R v Manolakis - [2008] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MANOLAKIS
[2008] SASC 129
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Layton)
15 May 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Applicant found guilty by jury verdict of threatening to harm a Commonwealth public official, causing harm to a public official, and two offences of obstruction of a Commonwealth public official - trial Judge imposed one sentence for all offending - Judge remarked that he had regard to and gave full credit for the time the applicant spent in custody prior to sentencing, a period of nine months and 19 days - imposed a term of imprisonment of six months but released the applicant immediately on his agreeing to entering into a recognisance for a period of two years - terms of bond included: that he obey all lawful directions given to him by a Community Corrections Officer, and specifically any direction given to him by that Officer in relation to any psychological or psychiatric treatment and counselling; that he not communicate with a particular politician or his staff; and that he not communicate with any State or Federal politician without the express written permission of the Officer - whether Judge erred in imposing the additional sentence of six months' imprisonment - whether the terms of the bond were warranted.
Held: Permission to appeal should be granted and the appeal should be allowed - per Gray and Layton JJ: Judge erred in imposing the additional sentence of six months' imprisonment - no additional sentence of imprisonment should have been imposed - the terms of the bond were not warranted in three respects: the evidence before the Judge did not suggest that on-going psychiatric treatment or counselling was necessary; the condition that he not communicate with any State or Federal politician without the express written permission of the Community Corrections Officer was unwarranted; and there was no basis for the imposition of supervisory conditions by the Community Corrections Officer - the period of the bond, two years, was too long - applicant re-sentenced to a term of imprisonment of nine months and 19 days, backdated to commence on the date on which the applicant was taken into custody - applicant to be released without any further punishment.
Per White J: the sentence of six months' imprisonment should be set aside, and in lieu thereof the applicant sentenced to imprisonment for 10 weeks - upon the applicant entering into a recognizance containing certain conditions, he should be released forthwith.
Criminal Code Act 1995 (Cth) s 147.1, s 147.2 and s 149.1; Crimes Act 1914 (Cth) s 4B, s 16A, s 16E, s 17A and s 20; Criminal Law (Sentencing) Act 1988 (SA) s 6 and s 32; Criminal Law Consolidation Act 1935 (SA) s 269K, s 269ZA and s 352; Evidence Act 1929 (SA) s 45B; Commonwealth Electoral Act 1918 (Cth) s 283; Judiciary Act 1903 (Cth) s 68, referred to.
R v Mallah [2005] NSWSC 317; Barry v Samuels (1975) 10 SASR 376 at 377; Heatlie v Police (1993) 172 LSJS 94; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Limited v The Commonwealth (1992) 177 CLR 106, considered.

R v MANOLAKIS
[2008] SASC 129
Court of Criminal Appeal Gray, White and Layton JJ
GRAY and LAYTON JJ.

This is an application for permission to appeal against sentence.
The applicant, Anastasios Manolakis, was found guilty by jury verdict of four offences – threaten to harm a Commonwealth public official;[1] cause harm to a public official;[2] and two offences of obstruction of a Commonwealth public official.[3]
[1] Contrary to section 147.2(2) Criminal CodeAct 1995 (Cth) – maximum penalty two years' imprisonment.
[2] Contrary to section 147.1(1) Criminal CodeAct 1995 (Cth) – maximum penalty thirteen years' imprisonment. If dealt with summarily the maximum penalty is two years' imprisonment.
[3] Contrary to section 149.1(1) Criminal Code Act 1995 (Cth) – maximum penalty two years' imprisonment.
The trial Judge sentenced Mr Manolakis to the one sentence for all offending. He imposed a term of imprisonment of six months but released the applicant immediately on his agreeing to entering into a recognizance for a period of two years on the terms that he:
-be of good behaviour and obey all conditions of this order;
-be under the supervision of a Community Corrections Officer for two years and obey all lawful directions given to him by that officer;
-report ... to Correctional Services ... at Holden Hill;
-not communicate, directly or indirectly, with any politician, whether State or Federal, except with the express written permission of his Community Corrections Officer;
-not attend at, or be within 100 metres of, the electoral office of Senator Minchin at 36 Grenfell Street, Kent Town;
-not communicate, directly or indirectly, with Beverley Fay Browne-Baldock at Senator Minchin’s office or at any other place, nor approach or attempt to approach her;
-obey any direction given to him by his Community Corrections Officer in relation to any psychological or psychiatric treatment and counselling.
