RICHARDSON v Police - [2009] SASC 297

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RICHARDSON v POLICE
[2009] SASC 297
Judgment of The Honourable Justice White
25 September 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appeal against sentence - appellant pleaded guilty to the offences of unlawfully damaging property and disorderly behaviour - offending breached a suspended sentence bond relating to offences of disorderly behaviour, refusing to provide his name and address and resisting police ("prior offences") - sentencing Magistrate imposed 42 days imprisonment for the offence of unlawfully damaging property; two months imprisonment for the offence of disorderly behaviour and revoked the suspension of the sentence of three months imprisonment imposed for prior offending - these three terms were to be served cumulatively.
Magistrate mistakenly proceeded on the basis that the maximum penalty for the offence of disorderly behaviour was double its actual maximum penalty - whether Magistrate mistakenly proceeded on the basis that the appellant had previously been subject to two terms of imprisonment for the offence of damage property - whether Magistrate erred in ordering that the appellant pay the whole of the bond amount for previous offending.
Held: Magistrate's mistake as to the maximum penalty for the offence of disorderly behaviour was material - Magistrate erroneously proceeded on the basis that the appellant had previously been subject to a term of imprisonment for the offence of damage property.
Appropriate to re-sentence the appellant - six weeks imprisonment to be imposed for the offences of unlawfully damaging property and disorderly behaviour - appropriate to suspend the sentence of imprisonment in the circumstances - appeal allowed.
Criminal Law Consolidation Act 1935 (SA), s 85; Summary Offences Act 1953 (SA), s 6, s 7, s 74A; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A, s 58, referred to.
R v Beary (2004) 11 VR 151, considered.

RICHARDSON v POLICE
[2009] SASC 297
Magistrates Appeal

WHITE J: This is an appeal against sentence.
On 10 April 2009, the appellant committed the offence of unlawfully damaging property[1] by smashing the windshield on the door of a taxi. The appellant, who was intoxicated, had travelled as a passenger in the taxi to his home. After alighting, he wrongly construed something said by the taxi driver on his radio as being denigratory of him. He became enraged and punched the windshield. It had to be replaced at the cost of $200. The maximum penalty for this offence is imprisonment for two years.
[1] Criminal Law Consolidation Act 1935 (SA) s 85(3).
Two weeks later, on 24 April 2009, the appellant committed the offence of disorderly behaviour.[2] At about 4.15 pm, while carrying some cans of beer, the appellant entered the McDonald’s restaurant on Penola Road, Mount Gambier. He was intoxicated and accompanied by two others. The appellant approached a patron in the restaurant and asked to use his mobile telephone. When the patron declined, the appellant abused him loudly and attempted to intimidate him into picking up one of the cans of beers which had fallen to the floor. The restaurant was crowded with families and children at the time. The appellant’s behaviour was boorish and threatening and the language which he used was profane.
[2] Contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA).
On 26 June 2009, the appellant acknowledged that the offence of unlawful damage to property constituted a breach of a suspended sentence bond into which he had entered on 18 February 2008. In February 2008, he was sentenced to imprisonment for three months for the offences of disorderly behaviour, refusing to provide his name and address, and resisting police all of which were committed on 24 November 2007. That sentence was suspended upon him entering into a bond in the sum of $500 requiring him to be of good behaviour for a period of three years. At the time of the offence committed on 10 April 2009, the appellant had served some 14 months of the period of that bond.
In relation to the breach of bond, the Magistrate made orders under s 58 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). He revoked the suspension of the term of imprisonment for three months and ordered that the appellant commenced serving that sentence forthwith. In addition, the Magistrate ordered that the appellant pay the whole of the bond of $500.
For the offence of unlawful damage to property committed on 10 April 2009, the Magistrate took as a starting point a sentence of two months imprisonment, but reduced that to 42 days on account of the appellant’s plea of guilty. For the offence of disorderly behaviour committed on 24 April 2009, the Magistrate took as a starting point a sentence of three months but reduced that to two months on account of the guilty plea. This sentence was made cumulative upon the first sentence, and both sentences were ordered to be served cumulatively upon the revoked suspended sentence.
On the appeal, the appellant complains about each of the sentences imposed for the offences committed on 10 April and 24 April 2009. He also contends that the Magistrate should not have made an order requiring him to pay the sum of $500 in respect of his breach of the suspended sentence bond.
Errors in the Sentencing for the April Offences
The respondent acknowledged that the Magistrate’s sentencing remarks reveal an error in the sentencing of the appellant for the offence of disorderly behaviour. The Magistrate mistakenly thought that the maximum penalty for that offence was imprisonment for six months, whereas in fact it is imprisonment for three months.
It may be that not every mistake by a sentencing judge or magistrate about the applicable maximum penalty will be material or vitiate the sentencing discretion.[3] However, in the present case, the Magistrate wrongly considered that the maximum penalty was double that which was applicable, and the effect of his mistake is that he took the maximum applicable sentence as his starting point rather than one‑half of that maximum, as he had supposed. This is such a material error as to require the sentencing discretion to be exercised afresh.
