Scott v Police - [2015] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCOTT v POLICE
[2015] SASC 103
Judgment of The Honourable Justice Nicholson
17 July 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
Appeal against sentence. The appellant was charged with the offence of basic assault causing harm. On 31 August 2013, the appellant punched the victim, a former girlfriend, with a closed fist. Following a number of adjourned hearing dates, resulting from the appellant either not attending or needing to obtain legal advice, the trial was listed for 5 February 2015. The appellant was not prepared for the trial and sought assistance from duty solicitors on the day, following which the appellant pleaded guilty to the offence. The conviction for the assault offence caused the appellant to breach a good behaviour bond supporting a one month suspended sentence. The suspension was revoked. The appellant was sentenced to 5 months imprisonment, to be served cumulatively on the one month sentence giving rise to a total immediate term of imprisonment for six months.
On appeal, the appellant contends, inter alia, that the sentence was manifestly excessive, that the appellant had been wrongly convicted for an offence of aggravated assault and that there was a miscarriage of justice in the circumstances where the Magistrate proceeded immediately to sentence rather than adjourning the matter to enable the appellant to obtain legal assistance.
Held:
1. The time under the rules within which to appeal is extended to 20 March 2015.
2. Appeal allowed.
3. The Magistrate’s sentence and ancillary orders are set aside.
4. The matter is remitted to the Magistrates Court for re-sentencing before a different Magistrate.
5. The Magistrates Court is directed to correct its file endorsements and Certificate of Record so as to accurately record the relevant offence as one count of basic assault causing harm.
Criminal Law Consolidation Act 1935 (SA) s20; Criminal Law (Sentencing) Act 1998 s 38, referred to.
Cooling v Steel (1971) 2 SASR 249; Ivanoff v Linnane (1979) 20 SASR 279; Franks v Police [1998] SASC 6897, applied.
Mellor v Police [2001] SASC 357; Vreeker v Police [2004] SASC 90; Faulds v Police [2002] SASC 251; Pezos v Police [2005] SASC 500; Datson v Police [1999] SASC 59; Pearce v Police [1996] SASC 5440, considered.

SCOTT v POLICE
[2015] SASC 103
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal, filed out of time, against a sentence imposed by a Magistrate. The appellant pleaded guilty to the offence of basic assault causing harm, contrary to section 20(4) of the Criminal Law Consolidation Act 1935. This offending caused the appellant to breach a bond to be of good behaviour which supported a suspended sentence of imprisonment for one month for driving offences. On 5 February 2015, the appellant was sentenced to five months imprisonment for the assault and the suspension of the one month sentence of imprisonment was revoked. The appellant now seeks that the total sentence of six months be set aside and that he be sentenced afresh.
Factual basis of the appellant’s breaching offending
The appellant is 29 years of age. On 31 August 2013, he punched his former girlfriend following a verbal altercation. He and the victim had been together for only a short period of time and had separated two weeks prior to the assault. The victim, along with others, was at the home in which she and the appellant lived with his mother. The appellant arrived and entered at the time the victim and a friend were leaving through the front door. The victim, in passing, spoke to the appellant. When she and her friend were halfway down the driveway, the appellant came running from the house and punched the victim with a closed fist to her right eye causing her to fall to the ground. The appellant then took off in his car. The victim was taken to hospital where she received treatment for a broken nose, fractured eye socket and a very swollen eye which she was unable to open for several days.
The appellant, in an affidavit sworn 22 May 2015, read on the appeal, sought to provide some context to his offending. He said that upon arriving at his mother’s house he was quite upset because he had just learnt that his then girlfriend had miscarried. As he was talking to his mother, the victim and the friend made some insulting remarks to him, including that he was “nothing but a xxxx wannabe”.[1] He could not tolerate being insulted in this way because of the news he had just received about his girlfriend’s miscarriage and the fact that he was under the influence of the drug ice. He said that he ran out of the house towards the victim with the intention of yelling at her but he was so overcome with anger that he punched her with a closed fist.
[1] It was explained by counsel for the respondent during submissions, at the appeal, that the term “xxxx” is a reference to a postcode of a particular area in suburban Adelaide which area purportedly has ties to a notorious criminal gang. In any event, it is evident that the remark had an upsetting connotation for the appellant.
The Magistrates Court proceedings
The main issues that arise on this appeal turn on the manner in which this matter proceeded in the Magistrates Court and the circumstances in which the appellant ultimately came to be sentenced. It is therefore necessary to traverse, in some detail, a chronology of the appellant’s appearances in the court below.