When sentencing, the Judge remarked that he had regard to and gave full credit for the time the applicant spent in custody prior to sentencing - a period of nine months and 19 days.
This case has an unusual aspect. The applicant, prior to being found guilty, refused to sign bail papers because he objected to the bail conditions which were in standard form. The applicant had spent nine months and 19 days in custody prior to being sentenced. This period was appropriately taken into account by the Judge upon the applicant being found guilty. The Judge, however, did not backdate the sentence of imprisonment, but imposed an additional six-month period of imprisonment to be suspended upon the applicant entering into a two-year bond. The outcome was in effect, a hybrid sentence of almost 16 months’ imprisonment with nine months and 19 days served in custody, and the remainder suspended.
The circumstances of the offending are set out in the reasons of White J. We respectfully adopt his account of those circumstances and only refer to them as necessary for an understanding of our reasons.
The first charge concerned an incident in which the applicant came to the electorate office of Senator Minchin at or about 8.30 am on 17 November 2005. He was in an upset and angry state, confronted a member of the Senator’s staff outside the office and made threats to the Senator. The Senator was not at his electorate office at the time.
The remaining charges arose out of an incident on 14 February 2006. The applicant deliberately rode his bicycle into a Federal agent who was attempting to execute a warrant for the applicant’s arrest. The applicant had failed to attend to answer his bail in respect of the first charge. The incident occurred on a suburban footpath.
The applicant, who was aged 49 years, had no criminal antecedents. He had suffered from a depressive illness for some years. At the time of sentencing psychiatric evidence established that his condition was in remission through the use of medication. The effect of the evidence was that his condition would stay in remission as long as he continued to use the prescribed medication.
It is relevant to record the terms of section 17A of the Crimes Act 1914 (Cth):
(1)A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2)Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:
(a) shall state the reasons for its decision that no other sentence is appropriate; and
(b) shall cause those reasons to be entered in the records of the court.
(3)The failure of a court to comply with the provisions of this section does not invalidate any sentence.
(4)This section applies subject to any contrary intention in the law creating the offence.
[emphasis added]
Bearing in mind the nature of the offending and the personal circumstances of the applicant, this legislative direction that imprisonment should not be imposed unless no other sentence is appropriate is significant.
The excessive nature of the sentence is illustrated by having regard to the fact that sentences of imprisonment in this State usually require a court to fix a non-parole period,[4] which pursuant to the Crimes Act similarly applies to federal offences. Section 16E provides:
(1)Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence.
(2)Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence:
(a) may be reduced by the period that the person has been in custody for the offence; or
(b) is to commence on the day on which the person was taken into custody for the offence;
the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence.
(3)Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non-parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned.
[4] Section 32 of the Criminal Law (Sentencing) Act 1988 (SA).
We note that a non‑parole period is not required if a suspended sentence of less than 12 months is imposed. This was the situation in the present case as a consequence of the way in which the sentence was structured. A non-parole period, being the minimum period of imprisonment required to be served by an offender, is commonly in the order of one half to two-thirds of the head sentence. Therefore in this case, bearing in mind the period of imprisonment served by the applicant, this would equate to the applicant having received a head sentence of somewhere between 13 to 20 months’ imprisonment. However, the Judge imposed a further six months’ imprisonment, which could be equated to the applicant having had a head sentence of between 19 to 26 months imposed with a non-parole period of approximately 10 months.
It is our view that having regard to the applicant’s long-standing depressive illness, his prior good record, and to the time spent in custody, no additional sentence of imprisonment should have been imposed.