[3] See the line of authority to which Callaway J referred in R v Beary [2004] VSCA 229 at [15]; (2004) 11 VR 151 at 157.
The Magistrate’s sentencing remarks also suggest that he may have made a further error in relation to the sentence for the offence of disorderly behaviour. The Magistrate said in relation to this offence:
I think it important to remind myself though that you are charged with disorderly behaviour and not assault. But the disorderly behaviour it seems to me was a serious one of its kind. This is of course the very kind of offending for which you received the suspended sentence of imprisonment bond. [Emphasis added]
If the passage which I have emphasised is read literally, it suggests that the Magistrate considered that the suspended sentence had been imposed only for an offence of disorderly behaviour. That was not the case as the appellant was then before the Court for three offences: disorderly behaviour; refusing to supply his name and address to the police;[4] and resisting police in the execution of their duty.[5] However, counsel took the view, appropriately in my opinion, that the Magistrate’s remarks were a reference to the conduct of the appellant generally, and, that the suspended sentence had been imposed for conduct of a generally disorderly kind, even though the conduct constituted different offences.
[4] Contrary to s 74A(3)(a) of the Summary Offences Act 1953 (SA).
[5] Contrary to s 6(2) of the Summary Offences Act 1953 (SA).
The appellant submitted that the Magistrate’s remarks also indicate a material misunderstanding by him of a relevant circumstance relating to the sentence to be imposed for the offence of unlawfully damaging property committed on 10 April 2009. The Magistrate said:
The damaging property was a serious offence. It was as a consequence of nothing at all that had been said to you. You declined to accept a perfectly innocent explanation and then wilfully caused damage to the property that would have been significant for the taxi driver, that is to say, the window of his vehicle [being] smashed.
I think a period of imprisonment is warranted, warranted by reason of your committing [an] offence for which you received imprisonment in the past and you were under a suspended sentence of imprisonment to be of good behaviour at the time of this offending. [Emphasis added]
The appellant submitted that the emphasised words indicate that the Magistrate considered that the appellant had previously received a sentence of imprisonment for an offence of unlawfully damaging property and that this was incorrect. While the appellant’s history of offending is regrettably long, it does not include any offence of unlawfully damaging property for which he was imprisoned. The respondent submitted that the Magistrate’s remarks were to be understood in a different way, ie, as a statement of the reasons arising under s 11 of the CLSA as to why imprisonment was appropriate.
I consider that it is possible to construe the Magistrate’s remarks in each of the ways for which counsel contended and the appropriate understanding of them has given me some pause. However, in the end I accept the appellant’s submission. It fits more naturally with the words used by the Magistrate and I consider it less likely that the Magistrate would have intended, in the one sentence, to refer twice to the one imprisonment.
These errors mean that this Court should re-sentence the appellant for the April offences.
Re-Sentence of the Appellant
The appellant is now aged 30 and at the time of sentencing in the Magistrates Court on 26 June 2009 was unemployed. In the past he has been employed as a plasterer. That employment came to an end in early June 2009 because of his court matters. Once discharged from gaol, the appellant will be able to return to his previous employment.
As I have noted, the appellant’s antecedent history is unfortunately long. As an adult, he has two convictions for disorderly behaviour, two convictions for the offence of resisting police, one conviction for hindering police, three convictions for fighting, one conviction for refusing to state his name and address to a police officer when required to do so, one conviction for damaging property, three convictions for alcohol related driving offences, two convictions for failing to hold a driver’s licence as well as convictions for some traffic offences.
However, the appellant has received a sentence of imprisonment on only one previous occasion, namely, the suspended sentence of imprisonment for three months imposed on 18 February 2008.
It is evident that the appellant has a problem with alcohol. Many of his offences have been committed while intoxicated. It was a condition of the bond imposed on 18 February 2008 that he comply with any directions given to him to address his abuse of alcohol. The appellant did complete an alcohol abuse program but, despite that, both the offences in April 2009 were committed at a time when he was intoxicated.
It is to the appellant’s credit that he complied with the terms of his bond for a period of some 14 months. But on the other hand, it is an aggravating feature of both offences that they were committed whilst he was subject to a suspended sentence bond.
The circumstances of the offence committed on 10 April 2009 suggest that the conduct was spontaneous, being a reaction to the appellant’s misunderstanding of what the taxi driver had said, and a refusal to accept the taxi driver’s explanation. The incident would have been frightening for the taxi driver as it involved an act of violence very close to the position in which he was seated in the cab. I note, however, that the appellant was a regular customer of the taxi driver who acknowledged that he had never caused problems before. The appellant was cooperative with the police when they spoke to him shortly after the commission of the offence. The circumstances of this offence were severe enough but I consider that they indicate that the offence was towards the lower end of the range of seriousness for this kind of offending.
