ROWETT v Police - [2011] SASC 180

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ROWETT v POLICE
[2011] SASC 180
Judgment of The Honourable Justice Kelly (ex tempore)
12 October 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
Appeal against decision of Magistrate - appellant was convicted of one charge of damage building or vehicle contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA) and one charge of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) - appellant pleaded guilty to both charges - Magistrate sentenced the appellant to two months imprisonment unsuspended – whether the Magistrate erred in imposing a sentence of imprisonment and not suspending it - whether the Magistrate failed to provide adequate reasons when imposing a sentence of imprisonment.
Held: Appeal allowed - Magistrate did consider all factors when deciding to impose a term of imprisonment - Magistrate erred in the exercise of discretion not to suspend the sentence - no indication in Magistrate’s reasons that all factors relevant to the exercise of the discretion were taken into account - appellant resentenced - sentence imposed by the Magistrate confirmed - sentence suspended on appellant agreeing to enter into a bond to be of good behaviour for 18 months.
Criminal Law Consolidation Act 1935 (SA) s 18A, s 20(3), and s 85(2); Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Ienco v Kraft (1990) 53 SASR 40, considered.

ROWETT v POLICE
[2011] SASC 180
Magistrates Appeal: Criminal

KELLY J (ex tempore): This is an appeal against sentence.
The appellant was charged with one count of damaging property contrary to s 85 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and one count of aggravated assault contrary to s 20 of the Act.
The conduct occurred on 23 March 2011. The matter was heard in the Adelaide Magistrates Court on 10 August 2011 when the appellant pleaded guilty to both charges.
The Magistrate sentenced the appellant to two months imprisonment. It is appropriate to recite the relevant facts.
On 23 March this year the appellant assaulted the victim at approximately 6.30 pm outside her home. The victim reversed out of her driveway when she noticed the appellant’s car in front of her. He got out of his car and walked over to the victim’s car carrying a crowbar. The victim yelled out to the appellant to stop but he kept walking towards her while she was still in the vehicle yelling ‘You’re fucked’ or words to that effect. The appellant then swung the crowbar at the vehicle, hit the driver’s side mirror causing it to smash. He swung the crowbar again at the driver’s side of the window and caused it to crack and then delivered a third blow which smashed the window. The victim feared she was going to be harmed. The car belonged to the victim’s father.
The Magistrate in sentencing the appellant indicated that he took into account the early guilty plea. However, he did not say to what extent he discounted the sentence. He described the appellant’s conduct as ‘arrogant, opportunistic, unmitigated and inexcusable thuggery’. The Magistrate then indicated that he was going to impose a two-month immediate term of imprisonment. He indicated that suspension of the sentence would not be appropriate.
Counsel for the appellant had requested in her sentencing submissions to the court that the court impose a good behaviour bond without conviction. The application was not opposed by the police prosecutor except to the extent that the prosecution submitted a conviction in the case of each count should be recorded due to the nature of the crimes.
The appellant now complains that the Magistrate erred first in imposing a sentence of imprisonment and, second, in failing to suspend the term of imprisonment which he did impose. In support of the complaint that the Magistrate did not consider, as he was required to do, other alternatives besides a sentence of imprisonment, the appellant pointed to the brevity of the Magistrate’s remarks.
It is true that the Magistrate’s remarks were extremely brief. All he said was: “This was arrogant, opportunistic, unmitigated and inexcusable thuggery. The law condemns it; the community condemns it. It demands a sentence of imprisonment.”
However, I cannot accept the appellant’s argument that there is no indication therefore that the Magistrate turned his mind to the other alternatives available. This was an experienced Magistrate. He correctly took into account, in my view, that this was a very serious offence. He expressly stated so.
The offence of aggravated assault carries with it a maximum term of imprisonment of four years; the offence of damaging property, a maximum term of imprisonment for 10 years.
The assault was aggravated by the use of the crowbar no matter what its precise physical description. So on any view of it, this was a nasty offence committed on the victim unprovoked as she drove away from her home.
In my view the Magistrate was not in error in taking the view, as he obviously did, that no other sentence was appropriate in the circumstances. However, the appellant is on stronger ground in the complaint that the exercise of the discretion to suspend has miscarried.