Further, in our view the terms of the bond imposed by the Judge were not warranted in three respects. First, the evidence before the Judge did not suggest that on-going psychiatric treatment or counselling was necessary. It was established that the applicant needed to continue using prescribed medication. However, there was no suggestion that he would not do so. The requirement that he obey any direction given to him by a Community Corrections Officer in relation to psychological or psychiatric treatment or counselling was unwarranted. Secondly, the further requirement that he not communicate with any State or Federal politician without the express written permission of the Community Corrections Officer was also unwarranted. A condition that he not communicate with Senator Minchin or his office was, however, appropriate. Thirdly, in our view, there was no basis for the imposition of supervisory conditions by the Community Corrections Officer. Rather than being of assistance, the imposition of such a condition may, instead, have the reverse effect – a tendency to inflame, given the applicant’s psychiatric condition.
In our view the manifestly excessive imprisonment sentence was compounded by the applicant being required to enter into a suspended sentence bond for two years on the above conditions. This was inappropriate. The relevant offending occurred in November 2005. There is no suggestion that the applicant has approached any Commonwealth public official in an inappropriate way since that time. In these circumstances the period of the bond, by itself, was too long.
The applicant has had a salutary penalty as a result of his period of imprisonment. His submissions to this Court indicated that he found the experience very difficult. He highlighted that he had been held in high security. The applicant is an intelligent man. Although he has demonstrated obsessive behaviour with no apparent contrition for his offending, he is also aware of the penalties for any future offending and that any further attempt to inappropriately communicate with Ms Browne-Baldock or attend at Senator Minchin’s office is likely to result in further charges being laid against him.
In the circumstances the applicant should be granted leave to appeal and the appeal be allowed. The sentence imposed by the District Court should be set aside. This Court should re-sentence the applicant.
Re-sentencing
When re-sentencing, it is relevant to note the earlier reference to terms of section 17A – imprisonment is a sentence of last resort.
Having regard to the foregoing reasons, we would re-sentence the applicant. In doing so, full account should be given to the period of nine months and 19 days spent in custody. He should spend no further time in custody. He should not be subjected to any further good behaviour bond.
We would grant permission to the applicant to appeal and allow the appeal. We would set aside the sentence imposed by the District Court. We would re-sentence the applicant as follows:
-one penalty for all offending - a term of imprisonment of nine months and 19 days;
-the term of imprisonment be backdated to commence on the date on which the applicant was first taken into custody;
The intent of our order is that the applicant is to be released without any further punishment. The applicant has already served the entire sentence of nine months and 19 days.
WHITE J: The applicant seeks permission to appeal against a single sentence imposed for four contraventions of the Criminal Code (Cth) (the Code). Permission to appeal was refused by a single judge. The applicant renews his application before this Court. In accordance with usual practice, the Court heard submissions on the application as though they were submissions on the appeal.
On 18 July 2007 the applicant was found guilty by a jury of four offences. They were: making a threat to cause harm to a Commonwealth public official (Senator Minchin), contrary to s 147.2(2) of the Code; causing harm to a Commonwealth public officer (a member of the Australian Federal Police (AFP)), contrary to s 147.1(1) of the Code; resisting a Commonwealth public officer (a member of the AFP) in the performance of his functions, contrary to s 149.1(1) of the Code; and obstructing a Commonwealth public officer (a member of the AFP) in the performance of his function, contrary to s 149.1(1) of the Code.
The judge imposed a single sentence of imprisonment for six months. Then, acting under s 20(1)(b) of the Crimes Act 1914 (Cth), the judge ordered that the applicant be released from custody on the rising of the Court upon him entering into a recognizance in the sum of $1,000 requiring him, for a period of two years, to comply with seven stipulated conditions. Those conditions are that the applicant:
1.be of good behaviour, and obey all terms and conditions of the order;
2.be under the supervision of a Community Corrections Officer for a period of two years and obey all lawful directions given to him by the Community Corrections Officer to whom he is assigned for the purposes of supervision;
3.report, within two working days of signing the order, at the offices of the Department of Correctional Services at Holden Hill;
4.not communicate directly or indirectly with any politician, whether State or Federal, except with the express written permission of the Community Corrections Officer;
5.not attend at or be within 100 metres of the electoral office of Senator Nicholas Minchin, located at 36 Grenfell Street, Kent Town, SA;
6.not communicate directly or indirectly with Ms Browne-Baldock at Senator Minchin’s office or any other place and that he not approach or attempt to approach Ms Browne-Baldock; and
7.obey any direction given to him by the Community Corrections Officer in relation to psychological or psychiatric treatment or counselling.
