Rae v Police No. Scciv-03-391

Rae v Police
[2002] SASC 270
Magistrates Appeal

GRAY J This is an appeal against sentence.
Background
The appellant, Jason Lee Rae was convicted of assault occasioning actual bodily harm and damaging property without lawful authority.[1]
[1] The information was in the following terms:
Mr Rae had been drinking with a friend after work on the night of 13 September 2002. They continued drinking together until the early hours of the morning. At some time Mr Rae’s friend received a phone call advising him that the victim, a friend of his, was upset and requesting that he attend at his home. Mr Rae accompanied his friend to the victim’s house. Mr Rae and his friend spent some time consoling the victim. At some stage the victim went to the bathroom and Mr Rae and his friend left the house. For reasons that were not explained to the magistrate, Mr Rae returned to the house. He broke through the closed bathroom door and assaulted the victim, punching him in the face, kneeing and kicking him. The victim suffered a fractured nose. Following the assault Mr Rae took a piece of wood broken from a doorframe, walked out and damaged the victim’s car.
Magistrate’s Findings
When sentencing the magistrate noted that Mr Rae had been under the influence of alcohol at the time of the offences.
…the fact of the matter is that you and others like you need to understand that, if you place yourself into an intoxicated condition and then you act violently towards other persons, you are still responsible for you actions.
The magistrate considered Mr Rae’s antecedents.
You have for a 25 year old man an appalling history of criminal offending. True it is, as your counsel points out, most of it is for driving offences but you do have prior convictions recorded on 29 April 1997 in the Adelaide Magistrate’s Court for offences of disorderly behaviour, assault police and resist arrest. There is in you background at least that prior instance of acting violently towards other person.
The magistrate imposed a sentence of ten months imprisonment. He declined to exercise his discretion to suspend the sentence:
I have absolutely no hesitation in saying that your offending is deserving of orders for imprisonment. You need to understand, as do others in the community, that in a so-called civilised society there is no place for this sort of violence, and especially violence where serious injury is the result.
Your counsel has argued for a suspended sentence of imprisonment but I am sorry to say that I consider the facts of this matter too serious to allow for a suspended sentence of imprisonment.
I start from a head sentence for both the assault occasioning actual bodily harm and the damage to the vehicle of 12 months imprisonment. I give you credit for your pleads of guilty and I reduce the sentence of imprisonment for both of those offences to 10 months. That sentence of imprisonment is to commence forthwith…
The Appeal
Material before the Magistrate
Counsel for Mr Rae provided limited information to the magistrate. This is a matter of concern. There was much that could have been said. The magistrate received no information about Mr Rae’s family background, alcohol and drug problems or psychiatric history. Little information was put before the magistrate to suggest that Mr Rae had prospects for rehabilitation. Counsel appearing before the magistrate took instructions and formed the impression that Mr Rae was not in need of a psychiatric or psychological assessment and that such assessment would not assist the appellant. Mr Rae apparently did not want a pre-sentence report prepared. He wanted the matter to be finalised that day.
Issues on Appeal
Counsel for Mr Rae submitted that the sentence was manifestly excessive, that the magistrate did not have sufficient regard to Mr Rae’s prospects of rehabilitation and that too much emphasis was placed on the past offence of assault. It was further submitted that the magistrate made no allowance for contrition and co-operation with police and had failed to reduce the sentence sufficiently taking into consideration the pleas of guilty. It was said that the magistrate erred in failing to suspend the sentence.
Factual Error
Counsel for the Crown conceded that the magistrate erred in that he sentenced the appellant on an incorrect factual basis. The magistrate misunderstood the extent of the injuries suffered. He said that ‘[the victim] suffered a fractured eye socket and a fractured nose as a result of your assault upon him’. It is accepted that the Magistrate erred in making this finding. A report from the victim’s treating doctor was provided to the court. It clearly showed that the injury suffered by the victim was less serious than the basis on which the magistrate had sentenced. The victim did not sustain a “fractured eye socket”.
Criminal Antecedents
In his remarks on penalty the Magistrate commented:
You have for a 25 year old man an appalling history of criminal offending.
Although literally correct, a close review of Mr Rae’s antecedent report discloses a different picture. Mr Rae’s antecedent report reveals a lengthy history of offending. He came into contact with the law as a juvenile for minor dishonesty and theft. As an adult, his offending was increasingly associated with the use of alcohol. Prior offences include traffic infringements, driving under the influence, driving unregistered and driving while disqualified. Short suspended sentences have been imposed on previous occasions.
In 1997 Mr Rae was convicted of disorderly behaviour, assault police and resist police. He was aged 19 at the time. While the assault of a police officer is a serious matter, the offence was said to have arisen from a minor scuffle. Apparently no injury resulted. The offending was at the lower end of the scale. This was confirmed by the penalty imposed - 120 hours of community service. But for the 1997 assault conviction, Mr Rae’s record discloses only one previous offence that may possibly have involved violence. In 1993 he was charged as a juvenile with the offence of resist police. The charge was dismissed without conviction. Apart from traffic related offences Mr Rae has been “out of trouble” for more than 6 years.
This brief analysis suggests that there has been a marked improvement in Mr Rae’s behaviour over recent years. The magistrate failed to have regard to this evident improvement.
Rehabilitation
Section 10 of the Criminal Law (Sentencing) Act 1988 (SA) provides that age and rehabilitation are relevant factors to be considered when sentencing. In Ienco v Kraft[2] Olsson J observed:
