Rebers v Police - [2008] SASC 317

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
REBERS v POLICE
[2008] SASC 317
Judgment of The Honourable Chief Justice Doyle (ex tempore)
13 November 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appellant convicted of trespass in a place of residence, assault occasioning actual bodily harm, and breaches of bail agreement - breach of bail agreement occurred very shortly after agreement entered into - appellant did not accept responsibility for or express contrition in relation to offences until time for sentencing - appellant sentenced to five months and two weeks' imprisonment - Magistrate did not suspend sentence of imprisonment.
Held: Magistrate not in error in refusing to suspend sentence - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 40, s 170A; Bail Act 1995 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 10(2), s 18A, s 38, referred to.

REBERS v POLICE
[2008] SASC 317
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): This is an appeal against a sentence imposed by the Magistrates Court.
The Magistrate found Mr Rebers guilty of two offences after a trial before the Magistrate. Both offences were committed on 3 April 2006.
The first offence was an offence against s 170A of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The offence was that of being a trespasser in a place of residence knowing that another person was lawfully present. This was a basic offence because it was not an aggravated offence as defined by s 5AA of the CLCA. The offence attracted a maximum punishment of imprisonment for three years.
The second offence was an offence against s 40 of the CLCA, as it then was. The offence was that of assault occasioning actual bodily harm. It attracted a maximum penalty of imprisonment for five years. This offence was committed at the same time as the first offence. Mr Brown was the victim. As a result of a complaint to the police by Mr Brown, Mr Rebers was arrested on 19 May 2006. He was released on bail that day.
Mr Rebers pleaded guilty before the Magistrate to two charges of breaking his bail agreement contrary to s 17 of the Bail Act 1995 (SA). It was a condition of the bail agreement that Mr Rebers not approach or communicate with Mr Brown. Despite this, on the morning of 19 May 2006 (almost as soon as he was released on bail) and again the following day Mr Rebers telephoned Mr Brown and abused him. Each of these offences attracted a maximum penalty of two years’ imprisonment or a fine of $10,000.
In relation to the first and second offences, the Magistrate invoked the power conferred by s 18A of the Criminal Law (Sentencing) Act1988 (SA) and imposed a single sentence of imprisonment for five months. For the two breaches of the bail agreement the Magistrate imposed a single sentence of two weeks’ imprisonment. But for the pleas of guilty, the sentence would have been one month’s imprisonment. The Magistrate ordered that the sentences be served cumulatively, making a total of five months two weeks. She declined to suspend the sentence.
The issue on appeal is whether the Magistrate erred in failing to suspend the sentence. No criticism is made of the sentence apart from that.
Mr Brown lived with Ms Katemis. She and Mr Rebers had previously lived together. Ms Katemis had the custody of a child of her relationship with Mr Rebers. The daughter, Jordyn, is blind and suffers from a number of medical conditions. She requires a good deal of care. Material before the Magistrate indicated that Mr Rebers was devoted to his daughter, but tended to believe that only he knew how best to care for Jordyn. It seems that, perhaps arising from this, Mr Rebers resented Mr Brown’s contact with Jordyn.
At 6.30 pm on the evening in question, Mr Rebers and another man forced their way into the place where Mr Brown and Ms Katemis lived. Mr Rebers and the other man assaulted Mr Brown, punching him and kicking him. Mr Brown suffered a number of cuts and bruises, including one significant cut above his right eye. This was undoubtedly a frightening experience for Mr Brown and Ms Katemis. The fact that the two men forced their way into the house is a serious aspect of the offences. It was this incident that gave rise to the first and second offences.
The third and fourth offences flowed from this incident. The telephone calls are a serious breach of the bail agreement. They were likely to have caused Mr Brown to fear further harm.
Mr Rebers was 23 years of age at the time of the offences and 25 years of age when sentenced. He has a reasonably good employment record, but has been unemployed since the end of 2007. He is receiving the NewStart allowance.
In January 2003 Mr Rebers was convicted on two counts of committing an act likely to cause harm and one count of damaging property. For those offences he was sentenced to imprisonment for four months. The sentence was suspended upon him entering into a bond to be of good behaviour for a period of two years. He completed the period of that bond without offending. During the period of the bond Mr Rebers attended an anger management program and a victim awareness program.