The first three grounds in the notice of application for permission to appeal raise matters which are both irrelevant and scandalous. They do not require any further consideration. In the remaining grounds, the applicant complains of particular aspects of the judge’s sentence and sentencing remarks. In addition, although the grounds do not make this explicit, the applicant complains that the sentence was manifestly excessive.
The test applied by this Court on an application for permission to appeal is whether the grounds of the proposed appeal are reasonably arguable.
The Circumstances of the Offences
The circumstances of each offence are set out in some detail in my reasons for decision on the applicant’s appeal against his convictions.[5] That appeal was dismissed.
[5] R v Manolakis [2007] SASC 438.
Incident of 17 November 2005
Shortly after 8.30am on 17 November 2005, the applicant approached Ms Browne-Baldock, an employee in the electoral office of Senator Minchin. That office is located at the intersection of Grenfell Street and Fullarton Road, Kent Town. Ms Browne-Baldock was reversing her vehicle into Grenfell Street when the applicant approached her on foot and caught her attention. The applicant shouted at Ms Browne-Baldock through the open driver’s side window in a loud, angry manner, whilst pointing to the Senator’s office. He said:
Tell him he’s gone, he’s a fucking paedophile, tell him I’m going to get him.
There was some dispute at the trial as to whether the applicant had said “paedophile” or “paedophile lover” and also whether he had said “I’m going to get him” more than once. As described by Ms Browne-Baldock, there was a tenor of violence about the applicant’s behaviour.
In October and November 2005 the applicant had sent a number of emails to the office of Senator Minchin. Those emails made unsubstantiated paedophilia allegations against several members of Parliament and public officials. One email accused the Senator of being a “paedophile lover”. On 29 October 2005 the applicant had confronted Senator Minchin while in his car outside the office, making allegations of a similar kind concerning paedophilia.

Ms Browne-Baldock was aware of the emails and of the incident involving Senator Minchin on 29 October 2005. Although she had not previously met the applicant, she thought that he was the same person who had sent the emails and who had confronted the Senator. She became scared and concerned that the applicant would do physical harm to the Senator.
Aspects of the applicant’s behaviour on the morning of 17 November 2005 were observed by two witnesses. In particular, one witness saw the applicant reaching to the glass panel next to the door to the office of Senator Minchin and, at the same time, heard a loud banging. When she returned to the office, Ms Browne-Baldock saw that the glass panel was broken.
The statements made by the applicant to Ms Browne-Baldock in relation to Senator Minchin constituted the offence of threatening to cause harm to a Commonwealth public official. The maximum penalty for this offence is two years imprisonment or a fine of $13,200 or both.[6]
[6] The Code s 147.2(2); Crimes Act 1914 (Cth) s 4B(2).
The Incidents of 14 February 2006
The applicant was arrested after the incident of 17 November 2005 and granted bail. However, in breach of his bail agreement he failed to attend the Magistrates Court on 10 February 2006 and a warrant for his arrest was issued. The remaining three offences were committed during the execution of that warrant by two officers of the AFP.
The officers, Mr Beshara and Mr Mills, were driving along Payneham Road at Glynde in search of the applicant. They saw him riding a bicycle on the footpath. They stopped their vehicle and walked to the footpath, about 15 metres in front of the applicant. Mr Beshara displayed his police identification and shouted to the applicant “Stop, Police”. The officers gave evidence that the applicant then increased his speed and veered towards Mr Beshara, who then repeated his instruction of “Stop, Police”. The applicant did not stop. He raised his left arm and hand as he moved towards Mr Beshara and struck him on the shoulder. The bicycle itself collided with Mr Beshara’s leg and groin area. Mr Beshara was knocked to the ground and suffered some injuries.