whole tenor of the [Sentencing Act] is that primary emphasis ought to be given to rehabilitation, where the evidence indicates that this may be facilitated consistently with preserving a proper balancing of other community interests such as deterrence and adequate punishment for wrongdoing.
When young people are involved in criminal activity, the importance of rehabilitation has been repeatedly recognised by the courts.[3]
[2] (1988-90) 53 SASR 40 at (44-45)
[3] The Queen v Avgoustinos [1975] 13 SASR 48 at 49; R v Weaver (1973) 6 SASR 265 at 267; Vartzokas v Zanker (1988-89) 51 SASR 277 at 279, Inge v R (1999) 199 CLR 295
The magistrate’s sentencing remarks do not disclose any consideration of Mr Rae’s prospects for rehabilitation. Little is said about Mr Rae’s personal antecedents. The sentence imposed did not allow for early release from custody on parole. The sentence did not include the imposition of a bond. The sentence did not provide for any form of counselling, treatment, advice or ongoing supervision. These matters would benefit both Mr Rae and the community. These were important matters to be addressed.
Conclusion
In Dinsdale v R[4] Gleeson CJ and Hayne J observed:
The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
[4] (2000) 202 CLR 321per Gleeson CJ and Hayne J at [3-4]
As earlier observed, counsel for the Crown conceded that the magistrate was incorrect in his understanding of the nature and severity of the victim’s injuries. It follows that when sentencing, the magistrate had regard to an irrelevant consideration. The tenor of the magistrate’s remarks indicate that this was a matter relevant to his decision not to suspend the sentence in this case.
The magistrate gave too much weight to what he considered to be an ‘appalling history of criminal offending’. When properly understood this was Mr Rae’s first real offence involving violence. His record disclosed that there had been a marked improvement in Mr Rae’s conduct during the years leading to the present offending. It is also apparent that the magistrate did not give adequate consideration to Mr Rae’s prospects for rehabilitation. For these reasons, it is necessary to re-sentence the appellant.
Considerations on Re-sentencing
Further Evidence
Further evidence was placed before this court. Pre-sentence and psychological reports were provided. In the course of submissions counsel outlined circumstances of Mr Rae’s psychiatric treatment. Counsel for the Crown accepted that the further evidence was relevant material to be considered.
Personal Antecedents
Mr Rae is a 26 year old Aboriginal man. He was born in Adelaide but lived with his parents in Whyalla. His father left and moved to Brisbane when Mr Rae was six years of age. Mr Rae’s mother met a new partner when Mr Rae was 9 years of age. His mother’s new partner had an alcohol problem. He was violent. Mr Rae was witness to that violence.
Mr Rae remained at school until year 11. He was heavily involved in school sport. Mr Rae then held various jobs for short periods. He was later involved in the Community Development Employment Projects (CDEP) program for two years. Most recently he has worked in a vineyard. He is involved in professional football and receives about $500 a game. He commenced an aquaculture course at Flinders University, however had to withdraw following injuries suffered in a road accident. Mr Rae has also been involved in a serious road accident in 2001. He suffered injuries to his lower back.
Psychological History
A psychological report disclosed a history of mental instability and depression. In September 2000 Mr Rae received inpatient treatment in a psychiatric unit following a psychotic episode. Following discharge he received psychiatric treatment for more than 12 months.
The psychologist noted that Mr Rae had been raised in a dysfunctional family. Mr Rae witnessed a number of violent incidents between his mother and her partner. He considered that Mr Rae had lacked a male role model from a young age. The psychologist noted:
His mother’s partner was a violent alcoholic who was physically abusive and threatening towards Mr Rae’s family members…His actions were motivated to prevent this man from further abusing his family and served to justify or sanction the use of violence for Mr Rae in these types of circumstances…
Consequently, with the assistance of a structured and supervised rehabilitation program, Mr Rae’s propensity not to re-offend in a seminal manner is fair to good, given that Mr Rae’s family history does not indicate any propensity towards violent conduct (ie antisocial personality disorder) and that his previous offence history has generally included alcohol-related incidents centred around motor vehicles rather than a pattern of assault-related offences.
The Department for Correctional Services offers programs for offenders who display difficulty with the appropriate expression of anger, as well as programs for individuals who have difficulty appreciating the impact of their offences upon their victim. Consequently, I would recommend that Mr Rae be required to attend an Anger Management Group Program to gain insight into his specific triggers and to learn coping strategies for dealing more effectively with frustrating situations. In addition, Mr Rae would gain benefit from attending Victim awareness Group Program to gain insight into the impact of violent crime upon others in the community in terms of primary and secondary victims. Further, Mr Rae may gain insight into the effects of substances such as alcohol on the individual and the community as a whole. These group programs are offered within custodial institutions as well as in community correctional centres.
In addition, Mr Rae could gain benefit from accessing the services of a psychologist to provide him with ongoing assertiveness skills for managing conflict situations. Mr Rae could access the services of a clinical psychologist through being referred to the Forensic Mental Health Services Outpatient Department at James Nash House. Equally, the Department for Correctional Service has recently been seeking to employ psychologists in the community locations such as Adelaide CCC. Which could be easier for Mr Rae to access, should he receive a non-custodial sentence.
Gravity of the Conduct
The victim’s injuries and the damage to property have been recounted earlier in these reasons. These were serious offences.[5] The past instance of violence in Mr Rae’s history appears to have been impulsive and isolated. Counsel for the crown accepted that a description of Mr Rae’s prior offending as ‘an appalling history of criminal offending’ overstated the relevant antecedents.