This was a case where both the prosecution and the defence addressed the court in submissions on penalty, on the common basis that an adequate sentence in the circumstances was either the recording of a conviction with a good behaviour bond, which was the position the prosecution took, or a good behaviour bond without recording a conviction which was the submission made by the appellant.
In considering the issue of suspension, the Magistrate said: “You are entitled to consideration of the suspension of that sentence. The suspension of that sentence would misrepresent the law’s condemnation and would misrepresent the community’s condemnation”.
Previously, the Magistrate said that he had accepted everything that had been put by counsel on the appellant’s behalf. In the submissions which had been put on the appellant’s behalf there were powerful reasons which might have attracted the exercise of the discretion to suspend in the appellant’s favour. Those matters included the uncontested facts that the appellant was only 19 when the offence was committed, he had no previous relevant criminal history, he had never been given the benefit of a bond with good behaviour before or, in fact, a suspended sentence, he pleaded guilty promptly, he cooperated with the police, the offending was out of character and there has been no further contact between the appellant and the victim since.
Although the appellant had some history as a juvenile of mental health issues which necessitated his enforced hospitalisation in the Women’s and Children’s Hospital, his mental health was and currently is stable. Drugs and alcohol were not involved in the offending.
He had the support of his family and in fact resided with his grandfather. I was informed in more detail today on the hearing of this appeal that in fact, although the attack was inexcusable and unprovoked, there had been a history between the couple of contact in the previous weeks, to the extent that the victim’s current boyfriend had threatened the appellant. That was the background and the context in which the offences were committed.
While the attitude of the prosecution was not and could not be determinative of the sentence and the Magistrate was certainly not obliged to act upon any concession of the prosecutor, it was nevertheless, in the particular circumstances of this case, a matter of some weight which the Magistrate was entitled to take into account and in my view properly should have taken into account.
The difficulty given the brevity of the Magistrate’s remarks is that there is no indication of what particular matters his Honour took into account in determining, as he apparently did, that there was no good reason to suspend. It might be said that it is implicit in the reasons of the Magistrate that he did find that there was no good reason to suspend. However, in the case of a young man who is about to be imprisoned for the first time, I consider that more was required in the circumstances.
I refer now to the remarks of Olsson J in Ienco v Kraft[1] which I was referred to this morning:
It should also be said that the clear policy of the Criminal Law (Sentencing) Act 1988 is that offenders should only be required actually to serve custodial sentences either because the inherent seriousness of the offending clearly demands such an approach or, alternatively, because the conduct of an offender and the relevant circumstances in general inexorably point to that course as a necessary sentencing strategy of last resort. The whole tenor of the statute 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.
I agree with those remarks.
[1] Ienco v Kraft (1990) 53 SASR 40 at 44-45.
The appellant was entitled to a clear explanation why in all of the circumstances the combination of mitigating factors put on his behalf did not amount to good reason to suspend the sentence of imprisonment.
For those reasons I am satisfied that the Magistrate has erred in that it is not apparent from his reasons why the accumulation of all the circumstances here did not constitute good reason to suspend. In these circumstances I have a real doubt whether his Honour did in fact turn his mind to all of the relevant considerations under s 38 of the Criminal Law (Sentencing) Act 1988 (SA).
In particular, the reasons of the Magistrate do not reveal how, in the circumstances, suspension of the sentence of imprisonment would misrepresent the law and the community’s condemnation of the appellant’s offending. A suspended sentence of two months imprisonment, particularly for a young man without any prior convictions is a real sentence, as this Court has often enough observed.
Should the bond to be of good behaviour be breached in any way, then the offender stands to be imprisoned in accordance with the suspended sentence. On any view of the matter this is a real punishment.
For all of those reasons, I consider the appeal should be allowed. Therefore I make the following orders:
1The appeal is allowed.
2The head sentence of two months imprisonment under the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) is confirmed.
3I order that the sentence be suspended on the appellant agreeing to enter into a bond in the sum of $500 to be of good behaviour for a period of 18 months.