This incident comprised the offence in Count 2 of causing harm to a Commonwealth public official, contrary to s 147.1 of the Code. The maximum penalty for this offence is imprisonment for 13 years or a fine of $85,800 or both.[7]
[7] The Code s 147.1(1); Crimes Act 1914 (Cth) s 4B(2).
The applicant resisted the attempts of Mr Mills to restrain him. First, Mr Mills attempted to restrain the applicant by holding his shoulders. The applicant, still astride his bicycle, aggressively swung about his arms and upper body. Mr Beshara stood up to assist Mr Mills. The applicant resisted both of their efforts. They wrestled the applicant to the ground, and against his resistance, arrested him. His conduct in relation to Mr Beshara constituted the offence of resistance of a Commonwealth public official in the performance of his official function, contrary to s 149.1(1) of the Code and his conduct in relation to Mr Mills the offence of obstruction of a Commonwealth public official, contrary to s 149.1(1) of the Code. The maximum penalty for each of these offences is imprisonment for two years or a fine of $13,200 or both.[8]
[8] The Code s 149.1(1); Crimes Act 1914 (Cth) s 4B(2).
The Applicant’s Personal Circumstances
The applicant is now 49 years of age. He has had a variety of employments in the past including, prior to 2002, a period as a member of the Public Service in South Australia. He is presently unemployed.
Since about the mid 1990s, the applicant has suffered from depression and has received psychiatric treatment, including medication, for that depression. He also suffers from episodic paranoid ideation, with those episodes occurring in association with exacerbations of his depression.
The applicant appears to have a fixation, to the point of an obsession, about paedophilia. This fixation appears to colour his view of anyone who he perceives to be not responding favourably to some claim, application or contention of fact made by him. The applicant tends to characterise persons in those situations as being either paedophiles, or paedophile lovers.
The applicant has no prior convictions at all.
Submissions Concerning the Psychiatric Evidence
The applicant made three complaints about the judge’s use of the psychiatric evidence. First, the applicant submitted that the judge should not have referred at all to a report of the psychiatrist Dr Raeside dated 21 February 2007. Dr Raeside provided that report to the court at a time when the court was considering ordering an investigation into the applicant’s fitness to stand trial.[9] Dr Raeside conducted one examination of the applicant and reported his opinion that the applicant was fit to stand trial. The prosecution invited the judge to consider the content of Dr Raeside’s report in sentencing. The applicant opposed any use at all of the report.
[9] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 269K.
Secondly, the applicant submitted that the judge had failed to have sufficient regard to the opinion of a second psychiatrist, Dr Davis, dated 17 October 2007. The applicant had been treated by Dr Davis between September 1999 and October 2001. In addition, Dr Davis reviewed the applicant on 11 October 2007 before providing his report.
The third submission was that the judge had been in error in concluding that the applicant required ongoing psychiatric care and counselling.
In relation to the psychiatric evidence, the judge said:
I have had regard to two psychiatric reports prepared about you. The first is from Dr Raeside and was prepared in February of 2007, relating to your fitness to plead. He thought you were fit. You suffered a depressive illness about 10 years ago, which has been treated and controlled with anti-depressant medication. Dr Raeside considered that you have an underlying paranoid personality disorder, or perhaps even an evolving paranoid schizophrenia, although I think Dr Davis was not prepared to go that far.
A much more recent report in mid-October 2007 was prepared by Dr Davis and refers to long-standing chronic depression. Dr Davis saw you over a period of about two years, until about October 2001. You have maintained your medication under the guidance of a medical practitioner. It seems your depressive order is in remission by virtue of the medication you are taking. Paranoid personality traits have come to the fore largely in association with exacerbations of depression. In essence, your depressive disorder remains in remission while you continue to take your medication.