The appellant first appeared in relation to the assault charge, unrepresented, in the Elizabeth Magistrates Court on 24 February 2014. The matter was stood over to enable him to obtain legal advice. On 25 March 2014, the appellant again appeared unrepresented, but advised the court that he had found a lawyer whom he named. The matter was again stood over to enable the appellant to obtain legal advice. However, the appellant was still unrepresented on the occasion of his next appearance on 22 April 2014. The appellant told the court that he had been directed to seek an adjournment on the basis that the firm’s solicitor allocated to the case was not available that week.
The matter was again adjourned, to 19 May 2014. However, on that date, the appellant again appeared unrepresented. The appellant indicated to the court that he was saving the money needed to secure the services of his lawyer. He had saved $400 but required a further $700. The appellant advised the court that he would see if his lawyer, at least, would assist with respect to the pre-trial conference scheduled for 11 July 2014 on the basis of the $400 then available.
The appellant did not attend the pre-trial conference on 11 July 2014 and a warrant was issued for his arrest. On 22 July 2014, the appellant appeared ex-custody and was granted bail to enable him to obtain legal advice. The matter was adjourned to 3 September 2014 at which time the appellant again failed to attend and another warrant was issued for his arrest.
On 9 September 2014, the appellant appeared ex-custody and was again granted bail to allow him an opportunity to obtain legal advice. The matter was adjourned to 22 October 2014, at which time the appellant again appeared unrepresented. A pre-trial conference was scheduled for 13 November 2014, on which occasion the appellant was still unrepresented. At the conference the appellant was advised that all police disclosures had occurred, that the trial was listed for 5 February 2015, and that if he intended to call any witnesses, he should bring them on that date.
The appellant appeared on the day of trial but was unrepresented and unprepared. After speaking separately with two duty solicitors at the court, the appellant elected to plead guilty to the charge of basic assault causing harm. The prosecution thereupon pressed an application ore tenus for breach of the suspended sentence bond. The bond had been imposed with respect to two offences of driving disqualified. The appellant admitted the breach.
The Magistrate revoked the suspension of the one month term of imprisonment. In relation to the breaching offence, the Magistrate recorded a conviction and imposed a sentence of five months imprisonment to be served cumulatively. The total sentence of six months imprisonment, was to commence on the day of sentencing. The Magistrate also ordered that the appellant pay the Victim of Crime Levy and prosecution fees in the amounts of $520 and $100 respectively.
The appeal
The notice of appeal, filed 20 March 2015, contains a number of grounds of appeal which can be distilled to the following.
(i)The sentence of 6 months imprisonment was manifestly excessive.
(ii)The appellant was wrongly convicted of the offence of aggravated assault causing harm given that the victim was not a spouse, former spouse, domestic partner or formed domestic partner of the appellant.[2]
(iii)There was a miscarriage of justice given the circumstances in which the appellant pleaded guilty to the charge and the manner by which the oral application for breach of bond was pursued.
(iv)The Magistrate erred in proceeding to sentence the appellant on that day in circumstances where there was a significant prospect of imprisonment and the appellant was unrepresented.
(v)The Magistrate failed to consider and apply section 38(2a) of the Criminal Law (Sentencing) Act 1988, with a view to partially suspending the term of imprisonment imposed.
[2] This ground of appeal relates to apparent administrative errors contained within the lower court file. Whilst the Information on which the appellant was charged shows the appellant to have been charged with one count of basic assault causing harm, the Certificate of Record and the file endorsements for each court hearing list the charge as an aggravated assault causing harm. It is common ground that the victim was not the domestic partner or former domestic partner of the appellant. At the hearing of the appeal, both parties were in agreement that there had been only an administrative error and that the Magistrates Court file should be amended so as to correctly record that the appellant had been charged, and only pleaded guilty to the basic form of the offence. I deal with this issue later in these Reasons.
After I reserved my decision, I received a further written submission from the respondent in which it conceded that the appeal should be allowed and the appellant re-sentenced.
Notwithstanding the terms of ground (iii) above, the appeal is only against sentence and not conviction. During the hearing of the appeal, counsel for both parties agreed that, if I were to allow the appeal, the matter should be remitted to the Magistrates Court for re-sentencing before a different Magistrate.[3] Counsel for the appellant indicated that, if the matter were to proceed by way of resentencing, he had been instructed to obtain and put before the Court additional material relevant to sentence. These are the orders I have decided to make. However, given the Crown’s concession I will largely limit my consideration to ground (iv) above.