The offending on 24 April 2009 appears to have been more serious. It was unprovoked and appears to have involved deliberate disruption within the McDonald’s restaurant. The appellant persisted with bullying and intimidatory conduct until required to leave the restaurant by the manager. I note again that the appellant has two prior convictions for the same offence.
In my opinion, it is appropriate to invoke s 18A of the CLSA so as to impose a single sentence. Having regard to s 11 of the CLSA, I consider that a sentence of imprisonment is appropriate for both offences. A variety of sentencing options have been invoked in relation to the appellant’s offending in the past and they have not deterred him from further offending. His history suggests that personal deterrence is an important consideration in the fixing of an appropriate sentence. The appellant must expect the more serious sentencing options to be invoked if he continues to offend.
Although the maximum penalty for the offence of unlawful damage is higher than that for disorderly behaviour, I consider that the appellant’s commission of the latter offence was more serious. It was his third offence of the same kind, and it was committed while he was subject to the suspended sentence bond, and after he had been reported for the offence of unlawfully damaging the property of the taxi driver. It cannot be characterised as a spontaneous response to a misunderstanding on the appellant’s part.
I consider that, if sentenced separately, a sentence of imprisonment for six weeks would have been an appropriate starting point for the offence of disorderly behaviour committed on 24 April 2009 and that a starting point of about three weeks would have been appropriate for the offence of unlawful damage committed on 10 April 2009. The two offences were quite separate and I do not consider that there are grounds for making the sentences concurrent. That gives a starting point for a sentence under s 18A of the CLSA of nine weeks imprisonment.
Using the same proportional reduction for the pleas of guilty as used by the Magistrate, I reduce that starting point to six weeks. Accordingly, I impose a sentence of six weeks imprisonment as a single sentence under s 18A.
Although the appellant has had the benefit of a suspended sentence in the past, I am prepared to suspend that sentence. I consider that there is good reason to do so having regard to the fact that the appellant has now had the experience of serving a custodial sentence. He had not had that experience when sentenced by the Magistrate.
Accordingly, I will suspend the sentence of imprisonment for six weeks upon the appellant entering into a bond in the sum of $300 to be of good behaviour for a period of 15 months. There will be additional conditions of the bond to which I will refer shortly.
Estreatment of the Bond
As noted, the Magistrate ordered that the appellant pay the whole of the bond of $500. In doing so, the Magistrate was exercising the power contained in s 58(1) of the CLSA which authorises a court to order a probationer who has breached a bond to pay the whole or part of the amount fixed in the bond.
Section 58(2) imposes a limitation on the exercise of that power. It provides:
The court may not order a person to pay an amount pursuant to subsection (1)(a) unless the court is satisfied—
(a)that the person has, or will within a reasonable time have, the means to pay the amount; and
(b)that payment of the amount would not unduly prejudice the welfare of dependants of the person.
It can be seen that before making an order under s 58(1)(a) the Court must first be satisfied that the probationer has, or will within a reasonable time have, the means to pay the amount of the bond.
Section 58(2) is in the form of a negative stipulation. It specifies a matter about which the Court must be satisfied before making the order for payment. Section 58(2)(a) had particular application in the circumstances of the appellant. He was unemployed at the time of sentencing and, because of the revocation of the suspension of the three-month sentence, and the other sentences of imprisonment imposed by the Magistrate, he was going to be unable to participate in the paid workforce for a period of at least six and a half months. The Magistrate did not have any evidence at all that the appellant had the means, at the time of sentence, to pay the sum of $500 in addition to the sum of $200 compensation which had been ordered as well as the court costs. The period of imprisonment for six and a half months meant, in my opinion, that the Magistrate could not be satisfied that the appellant would have the means to pay the sum of $500 within a reasonable time. Accordingly, I consider that the Magistrate was in error in making the order for payment of the sum fixed by the bond and his order to that effect should be set aside.
Given the orders that I will make, the appellant will be able to return to the paid workforce sooner than contemplated by the Magistrate. Despite that, there is no other evidence before the Court that the appellant will have the means, within a reasonable time, to pay the amount of the bond. Accordingly I will not make any other order concerning payment of the whole or part of the bond.
Conclusion
In summary, I allow the appeal. I set aside the orders for imprisonment imposed by the Magistrate for each of the two offences committed in April 2009. Acting under s 18A of the CLSA, I impose a single sentence of imprisonment for six weeks in respect of those two offences. That sentence will be suspended upon the appellant entering into a bond to be of good behaviour for a period of 15 months. It will be a condition of the bond that the appellant be under the supervision of a Community Corrections Officer and that, within the period of nine months commencing on the day upon which he enters into the bond that he perform 32 hours of community service.
I also set aside the order of the Magistrate requiring the appellant to pay the sum of $500 fixed in the bond into which he entered on 18 February 2008.
In all other respects, the orders made by the Magistrate are to stand.