You need ongoing psychiatric care and counselling. Your prospects of rehabilitation remain positive, provided you maintain medication. There is, in my view, some risk of re-offending, even with medication. Your pursuit of paranoid ideation during the trial and submissions on penalty show you still represent a risk, although a low risk, to various politicians and members of the judiciary.
Apart from one matter, the applicant did not indicate the basis of his objection to the judge’s use of Dr Raeside’s report. He did refer to s 269ZA of the CLCA. That section provides, amongst other things, that evidence of a finding made on an investigation into a defendant’s fitness to stand trial is not admissible against the defendant in criminal proceedings against that person. However, s 269ZA is of no application in the present circumstance. In the events which happened, the District Court did not conduct an investigation into the applicant’s fitness to stand trial presumably because, on receipt of Dr Raeside’s report, it decided that it was not necessary to do so. The District Court has not made any finding on an investigation into the applicant’s fitness to stand trial to which s 269ZA can apply.
The judge was entitled to have regard to Dr Raeside’s report. Section 16A(2)(m) of the Crimes Act required the judge to have regard to relevant matters known to the court concerning the character, antecedents, age, means and physical or mental condition of the applicant. In the same way, s 16A(2)(n) required the judge to have regard to the applicant’s prospects of rehabilitation. The contents of Dr Raeside’s report were relevant to both matters. Further, s 6 of the Criminal Law (Sentencing) Act 1988 (SA) provides that for the purpose of determining sentence the judge was not bound by the rules of evidence and could inform himself on matters relevant to the determination of sentence as he saw fit. Section 6 was applicable to the sentencing in the current case by reason of s 68 of the Judiciary Act 1903 (Cth).
In any event, although there were some differences between the opinions of Drs Raeside and Davis, these do not appear to have been significant. Neither psychiatrist considered that the applicant has an underlying psychotic disorder. Dr Raeside considered that the applicant’s history suggested an underlying paranoid personality disorder or perhaps even an evolving paranoid schizophrenia. He thought that the applicant’s depression was well controlled with the medication which he was taking. Dr Davis said that he concurred generally with Dr Raeside’s findings. He considered that the applicant has prominent paranoid personality traits which have come to the fore principally in association with exacerbations of depression but doubted a diagnosis of schizophrenia. Dr Davis too thought that the applicant’s depressive disorder was well controlled by the “maintenance anti-depressant medication”.
In these circumstances, I am not satisfied that the judge did err in making use of the report of Dr Raeside. Further, and in any event, I do not consider that the judge’s use of Dr Raeside’s report has resulted in any injustice to the applicant.
The applicant did not identify any feature of Dr Davis’ opinion which it was said the judge had failed to take sufficiently into account. As already noted, the judge referred specifically to Dr Davis’ report. I am not willing to conclude that he failed to give sufficient weight to any aspect of it, especially as the judge deferred his sentencing of the applicant in order that he might properly consider the report of Dr Davis.
I am nevertheless satisfied that there is some merit in the applicant’s submission that the judge erred in concluding that he needed “ongoing psychiatric care and counselling”. While the psychiatric evidence did disclose that the applicant required ongoing anti-depressant medication it did not suggest any need for ongoing counselling. The applicant has not had any psychiatric counselling since October 2001. Dr Raeside specifically said that further psychiatric review was not immediately indicated. Dr Davis too thought that the applicant was managing reasonably well from a psychiatric perspective.
It is likely that the judge’s belief that the applicant did require ongoing psychiatric care and counselling explains the seventh condition of the recognizance which he imposed.
Submissions Concerning the Sentence of Imprisonment
The applicant contended that the sentence of six months imprisonment imposed by the judge was too severe. As he had spent nine months and 19 days in custody before his trial, the effective total sentence of imprisonment was 15 months and 19 days. A sentence of that magnitude was, he submitted, inappropriate for the criminality involved in his behaviour, especially having regard to his good record and other material indicating that he was not by nature a violent person.