[5] The maximum penalty for the offence of assault occasioning actual bodily harm is imprisonment for a term of five years.
Mr Rae’s urban aboriginality is a relevant consideration. In Neal v The Queen[6] Brennan J observed:
The same principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account in accordance with those principles, all material facts, including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the administration of justice.
[6] (1982) 42 ALR 609 at 626
In Roger and Murray v R[7] Malcolm CJ stated:
It is apparent, however, that there may well be particular matters which the court must take into account, in applying those principles, which are mitigating factors applicable to the particular offender. These include social, economic and other disadvantages which may be associate with or related to a particular offender’s membership of the Aboriginal race.
[7] (1989) 44 A Crim R 301 at 307
Relevantly the psychologist concluded:
In my opinion, at interview, there was no evidence to suggest that Mr Rae was experiencing any psychotic phenomena (ie a break with reality), possessed an intellectual disability, a major mood disorder or a serious personality disorder.
The psychological profile is that of a 26-year-old man of borderline intelligence (ie a level of intelligence in the bottom 10% of the population) with adequate literacy skills, equivalent to a child aged 12 years and 6 months. He has few work-related skills and relies on his physical skills to assts him financially, mainly through sporting interests. Nevertheless, given his part indigenous origins, his intelligence estimate may be an under-estimate of his true level of functioning.
Mr Rae appears to have offended in this manner due to being exposed to a number of critical stressors during his psychosocial development. These include:
-     He was never exposed to an appropriate male role model in the family home during his development after the departure of his father, when he was aged approximately five or six years. This deprived Mr Rae of the opportunity to develop appropriate norms for social conduct and often results in somewhat idealised or “traditional male norms” being adopted based on inaccurate perceptions of other males in the extended family.
-     His mother’s partner was a violent alcoholic who was physically abusive and threatening towards Mr Rae’s family members, which eventually prompted Mr Rae to defend his family against this man. His actions were motivated to prevent this man from further abusing his family and served to justify or sanction the use of violence for Mr Rae in these types of circumstances.
-     Mr Rae’s experiences of racism, due to being part of a minority group, also taught him the value of protecting and defending family members. This experience would also strengthen his resolve to defend family members, as evidence by his actions in defending his cousins in the previously mentioned brawl in Hindley St. Psychological research has indicated that members of a particular social “in-group” act to reinforce group norms and strengthen the social group against threats from perceived “out-group” members. Individuals perceived as acting against other “in-group” members, would be likely to be received in a very negative manner.
Mr Rae’s actions were further exacerbated by recently consuming alcohol and his own inability to form a satisfying relationship with a woman in recent times. As a consequence, he appeared to view the victim of these offences as a man who has many advantages to his existence (ie occupation, partner, children) who was nevertheless behaving in a disparaging manner towards his family (ie acting against other “in-group” members) and his life, through threatening to abandon them through contemplating suicide.
Compensation
Counsel for Mr Rae indicated that the appellant was in a position to pay compensation to the victim. The court was informed that $500 could be paid immediately, with the balance being paid on a fortnightly basis. Section 14A[8] of the Sentencing Act however, provides that this court does not have power to order the terms of payment.
Suspended Sentence of Imprisonment
[8] Section 14A provides:
(1) Where a court makes an order requiring a defendant to pay a pecuniary sum, the court is not empowered to make any order relating to the time or manner in which the sum is to be paid (for those powers see Part 9).
(2) Subsection (1) does not derogate from any order of a court or an officer of a court that was in force immediately before this section came into operation.
See Muldowney v Flinders University (2002) 83 SASR 587:
Division 3 was amended by s25 of the Statutes Amendment (Fine Enforcement) Act 1998. It is unnecessary for present purposes to mention the new provisions in detail. The effect of them is that any pecuniary sum due has to be paid within 28 days of the order being made: s61 of the Sentencing Act. Pursuant to s3(1) of that Act a “pecuniary sum” means a fine, compensation, costs and other types of financial liability which are not relevant for present purposes. When imposing a fine or ordering a person to pay some other pecuniary sum, the court is not empowered to make any order relating to the time or manner in which the sum is to be paid: s14A(1) of that Act. A pecuniary sum is paid to the Manager or any agent appointed by the Manager: s62(1). The Manager is the Manager, Penalty Management, who is a member of the Administration of the Magistrates Court of South Australia: s12(1)(ab) of the Magistrates Court Act 1991. That Manager disburses pecuniary sums collected by him in accordance with s62(2) of the Sentencing Act which includes payment of costs to the party entitled to them.
S64 of that Act provides that a person owing a pecuniary sum (“the debtor”: see s60) may enter into an arrangement for payment including by instalments. An authorised officer may investigate the debtor's means of satisfying a pecuniary sum: s66. An “authorised officer” is the Sheriff, the Manager, Penalty Management, a Registrar of the Magistrates Court, the Registrar of the Youth Court or a person appointed by the State Courts Administrator. The authorised officer may make penalty enforcement orders in relation to a debtor as appear likely to result in full or substantial satisfaction of the due amount: s69(1). Priority should be given to suspension of a licence to drive a motor vehicle: s69(2). Other options are the sale of property, a garnishee order and an order for community service.

