Reimann v Police No. Scciv-03-1028

REIMANN v POLICE
[2003] SASC 311
Magistrates Appeal: Criminal (ex tempore)

MULLIGHAN J The appellant pleaded guilty to having on 29 March 2003 at Maitland without lawful excuse, threatened to cause harm to a young woman intending to arouse a fear that the threat would be or was likely to be carried out or that he was recklessly indifferent as to whether such a fear was aroused contrary to s 19(2) of the Criminal Law Consolidation Act 1935.
Upon his conviction for that offence he was sentenced to imprisonment for a period of four days, which was not suspended. He appeals against that sentence.
On the night of 29 March 2003, the appellant rode a motor scooter whilst grossly intoxicated by alcohol. He fell off the motor cycle as he brought it to rest in the street at Maitland and the scooter then fell on him. This conduct was observed by a member of the public and the police were called.
A police officer attended at the scene and he arrested the appellant for drink driving offences and placed him in a police conveyance vehicle, and took him to Kadina, a distance of 56 km. During the course of the journey the appellant believed that the police officer was driving too fast, well in excess of the speed limit, and called upon him to slow down. That is his version of events.
The police officer continued the journey. I am informed that his version is that the appellant was calling out to him and was generally abusive. According to the police officer, during the course of the abuse, the appellant yelled to him, “I’ll fuck your daughter”.
The police officer has a daughter and had a concern that his daughter could subsequently be in danger because of this remark. Consequently upon arrival at the Kadina police station the charge was laid.
The appellant was placed into custody and released on bail at about 12.30 am, a period of about two hours. On 24 July 2003 he attended at court and pleaded guilty to a drink driving charge and to the charge which is the subject of this appeal. Upon being sentenced to imprisonment he was kept in custody until about 4.30 pm. So he spent the most part of the day in a cell.
The sole ground of the appeal is that the sentence of four days imprisonment is manifestly excessive.
The appellant is aged 38 years and with the exception of drink driving offences and other offences which I mention in a moment, is of good character and has been a useful member of the community. He is a plasterer and works in his own business as a contractor.
He is not married and I accept that he has undertaken valuable work in the community at Maitland. He assisted in the building of a BMX track, which involved work of about 200 hours. He established a gymnasium at his own expense which is available to people in the community, including young people, and he has participated in TAFE courses in connection with his trade for young Aboriginal people who live at Point Pearce.
The appellant first came into contact with the law in 1981 when he was found guilty in the then Children’s Court of larceny and the matter was resolved without conviction upon his being released on a bond. In 1984 he again appeared in the Children’s Court, having been charged with possession of a firearm without the appropriate licence and he received a small fine.
In 1985, he was convicted of a drink driving offence and fined. He was also disqualified from holding or obtaining a licence to drive a motor vehicle for a period of six months. Additionally he was also convicted of driving without due care.
In 1991 he was convicted of two separate drink driving offences. He had been apprehended, released on bail and then drove again whilst intoxicated. He was again apprehended with the second offence. He was fined and his licence was suspended for 12 months.
Apart from these matters, as I say, he has lived a useful life and has undertaken good work in the community and has been of good character.
It is conceded that the sentence of imprisonment of four days is manifestly excessive in the circumstances and must be set aside. In my view that concession by Mr Muscat is entirely appropriate. It follows that I must exercise the sentencing discretion afresh.
There is another reason why the sentence, in my view, could not stand and that is that the learned Magistrate sentenced on the basis that the paramount consideration in the sentencing process was that threats of the nature spoken by the appellant would not be tolerated. The learned Magistrate said he used the word “paramount”, “fearlessly and deliberately”.
It is a very rare case where one sentencing consideration overtakes all others and this is not such a case. The appellant had to be sentenced on the basis of the need to deter people who are minded to behave in the same way as he had behaved, to deter him, to provide adequate punishment but also to have regard to his background and to his prospects of rehabilitation. I do not think the need for community protection was an important consideration in all of the circumstances. The sentence had to be proportionate to his crime and a sentence of imprisonment in my view was clearly disproportionate.
The appellant asks that I should dispose of this matter without recording a conviction pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 which provides:
“Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion -
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to -
(i)     the character, antecedents, age or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)   any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
Before considering the discretion set out in that section I mention some other matters. It is accepted that there were no seat belts fitted in the rear of the conveyance vehicle and that the appellant genuinely believed, albeit in his grossly intoxicated state, that the vehicle was travelling too fast. It is also accepted that it could not be established that the appellant intended to arouse a fear that the threat which he made would be or was likely to be carried out but that the circumstances establish that he was recklessly indifferent as to whether such a fear was aroused. I accept that his plea of guilty necessarily means that the relevant fear had been aroused in the mind of the police officer that his daughter could be attacked.
The appellant attended at the police station soon after the offence and apologised to the police officer for his conduct generally during the incident. He did not apologise for making the threat because he did not recall having used those words, but he does not dispute that he did so. His apology is a matter of considerable importance in the exercise of the sentencing discretion.
I accept that he had been in custody for the periods that I have mentioned and that is a matter which must be taken into account.
I do not think that the circumstances of the appellant or of his offence justify the exercise of the discretion in his favour under s16 of the Criminal Law (Sentencing) Act 1988. Even though his threat was made with the element of recklessness, which I have mentioned, it is nonetheless a serious threat and has to be treated accordingly. It is appropriate to say in some circumstances where this sort of remark is made, it is an exercise in juvenile offensiveness, but to make the remark to a police officer about his daughter in the circumstances, does not admit of the exercise of the discretion under s16. There were no extenuating circumstances, the offence was not trifling and there was nothing about the character, antecedents, age or physical or mental condition of the appellant which would justify exercising the discretion.
His past record of committing drink driving offences suggests that he has not yet learned restraint in the context of drinking and for that reason it cannot be said that he is unlikely to commit such an offence again. I expect that he would not commit such an offence again if sober, but what he would do when drunk is not possible to now establish.
I decline to exercise the discretion under s 16 and I turn to the discretion pursuant to s 15. Pursuant to this section, if the Court finds that the offence was so trifling that it is inappropriate to impose any penalty, it may without recording a conviction dismiss the charge or upon recording a conviction, discharge the offender without penalty. I have said that I do not regard this offence as trifling and consequently there is no basis for exercising the discretion under that section. The conviction must stand. It is submitted by Mr Muscat that the appropriate penalty should be that the appellant undertake community service. I reject that submission. I take into account the time that the appellant has spent in custody and the matters that I have mentioned which are favourable to him about his background.
I allow the appeal. The sentence which I impose is that the appellant be released on a bond in the sum of $200 to be of good behaviour for a period of six months, and to come up for sentence if called upon and that is the penalty or the sentence that I impose.

[2003] SASC 311

2 September 2003