The applicant was remanded in custody for the period from 31 May 2006 to 14 July 2006. On the latter date he was granted bail on conditions which were relatively straightforward, namely, he was not to leave the State,[10] he was to obtain one guarantee in the sum of $100 and he was to reside at a specified address (being the address at which he had been residing at the time of his arrest). However, the applicant said that he did not wish to have bail and refused to sign the bail papers. He maintained that attitude until 19 March 2007. Although the period in custody between 14 July 2006 and 19 March 2007 was seemingly self-imposed, the sentencing judge said that he took into account the whole of the applicant’s time in custody. In my opinion, that was an appropriate course.
[10] Bail Act 1985 (SA) s11(6).
The offences committed by the applicant were serious. The incident of 17 November 2005 was unprovoked. By its very nature it is easy to understand the alarm and fear which it caused in Ms Browne-Baldock. Her Victim Impact Statement reveals the continuing fear and apprehension which she experiences. As was said by Wood CJ in R v Mallah,[11] threats directed to the well-being of Commonwealth public servants and officials need to be regarded seriously. It cannot be known whether such threats are likely to be carried out and they can require the diversion of considerable resources to protect against the possibility that they will be.
[11] [2005] NSWSC 317 at [78]-[79].
Similarly, assaults on police officers are to be regarded seriously.
They have their duty to do and it is a duty difficult and distasteful on many occasions and it is not a duty which is to be made more difficult by unprovoked assaults.[12]
In Heatlie v Police[13] Mullighan J said:
Quite unexpectedly they may be faced with sudden danger and the courts must do what they can to protect police officers in the execution of their duty by imposing penalties which will deter those who are minded to attack them.[14]
[12] Barry v Samuels (1975) 10 SASR 376 at 377.
[13] (1993) 172 LSJS 94.
[14] Ibid at 95.
The assault on Mr Beshara has had ongoing effects. He was still receiving treatment for the injury to his shoulder some 18 months after the commission of the offence.
The incidents involving the police officers on 14 February 2006 were aggravated by the fact that they were committed while the applicant was on bail in respect of the offence committed on 17 November 2005. I accept however that they are far from being the most serious offences of their type. The assault on Mr Beshara seems to have been the result of a spur of the moment decision and not pre-meditated. However, that is probably true of the majority of offences of this type.
The applicant was not entitled to any reduction on account of guilty pleas or contrition. He pleaded not guilty and even after the guilty verdicts he has not expressed any regret for his conduct or for the effects which his conduct has had on his victims.
The judge referred to all of the above matters. He considered that there was a risk of the applicant re-offending. He said that a “short” additional term of imprisonment was appropriate.
Despite all the considerations to which reference has been made, a sentence which is equivalent to imprisonment for nearly 16 months is, in my view, severe. That is especially so given that the applicant has already served some nine and a half months of that period and taking account of the applicant’s previous good character. I recognise the advantage which the sentencing judge had in observing and listening to the applicant during his trial and during the sentencing process. That is not an advantage possessed by this Court.
This Court should not interfere with a sentence unless it is satisfied that it is outside the range of reasonable sentencing discretion. With some hesitation I am satisfied that the sentence of six months in addition to the period of nine and a half months already served should be regarded as so severe that this Court should intervene. In my opinion, imprisonment for a total period of 12 months would be appropriate in this case as a single sentence. As the applicant has already served nine months and 19 days, I would quash the sentence of six months imposed by the judge and instead impose a sentence of imprisonment for 10 weeks.
The Condition Concerning Communication with Politicians
As has been seen, the judge imposed a condition that the applicant is not to communicate directly or indirectly with any politician, whether State or Federal, without the express written permission of his Community Corrections Officer. This means that without the permission of a person who is a public servant, the applicant may not communicate in any way at all with a politician. Depending upon the reach of the expression “politician” the ability of the applicant to communicate with any elected representative at Federal, State or Local Government level and with any persons seeking election to a position in the Australian or State Parliaments or at Local Government level is restricted.