A suspended sentence is a very real form of punishment. In Elliot v Harris(No 2)[9] Bray CJ observed:
So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.
[9] (1976) 13 SASR 516 at 527
The circumstances in which a suspended sentence may be ordered were noted by Walters J in Wood v Samuels[10].
Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court's clemency.
Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided.
[10] (1974) 8 SASR 465 at 468
Mr Rae’s offending was serious. The offence was carried out in the victim’s home. Injuries were sustained. The assault ceased only when a witness intervened. Following the assault the appellant damaged the victim’s property. The severity of the offending, and Mr Rae’s criminal antecedents required that a sentence of imprisonment be imposed.
Mr Rae demonstrated contrition when interviewed by police and expressed a wish to apologize to the victim. He also fully cooperated in the police investigation. He pleaded guilty. Mr Rae spent 7 days in custody before he was granted bail pending appeal. This has provided a “short, sharp shock”.
It is appropriate to impose a term of six months imprisonment.
Mr Rae’s personal antecedents suggest that he has good prospects for rehabilitation. He had kept out of trouble for some years. He has responded well to being under supervision in the past. He is currently under supervised bail by police. He has complied with all bail conditions. The pre-sentence report indicated that favourable reports had been received of Mr Rae’s “attitude, behaviour and choice of companions”. This is a case where good reasons exist to suspend the sentence of imprisonment.
The orders of the Court are as follows:
-     The appeal against sentence is allowed.
-     The orders of the magistrate are set aside.
-     Mr Rae is sentenced to imprisonment for 6 months. That sentence is suspended upon Mr Rae entering into a bond.
-     The terms of the bond are that Mr Rae be of good behaviour for a period of 2 years, that he obey all reasonable directions of his correctional service officer, that he undertake such courses as may be directed including courses as to anger management, drugs and alcohol. The appellant is further required to submit to medical assessment or review as directed by his community corrections officer.
-     Mr Rae is to pay compensation of $2000 to the victim of the offence.

On the 14^th day of September 2002 at Moonta in the said State, assaulted [SEH] a person of or above the age of 12 years thereby occasioning him actual bodily harm. Section 40 of the Criminal Law Consolidation Act, 1935. This is a minor indictable offence.

On the 14^th day of September 2002 at Moonta in the said State, intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing that no such lawful authority existed damaged a motor vehicle the property of [SEH], such damage amounting to not more than $2,000. Section 85(3) of the Criminal Law Consolidation Act, 1935. This is a summary offence.

[2003] SASC 270

14 August 2003