R v Weetra

[2004] SASC 33

L v POLICE

[2004] SASC 33

Magistrates Appeal

GRAY J

Introduction

1. This is an appeal against sentence.

2. The appellant was charged with assault contrary to section 39(1) of the Criminal Law Consolidation Act 1935 (SA).

3. On 12 November 2003 the appellant pleaded guilty in the Whyalla Magistrates Court sitting as the Youth Court.  The magistrate recorded a conviction and imposed a term of imprisonment of ten days suspended on the appellant agreeing to enter into an obligation.

4. On the evening of 23 December 2001 a domestic argument broke out between the appellant and her de facto partner.  Both had been drinking.  In the course of the argument the appellant’s de facto partner grabbed her and threw her against a television set.  She sustained injury.  She was bleeding from her head.  The appellant reported the incident to the police.  Her de facto left the house.

5. Some time later, the appellant walked alone to the Port Augusta Hospital to seek medical treatment for her injuries.  She was asked to wait in the waiting room of the Accident and Emergency ward.  She was affected by alcohol as a result of her earlier drinking.  She was extremely upset and disturbed about the violent treatment she had received from her de facto.  She was anxious to receive treatment.  She believed that people were making fun of her as she was waiting. It was against this background that the offence occurred.

6. A nurse called her into another room for treatment.  However, the nurse left to attend to an urgent matter.  After some minutes the nurse returned to see the appellant leaving and walking towards the waiting room.  The appellant was yelling obscenities towards staff.  The nurse went to the waiting room to call the next patient.  The appellant then stepped in front of the nurse waving a safety pin in her hand and stated ‘I’m going to stab you with this you bitch’.  The nurse grabbed the appellant’s wrist and took the pin from her.  The appellant then backed away but continued to yell abuse.  The police were called and arrived shortly thereafter.  The nurse was uninjured.

   Issues on Appeal

7. On appeal it was said that the magistrate had made errors of fact and law and that the penalty imposed was manifestly excessive.

   Errors of Fact

8. When sentencing the magistrate briefly summarised the circumstances of the offence and remarked:

   You were an out-patient and under the influence of alcohol. A nurse was attending to her duties in priority order and you became frustrated and produced a safety pin. You thereupon tried to stab her but no injury occurred, as she was able to hold your arm so that nothing further could occur.

9. This brief statement discloses a serious misapprehension of fact.  The appellant had produced a safety pin and made a threat, but there had been no attempt to stab the nurse.  It was the appellant’s case that she had no intention to stab or otherwise injure the nurse.

10. It was further submitted that the magistrate erred in his treatment of the appellant’s intoxication.  The magistrate concluded that the appellant’s intoxication provided no excuse for the appellant’s offending.  However, the appellant was only 17 years of age at the time.  She was without any substantial prior experience of the effects of alcohol.  In these circumstances, her intoxication provides an explanation for her conduct and also has the capacity to be a factor in mitigation.[1]

    [1] R v Proom (2003) 85 SASR 120 at 126-131

11. Counsel for the Crown on appeal accepted that there had been a material misapprehension of fact.  It was also accepted that in the particular circumstances the appellant’s intoxication explained her conduct and was a mitigatory factor.

    Young Offenders Act 1993 (SA)

12. It was submitted by counsel for the appellant that the magistrate had made a number of errors of law arising from a misunderstanding or a misapplication of the relevant provisions of the Young Offenders Act 1993 (SA).

13. As earlier observed, a sentence of imprisonment for 10 days was imposed. The magistrate had no power to imprison the appellant. Section 23(1) of the Young Offenders Act provides:

    Subject to subsection (6) the Court cannot sentence a youth to imprisonment[2].

    It was open to the magistrate to impose an order for detention.[3]  The magistrate’s requirement that the appellant enter into an obligation suggests that the sentence of imprisonment was simply a mistake and that the magistrate intended to order detention.  However, the sentence of imprisonment was beyond power.[4]

    [2]  In the present case section 23(6) had no application.

    [3] Young Offenders Act 1993 (SA) s23(2)

    [4] Young Offenders Act 1993 (SA) s23(1)

14. The magistrate did not appear to have regard to the provisions of section 3 of the Young Offenders Act[5]  which provides:

    The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.

    There follow a number of sub-sections to section 3 providing support to the primary object of the Act. Matters of importance include the maintaining, preserving and strengthening of family relationships.[6]  Section 23(4) reinforces these general objects by providing that:

    A sentence of detention must not be imposed for an offence unless the Court is satisfied that, because of the gravity of the circumstances of the offence, or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.

    [5] R v Police (2002) 224 LSJS 210, RJB v Police [2000] SASC 209, AJK v Police (2002) 135 A Crim R 1. KBS v Police (2001) 212 LSJS 429

    [6] Young Offenders Act 1993 (SA) s3(1)(3)(b)

15. This was the appellant’s first offence involving any form of violence.  Properly understood, the circumstances of the offence were not grave.  There was no intention or attempt to stab or wound.  There was no pattern of repeat offending.  The magistrate was obliged to consider whether a sentence of a non-custodial nature would be inadequate.  He did not do so.

16. In the course of sentencing the magistrate remarked:

    I also need to underline the seriousness of this offence and send a message, to you and others that the courts will not tolerate offences of violence or misbehaviour directed at those working in hospitals and assisting those in need.

17. It was not open to the magistrate to have regard to issues of general deterrence. [7] In that respect section 3 of the Young Offenders Act limits the courts consideration of personal deterrence.