It is a significant matter to preclude or limit a citizen’s access to his or her parliamentary representatives. Australia is a representative democracy. It is a feature of such a democracy that those represented have access to their representatives, and the ability to discuss matters of public and political significance with them. In Nationwide News Pty Ltd v Wills,[15] Deane and Toohey JJ said:
Moreover, the doctrine of representative government which the Constitution incorporates is not concerned merely with electoral processes. As has been said, the central thesis of the doctrine is that the powers of government belong to, and are derived from, the governed, that is to say, the people of the Commonwealth. The repositories of governmental power under the Constitution hold them as representatives of the people under a relationship, between representatives and represented, which is a continuing one. The doctrine presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf.[16]
[15] [1992] HCA 46; (1992) 177 CLR 1.
[16] Ibid at [18]; 72.
In the same case, Brennan J articulated the implied constitutional limitation on restriction of the right of freedom on communication concerning governmental matters as follows:
[T]he Constitution prohibits any legislative or executive infringement of the freedom to discuss governments and governmental institutions and political matters except to the extent necessary to protect other legitimate interests and, in any event, not to an extent which substantially impairs the capacity of, or opportunity for, the Australian people to form the political judgments required for the exercise of their constitutional functions.[17]
[17] Ibid at [21]; 50-1.
In Australian Capital Television Pty Limited v The Commonwealth[18] a decision delivered on the same day as Nationwide News, Mason CJ said:
Indispensable to that accountability and that responsibility [of elected members of the Australian Parliament] is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action when none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.[19]
Of course, the rights to which the High Court referred in Nationwide News and in Australian Capital Television are not absolute. Deane and Toohey JJ in Nationwide News contemplated expressly that a law prohibiting criminal conduct might readily be seen not to infringe the implication of freedom of political discussion.[20]
[18] [1992] HCA 45; (1992) 177 CLR 106.
[19] Ibid at [38]; 138-39.
[20] Nationwide News Pty Ltd v Wills [1992] HCA 46 at [23]; (1992) 177 CLR 1 at 77.

It is not clear whether the sentencing judge adverted to these considerations when deciding to impose condition No 4. Given the effect of the applicant’s conduct on Ms Browne-Baldock, as disclosed by her Victim Impact Statement, it is quite understandable that the judge imposed, as a term of the recognizance, the conditions that the applicant not attend within 100 metres of the electoral office of Senator Minchin at Kent Town and not communicate directly or indirectly with Ms Browne-Baldock at all. However, in my opinion, the applicant’s conduct did not require the fetter on his right of access to other politicians which the judge imposed. It is a major limitation on the applicant’s exercise of his democratic right that he should be able to communicate with a politician only with the permission of a member of the Public Service. In my opinion, that condition should be deleted.
Summary
The conclusions above make it unnecessary to consider the remaining submissions of the applicant. My conclusion is that permission to appeal should be granted and the sentence of the judge, including the recognizance release order, be set aside. In lieu thereof, I would impose a sentence of imprisonment of 10 weeks. Pursuant to s 20(1)(b) of the Crimes Act I would then order that the applicant be released upon his entry into a recognizance in the sum of $1,000 for a period of 12 months containing the following terms:
1.that the applicant be of good behaviour and obey all terms and conditions of the recognizance;
2.that the applicant be under the supervision of a Community Corrections Officer for a period of 12 months and obey all lawful directions given to him by the Community Corrections Officer to whom he is assigned for the purposes of supervision;
3.that the applicant report, within two working days of signing the recognizance, at the office of the Department of Correctional Services at 8 Gaelic Avenue, Holden Hill, SA 5088;
4.that for a period of 12 months the applicant not attend at or be within 100 metres of the electoral office of Senator Nicholas Minchin located at 36 Grenfell Street, Kent Town, South Australia;
5.the applicant not communicate directly or indirectly with Beverley Faye Browne-Baldock at Senator Minchin’s office or any other place nor is he to approach or attempt to approach Ms Browne-Baldock.