[3] In any event, the sentencing Magistrate has since retired.
Circumstances surrounding the sentencing in the Magistrates Court
Affidavits by the police prosecutor, the appellant, the appellant’s mother, and the appellant’s sister were read at the appeal.
The appellant’s mother deposed to receiving a telephone call from the police prosecutor in the days leading up to the trial. She said that the prosecutor indicated that if the appellant were to plead guilty to the assault charge they would offer him a suspended sentence in return. The appellant deposed to having a telephone conversation with the prosecutor the night before the trial, during which she said that, if he were to plead guilty, it would look better for him and he would get a suspended sentence.
The prosecutor deposed to speaking with the appellant’s mother several days before the trial commenced. She said that during the conversation she discussed the prosecution’s attitude towards the suspension of any term of imprisonment that may be ordered. The prosecutor advised the appellant’s mother that if the appellant pleaded guilty to the charge, before requiring the victim and the witnesses to attend the trial and give evidence, she would ask that a suspended sentence be imposed to enable the appellant the opportunity of receiving necessary rehabilitation assistance. The prosecutor said that the appellant’s mother said she would get her son to call her but he never did.
On 5 February 2015, the appellant arrived at the Elizabeth Magistrates Court unrepresented. During the course of the hearing a number of adjournments were granted by the Magistrate in order to allow the appellant to seek legal advice from the duty solicitors working at the court. In his affidavit the appellant deposed to speaking separately with two duty solicitors. One of those solicitors requested an adjournment of the matter, which the Magistrate declined on the basis that the matter had been before the courts for too long.
After one of the morning adjournments, the appellant went back into court having decided to plead guilty to the assault charge. The appellant was asked to enter the dock by the Magistrate. The prosecutor commenced her submissions on sentence. She informed the Magistrate of the factual basis of the offending by reading from the Apprehension Report. She tendered photographs of the victim’s injuries and the relevant medical notes for those injuries, and read from the appellant’s Offender History Report. The prosecutor then, without notice, applied for the enforcement of the appellant’s breach of his suspended sentence bond. The appellant admitted the breach. The Magistrate and the appellant then proceeded to have a long discussion about the allegations in relation to the assault charge, the victim’s injuries, the appellant’s personal circumstances and possible penalties. The Magistrate then sentenced the appellant. Notwithstanding anything the appellant might have had to say, the Magistrate was clearly of the view that a term of imprisonment should be imposed. His Honour observed as follows.[4]
The offending is very serious, there is no doubt whatsoever that a term of imprisonment is appropriate, it is a question of what length of imprisonment and also whether there are any proper grounds for me to consider suspending the term of imprisonment that I impose.
[4] Police v Scott MCPAR-14-888, Remarks on Penalty, 5 February 2015, at [13].
Consideration
The appellant pleaded guilty on the day of trial not having expected to do so and not having planned for this eventuality prior to arriving at court on the day of trial. He was then confronted, without notice, with an application for breach of the suspended sentence bond which breach was based on his late plea of guilty. On the assumption that the bond was in proper form and had been properly entered into, there would be no question that the offence of assault, to which the appellant had just then pleaded guilty, caused him to breach the bond. However, once the pleas were in there were a number of potential sentencing outcomes.
The matters to have been considered, and with respect to which the appellant would have been entitled to adduce material evidence or to make submissions, included at least the following:
(i)factual matters of mitigation, including evidence of a medical condition from which the appellant allegedly suffered;
(ii)the extent to which the factual basis for the offending, asserted by the prosecutor, was conceded or challenged;
(iii)whether or not a pre-sentence report should be ordered, and whether or not an opportunity to obtain character references and the like should be provided;
(iv)whether or not proper grounds existed to refrain from revoking the suspension of the one month prison sentence;
(v)whether or not suspension or partial suspension (pursuant to section 38(2a) of the Criminal Law (Sentencing) Act 1988, in the form as then applied) of any prison term imposed was available in the circumstances, as a matter of law; and
(vi)if available at law, whether or not any prison term imposed should, in the circumstances, be suspended or partially suspended.
A number of these issues would not easily be fully appreciated by most non-lawyers. It would have been beyond this appellant to have given them proper consideration on the spot, even if they had been drawn to his attention. Issues (i) and (iii), if pressed, could not have been resolved on the day in any event.