    [7] Young Offenders Act 1993 (SA) s3(2a), AJK v Police [(2002) 135 A Crim R 1, Schulze v S (1995) 180 LSJS 371 and R v QTV [2003] SASC 424 at [48]

18. The magistrate was correct to recognise the important role that nurses and others play in public hospitals.  It is important that the law protects persons working in public places in particular those providing assistance to others.  It is a matter of aggravation that the appellant’s threatening behaviour occurred in these circumstances.

19. Counsel for the Crown accepted that the magistrate had departed from the application of proper sentencing principles.

    Re-sentence

20. Both counsel agreed that it was appropriate for this Court to re-sentence the appellant.

21. The appellant was raised in Port Augusta and Whyalla.  She did not progress well at school and left when aged 15 years.  She formed a de facto relationship and had three children.

22. The appellant is fully employed at home looking after her family.  Her children are five, three and two months.  Her second child suffers from a serious brain injury.  The appellant has accommodation in Port Augusta where she lives with her mother and children.  She has separated from her de facto.  She has taken out a restraining order.

23. It was submitted that the appellant was contrite and remorseful about her behaviour.  She had apologised for her conduct.  It was pointed out that the appellant had support from her mother and from her wider family unit.

24. Counsel for the appellant invited this court to proceed without recording a conviction.  It was said that the appellant was only 19 years of age and has her adult life before her.  It was submitted that there would come a time when she will seek employment and that a conviction would inhibit her employment prospects.  In a recent ANU Centre for Aboriginal Economic Policy Research Report it was observed that:

    [T]he key feature of Indigenous employment status is that it remains firmly below the national average at less than three-quarters of the level recorded for non-indigenous adults.[8]

    [8] B H Hunter, Y Kinfu and J Taylor, ‘The future of Indigenous work: Forecasts of labour forces status to 2011’ No 251 of 2003 (ANU Centre for Aboriginal Economic Policy Research) at 3

25. It was accepted by counsel for the Crown that indigenous members of the Australian community have a significantly higher incidence of unemployment than others.[9]  Counsel accepted that a conviction would make it even more difficult for the appellant to find employment in an already difficult situation.  This is a relevant factor when considering whether to proceed without recording a conviction.[10]

    [9] See B H Hunter, Y Kinfu and J Taylor, ‘The future of Indigenous work: Forecasts of labour forces status to 2011’ No 251 of 2003 (ANU Centre for Aboriginal Economic Policy Research), Newcombe v Police[2004] SASC 26

    [10] Neal v The Queen (1982149 CLR 305; R v Fernando [1999] NSWCCA 66, R v Smith (2003) 86 SASR 132 at 153

26. The appellant’s criminal conduct arose as a result of frustration. This conduct resulted from the combination of inexperience, alcohol and anger. In these circumstances having regard to the terms of section 16 of the Criminal Law (Sentencing) Act 1988 (SA), it is appropriate not to impose a conviction.[11]  The appellant will be required to enter into an obligation to be of good behaviour and to follow the directions of her supervising officer of the Department of Human Services Family Youth Services.  The obligation will require the appellant to undertake such projects and programs as may be directed by that officer, particularly with regard to alcohol and drug counselling and anger management.

    [11] R v Police (2002) 224 LSJS 210, KBS v Police (2001) 212 LSJS 429

27. The obligation is to continue for 12 months from today. The acceptance of an obligation is a serious matter. A breach of the obligation has significant consequences. The obligation also provides future support and assistance to the appellant. This approach accords with the objects and terms of section 3 of the Young Offenders Act.

28. It is observed that the appellant has been under an obligation since November 2002.  She has not yet been appointed a supervising officer.  It is important that that officer be appointed as soon as practicable.

29. This appeal is allowed.  The orders of the magistrate are set aside.  The appellant is re-sentenced.  The appellant is released without conviction upon her agreeing to enter into an obligation in the terms earlier outlined.

    JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1      R v Proom (2003) 85 SASR 120 at 126-131

    2                In the present case section 23(6) had no application.

    3      Young Offenders Act 1993 (SA) s23(2)

    4      Young Offenders Act 1993 (SA) s23(1)

    5 R v Police (2002) 224 LSJS 210, RJB v Police [2000] SASC 209, AJK v Police (2002) 135 A Crim R 1. KBS v Police (2001) 212 LSJS 429

    6      Young Offenders Act 1993 (SA) s3(1)(3)(b)

    7Young Offenders Act 1993 (SA) s3(2a), AJK v Police [(2002) 135 A Crim R 1, Schulze v S (1995) 180 LSJS 371 and R v QTV [2003] SASC 424 at [48]

    8B H Hunter, Y Kinfu and J Taylor, ‘The future of Indigenous work: Forecasts of labour forces status to 2011’ No 251 of 2003 (ANU Centre for Aboriginal Economic Policy Research) at 3

    9See B H Hunter, Y Kinfu and J Taylor, ‘The future of Indigenous work: Forecasts of labour forces status to 2011’ No 251 of 2003 (ANU Centre for Aboriginal Economic Policy Research), Newcombe v Police[2004] SASC 26

    10Neal v The Queen (1982149 CLR 305; R v Fernando [1999] NSWCCA 66, R v Smith (2003) 86 SASR 132 at 153

    11     R v Police (2002) 224 LSJS 210, KBS v Police (2001) 212 LSJS 429