Sideridis v Police

[2001] SASC 90

SIDERIDIS v POLICE
[2001] SASC 90

Magistrate’s Appeal

1................ MARTIN J......... The appellant pleaded guilty to a number of offences.  In addition to various fines, two sentences of imprisonment were imposed and suspended.  The appellant appeals against the sentences of imprisonment on the basis that they were manifestly excessive.

1. On 11 February 2000 the appellant used a slip lane on Lonsdale Road at Sheidow Park to overtake another vehicle. In the process he cut sharply in front of the vehicle that he overtook and then travelled at 120 k/ph in a 100 k/ph zone. The vehicle he was driving was unregistered. When stopped by the police, the appellant denied the allegations and told the police they were stupid. His demeanour was aggressive and uncooperative. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the Magistrate imposed a fine of $200.

2. On 21 February 2000 the appellant attended at a Centrelink office and attempted to obtain a payment or benefit.  He became upset and started yelling at the staff.  He constantly used a four letter word in abusing the staff.  His behaviour distressed the employee who was attempting to serve him.  When spoken to by the police, the appellant responded that all he did was swear to himself in a mumble.  For the offence of disorderly behaviour, the Magistrate imposed a fine of $200.

3. On 5 April 2000 the appellant drove onto the front lawn of a private premises because he was having a dispute with a female occupant.  He deliberately spun the wheels on the lawn in the process of doing what could be described as a “burn out”.  Wheel ruts were left in the lawn.  When police spoke to the appellant on 18 June 2000, the appellant admitted deliberately driving a vehicle onto the lawn.  He said he did so after receiving a disturbing phone call from one of the occupants.  He described what he did as “one hell of a donut” and said he went around the lawn about three times in order to annoy the people who live at the premises.  The appellant knew the occupants were present at the time.  In respect of the offences of being unlawfully on premises and damaging property, the Magistrate imposed a sentence of imprisonment for one month which was suspended.

4. The final group of offences occurred during the afternoon of 8 June 2000.  The appellant rode his skate board east along the carriageway of Rundle Street, Adelaide and passed a police vehicle on the left-hand side of that vehicle.  After the appellant crossed Frome Street, the police lost sight of him briefly.  They then observed him walking east on the road with the skateboard under his arm.  When the appellant saw the police vehicle, he again started riding the skateboard and, as he crossed Rundle Street, he called out to the police “can’t stop, gotta go”.  The police eventually spoke with him on Rundle Street.  The appellant gave a false name and address.  When the police asked him to produce evidence of identity, he became aggressive and began yelling at the officer.  He walked around while yelling and pointing at the police.  He told them to “fuck off” and continued to abuse them using similar language.  He stood very close to one of the officers while shouting abuse.  A number of people were in the vicinity.

5. Pursuant to s 18A of the Sentencing Act the Magistrate imposed one penalty of imprisonment for one month to be served concurrently with the previous sentence of one month.  The sentence of one month was suspended with conditions including supervision.  The single penalty was imposed with respect to the following four offences:

   (i).... travelling on a wheeled recreational device [the skateboard] on a road with a dividing line: rule 24(1) Australian Road Rules.

   (ii)riding a wheeled recreational device whilst not wearing a safety helmet in compliance with the Road Traffic Regulations: s 162C Road Traffic Act 1961.

   (iii).. refuse name and address: s 74A Summary Offences Act 1953.

   (iv)offensive language: s 7(1)(c) Summary Offences Act.

6. The Magistrate took a dim view of the appellant’s course of offending behaviour.  Her Honour’s view was influenced by the appellant’s long history of prior court appearances.  The appellant was born on 18 January 1980.  His first offending occurred in September 1994 when he was aged 14 years.  In October 1995 he first appeared in the Children’s Court for offences of larceny and being unlawfully on premises.  Between 1995 and 1998, the appellant appeared in the Children’s Court on twelve occasions.  The number of appearances does not accurately reflect the very large number of offences that the appellant committed during that time.  In particular, in addition to numerous nuisance type offences, the appellant has committed a number of offences of larceny and being unlawfully on premises.  Over a period of approximately 5½ years the appellant has persistently demonstrated an ongoing disregard for the law and for the rights of other persons.

7. The Magistrate also had the benefit of reports from Dr Raeside dated 31 March 1998 and 19 October 2000.  Those reports disclosed that the appellant had been admitted to Glenside Hospital from 12 January 1998 to 9 February 1998, at which time he was diagnosed as suffering from a schizophreniform psychosis which is a psychotic episode similar to schizophrenia, but without the longitudinal history needed to make the latter diagnosis.  The appellant was also identified as having an Anti-Social Personality Disorder.  On that occasion he had presented with psychotic thinking as evidenced by paranoid and grandiose delusions and loosening of thought associations.  That condition had apparently been precipitated by the ingestion of LSD and amphetamines two days prior to his admission.  No further episode of that nature has occurred.

