistrate, in my opinion, should have ordered that that sentence be served as from 2 May 1998. It will now have to be served from a later time, probably today. That means that the original sentence, in relation to the assault occasioning actual bodily harm, should have been served cumulatively upon the previous sentence which was then required to be served by the respondent, and s38(2) of the Criminal Law (Sentencing) Act required that it could not be suspended.
There were indeed, in my opinion, other strong factors militating against the suspension of the sentence for that offence. It was a serious offence of assault occasioning actual bodily harm. The respondent used a physical weapon with which to assault his victim. It may be said that the assault appears to have been vicious. The effects on the victim were not insignificant. The victim required hospitalisation and sustained some quite serious injuries. The respondent’s history of offences of violence and alcohol abuse did not assist him in any way at all and I have already referred, in summary form, to those antecedents and the sentences to which he had been subjected.
In my opinion the offences did call for a sentence that reflected both personal and general deterrence, particularly as they were committed only a relatively short time after the respondent had received a suspended sentence and had been placed on a good behaviour bond for almost identical offences against the same victim. There was, in my opinion, no good reason to suspend the sentence under s38(1) of the Criminal Law (Sentencing) Act, and in the circumstances it could not properly have been done once the original sentence was required to be served. I, therefore, have no alternative but to revoke the suspension.
I do not propose to interfere with the overall period of four months imprisonment which was determined by the magistrate. I might have imposed a heavier sentence. That is not relevant. The sentence he imposed may be said by some to be light, but I cannot find sufficient error to justify increasing the sentence particularly on an appeal by the prosecution. However, as a period of custody has already been served, it must be brought into account under s30(2) of the Criminal Law Sentencing Act and the sentence must now be reduced to make some allowance for that.
I therefore propose that the following orders should be made:

(1)... Appeal allowed.

Set aside the order reducing the period of imprisonment to be served on the revocation of the suspended sentence imposed on the appellant on 12 February 1998, and direct that that sentence of three months imprisonment be served as from today.
Set aside the order for imprisonment of four months and the order suspending that sentence imposed by the Magistrates Court on 16 June 1998, and in lieu thereof I direct that the appellant serve a period of two months and fifteen days imprisonment, to commence on the expiry of the sentence referred to in par2 of this order.
Before I formally impose or make those orders, do counsel have any submission to make as to their form, arithmetic, or any other matters.

MR MUSCAT:  No.
MR KELLY:  No.
HIS HONOUR:  Very well, the orders will be in terms which I have just dictated.

[1998] SASC 6812

12 August 1998