The appellant was given ample opportunity to obtain legal representation for, or otherwise to prepare as best he could to represent himself at, the trial of the offence. However, once he pleaded guilty, the situation changed. In a sense, the clock started again. The appellant should have been given a further opportunity, by way of the offer of an adjournment, in order to obtain legal representation or for himself to prepare sentencing submissions. The difficult position a judicial officer occupies when dealing with a litigant in person, in both the civil and the criminal court, with respect to a trial of issues or when conducting a sentencing hearing, is well understood. The steps to be considered and, if appropriate, undertaken by such a judicial officer have been identified in general terms in a number of authorities in this Court, including: Mellor v Police,[5] Vreeker v Police,[6] Faulds v Police,[7] Pezos v Police,[8] Datson v Police,[9] Pearce v Police (and the various earlier authorities referred to therein),[10] Franks v Police,[11] Cooling v Steel[12] and Ivanoff v Linnane.[13]
[5] [2001] SASC 357.
[6] [2004] SASC 90.
[7] [2002] SASC 251.
[8] [2005] SASC 500.
[9] [1999] SASC 59.
[10] [1996] SASC 5440.
[11] [1998] SASC 6897.
[12] (1971) 2 SASR 249.
[13] (1979) 20 SASR 279.
At the least, where a sentencing officer is contemplating an immediate term of imprisonment, the self-represented litigant should be informed of that fact and offered an adjournment in order to obtain legal advice.[14]
[14] Cooling v Steel (1971) 2 SASR 249 at 251; Ivanoff v Linnane (1979) 20 SASR 279 at 282-283; Franks v Police [1998] SASC 6897 at [19].
Wells J in Cooling v Steel[15] identified the following considerations. They are not exhaustive.
When the defendant answers to his name and the charge is read, before a plea is entered, the court should make sure that the defendant understands the nature of the charge. It is, of course, unnecessary, indeed undesirable, that the bench should deliver a lecture on the law; the charge should be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise…
Next, the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation…
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has the power to impose disqualification from holding or obtaining a driver’s licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court...
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
[15] (1971) 2 SASR 249 at 250-251.

As earlier indicated, the appeal is not against the conviction following the acceptance of the plea[16] but against sentence. Independently of the Crown’s concession, earlier noted, the appeal should be allowed. The sentencing submissions should have been adjourned to permit the appellant to seek legal advice with respect to a plea in mitigation.
[16] The appellant was given ample opportunity to seek legal advice over a lengthy period and spoke to two duty solicitors on the day.
It is true that the appellant had been very generously treated in the past in this respect and had, on numerous occasions, either been unable to, or unwilling to, take advantage of these opportunities to seek legal assistance. However, obtaining legal assistance to defend a charge at trial in circumstances, such as the present, where the Crown case is very strong, and obtaining legal assistance with respect to sentencing submissions following a plea are quite different things. The latter might be more readily available and should, ordinarily, be cheaper to procure. As it happens, the appellant has now been able to obtain legal assistance.
In any event, an adjournment would have provided time for the appellant to obtain whatever assistance might otherwise have been available so as to: obtain character references; consider whether or not to give evidence challenging the Crown factual basis; and formulate and thereafter present more targeted and coherent sentencing submissions. Further, given the appellant’s age and antecedents, and the fact that he was facing six months of imprisonment, the obtaining of a pre-sentence report may have been of assistance.
There remains the issue concerning the inaccuracies contained in the Magistrates Court file as to the nature of the charge of which the appellant has been convicted. This issue is reflected in appeal ground (ii) above and briefly described in footnote 2 of these Reasons. It is clear from a reading of the Magistrates Court file and the Magistrate’s Remarks on Penalty that the appellant was charged with, pleaded guilty to and was sentenced for, the offence of assault in its basic form. It will be necessary to make an order directing that the relevant court records be amended to reflect the correct position and to eliminate references to the aggravated form of the offence.
Conclusion
The appellant should have been allowed an opportunity to seek legal representation before the Magistrate concluded the sentencing hearing and sentenced the appellant. There has been a miscarriage of justice in this respect. I make the following orders:
(1)The time under the rules, within which to appeal against sentence, is extended to 20 March 2015.
(2)The appeal is allowed.
(3)The Magistrate’s sentence and ancilliary orders are set aside.
(4)The matter is remitted to the Magistrates Court for re-sentencing before a different Magistrate.
(5)The Magistrates Court is directed to correct its file endorsements and Certificate of Record so as to accurately record the relevant offence as one count of basic assault causing harm.
I will hear the parties on any consequential orders.