8. Dr Raeside saw the appellant on 28 September 2000.  He reported that the appellant was particularly difficult to interview.  The appellant was agitated, unsettled and angry throughout most of the interview.  Eventually he refused to cooperate and walked out.  He returned to the interview in the company of his mother who had been in the doctor’s waiting room.  Dr Raeside concluded that the appellant appeared thought disordered at times and that his conversation displayed general paranoid themes, although it was unclear whether these were delusional in nature.  The appellant called Dr Raeside later that day to apologise for his behaviour and explained to Dr Raeside that he becomes upset when talking about various topics.

9. Not surprisingly, the Magistrate arrived at the view that personal deterrence was of considerable importance.  Previous attempts to assist the appellant have failed.  Short periods of detention have not dissuaded the appellant from continuing with his unlawful behaviour.  Fortunately, the appellant has not yet graduated to more serious offending, but his attitude gives rise for considerable concern that it is only a matter of time before that graduation occurs.  The Magistrate was justified in deciding that the appellant needs a sanction to provide an incentive to improve his behaviour, together with the assistance of a community corrections officer and treatment.

10. The Magistrate was also justified in delivering blunt remarks.  It was appropriate that the Magistrate should speak in plain terms that the appellant would understand.  Having imposed the penalties, her Honour concluded her remarks by observing that the appellant has an attitude problem and that he now knows where he stands.  She then said:

    “This is a sanction to say, you change the way you behave, you button your lip when you see a police officer.  If you swear, do wheelies in people’s front lawns, travel without bus tickets, or behave like an outlaw, you will join the other outlaws at Yatala.  In relation to the probation officer, if you give them the run around you will be breaching your suspended sentence.  This is your last chance.”

11. It would have been preferable not to have referred to “outlaws”.  However, the thrust of those remarks was entirely justified.  Unfortunately, in earlier remarks her Honour sounded off at the appellant in a manner which, when the remarks are viewed in their entirety, crossed the border between robust language and language which can only be construed as insulting and inappropriate for use by a judicial officer.  I draw attention to the recent observations of Gray J in Mills v Police [2000] SASC 362 and to the authorities cited by his Honour.

12. Although, as I have said, the Magistrate should not have made some of the remarks that she addressed to the appellant, I do not regard those remarks as demonstrating that her Honour fell into any relevant error in the exercise of her sentencing discretion.  She was trying to impress upon the appellant that his behaviour was unacceptable and that he could not solve his problems in an anti-social fashion whenever he felt aggressive or defiant. 

13. As I have indicated, the need for personal deterrence had become particularly important.  Notwithstanding the appellant’s young age, if it had not been for the error in the sentencing process which I am about to identify, I would probably  not have interfered with the exercise of the Magistrate’s discretion.

14. The Magistrate erred in imposing a single sentence of imprisonment for one month in respect of a group of offences which included offences which were not punishable by a term of imprisonment. The maximum penalty for each of the two road traffic offences was a fine of $1 250. In these circumstances, s 18A of the Sentencing Act was inapplicable.  In Hermel v Police (2000) 76 SASR 336, a judgment delivered in February 2000, Duggan J held that in cases where a global term of imprisonment is imposed, the individual offences must be punishable by a term of imprisonment. His Honour determined that an offence punishable by way of a fine only cannot be one of the offences in respect of which a single term of imprisonment is imposed pursuant to s 18A. I agree with his Honour. For this reason the sentencing discretion miscarried when the Magistrate imposed the single penalty of imprisonment for one month in respect of the four offences to which I have referred.

15. In these circumstances, although the discretion miscarried only with respect to some of the offences, I consider it appropriate to exercise the sentencing discretion afresh.  The appeal is allowed and the orders of the Magistrate are set aside.

16. The offending occurred against a breakdown of a relationship which had been a stabilising influence on the appellant.  After consideration of all the circumstances of the offending and the personal circumstances of the appellant, particularly as disclosed in the reports of Dr Raeside, and after making allowance for the appellant’s plea of guilty, I make the following orders:

    (i).... The appellant is convicted on all counts.

    (ii)For the offences of exceeding the speed limit, driving without due care and driving an unregistered motor vehicle committed on 11 February 2000, (AMC-00-8593), pursuant to s 18A of the Sentencing Act I impose a fine of $200.

    (iii).. For the offence of disorderly behaviour committed on 21 February 2000 (AMC-00-9795), I impose a fine of $200.

    (iv)For the offences of being unlawfully on premises and damaging property committed on 5 April 2000 (AMC-00-10702) and for the offences of refuse name and address and offensive language committed on 8 June 2000, (AMC-00-7826), pursuant to s 18A I fix a sentence of imprisonment of 14 days.  The sentence will be suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for a period of 12 months.  During the period of the bond the appellant is to be under the supervision of a community corrections officer.  Conditions of the bond are that the appellant obey the reasonable directions of the community corrections officer as to his place of residence and as to any psychiatric or psychological treatment, counselling and therapy, particularly with respect to the consumption of alcohol and other drugs and anger management.  It is a further condition of the bond that during the period of the bond the appellant perform 100 hours of community service.

    (v).... In respect of the offences of travelling on a wheeled recreational device on a road and riding a wheeled recreational device while not wearing a helmet committed on 8 June 2000 (AMC-00-7826), no further penalty is imposed.