Within a month or so of the expiry of the bond he committed an offence of trespass for which he was convicted and fined. This further offence, so soon after the expiry of the bond, is a cause for concern.
The Magistrate had the assistance of a pre-sentence report which was prepared in September 2008. That report stated that Mr Rebers continued to deny that he was guilty of the first two offences. The report also indicated that Mr Rebers had not accepted fully the need to control his anger and had not accepted that violence was not an appropriate response to a situation of conflict. Nor was there any indication of contrition on his part.
However, in submissions to the Magistrate, he accepted responsibility for what he had done and indicated contrition. That, however, came very late in the piece and has to be treated with some caution having regard to its lateness.
Having regard to the pre-sentence report and the circumstances of the offending, the Magistrate had to give weight to the need to deter Mr Rebers from violent conduct and from resorting to aggression in situations of conflict. The Magistrate also had to bear in mind that by s 10(2) of the Criminal Law (Sentencing) Act 1988 (SA) a primary policy of the criminal law is to protect the security of the home of lawful occupants against intruders. The fact that Mr Brown was attacked for a reason arising out of Mr Rebers’ relationship with Ms Katemis does not detract from the fact that Mr Rebers has to learn that he cannot use violence against those with whom he comes into conflict.
The Magistrate noted that Mr Rebers had not offended since June 2006. She noted also that his mother had said that he had matured a great deal in the past 12 months.
The sentence that the Magistrate imposed was appropriate having regard to the seriousness of the offending and the need to deter Mr Rebers from resorting to violence.
But did the Magistrate err in failing to suspend the sentence? It was open to her to do that if there was “good reason” to do so for the purposes of s 38 of the Criminal Law (Sentencing) Act1988 (SA). The Magistrate referred briefly to the relevant factors but declined to suspend the sentence.
I agree with the submission made for Mr Rebers that his age is a factor in his favour. However, he has reached an age at which he cannot claim that his conduct is due to mere youthful immaturity. He was 23 years of age at the time of the offences. Nevertheless, the fact that he is a relatively young man and the fact that he has not previously been in prison are factors that could support a decision to suspend the sentence.
The prospects of Mr Rebers’ rehabilitation were an important matter. So was the risk of him re-offending. However, there is not a lot in his favour in this respect. The pre-sentence report suggests that Mr Rebers had not learned that he could not resort to violence to resolve conflicts. The change of attitude in submissions before the Magistrate came late in the piece, as I have already said, and has to be treated with some caution.
This is not a case in which it can be said that there are strong prospects of rehabilitation supporting a decision to suspend the sentence of imprisonment. The fact that Mr Rebers has received counselling and advice is not, of itself, enough. There is no indication in any material before the Magistrate of the impact of this counselling and advice on Mr Rebers.
I accept that the first two sentences are attributable, to some extent, to Mr Rebers’ concern for Jordyn’s welfare. But the fact that he was so slow to accept that the way in which he responded to the situation was unacceptable is a cause for concern and undoubtedly concerned the Magistrate. So is the failure to learn from the experience of the suspended sentence. There is no reason to think that the sentence of imprisonment will mean that Jordyn will not be properly cared for.
The Magistrate relied in part on Mr Rebers’ failure to respond to the chance that the previous bond gave him. She meant that although he did not break the bond, he committed further offences after the period of the bond, one of them quite quickly. The Magistrate considered that this demonstrated a failure to learn from the experience of the bond. It was open to the Magistrate to take that view.
It does appear that Mr Rebers had not learned fully from the experience of the suspended sentence. I do not agree that the Magistrate gave undue weight to this aspect of the matter. The further offences by Mr Rebers do indicate that he has not learned what he should have learned from the lenience extended to him.
When everything is taken into account, I agree with the Magistrate that this is not the case for a suspended sentence. The need for deterrence and Mr Rebers’ failure to learn from past experience are relevant matters, not only when considering the head sentence, but also when considering whether to suspend the sentence. In my opinion, the Magistrate was right to conclude that there was an insufficient basis to suspend the sentence. In any event, it certainly cannot be said that the Magistrate was wrong to reach the conclusion that she did.
Accordingly, I dismiss the appeal against sentence.