SIZE v POLICE - [2012] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SIZE v POLICE
[2012] SASC 167
Judgment of The Honourable Justice Vanstone
20 September 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - appellant sentenced by magistrate for a serious assault and for dishonesty offences committed six months later - appellant 22 years of age - sentences totalling 15 months with a non-parole period of six months imposed - whether sentences for the two episodes of offending were rightly accumulated - whether individual sentences were excessive - whether sentences should have been suspended having regard to appellant's relative youth and steps towards rehabilitation.
Held: no error of approach by magistrate - appeal dismissed.
Attorney-General v Tichy (1982) 30 SASR 84, applied.
Birch v Fitzgerald (1975) 11 SASR 114, discussed.
Toarmina v Cameron (1980) 24 SASR 59; R v Weaver (1973) 6 SASR 265, considered.

SIZE v POLICE
[2012] SASC 167
Magistrates Appeal

VANSTONE J: The appellant pleaded guilty in the Magistrates Court to various offences occurring on three separate occasions. The most serious was an aggravated assault causing harm committed upon a school teacher who was escorting a group of students on an excursion. The total penalty imposed was an immediate custodial sentence of 15 months imprisonment with a non-parole period of 6 months. In appealing against that sentence, the appellant principally argues that the magistrate erred in failing to find good reason to suspend the sentence. Additionally, he argues that the sentences making up the total were manifestly excessive, or, at least, should have been made wholly, or at least partly, concurrent.
Background
The assault was committed on the afternoon of 11 November 2010 at the BP Roadhouse at Blanchetown. At about 4 o’clock on that day the victim (V) was at the roadhouse with a group of high school students who were on an excursion. The appellant was with two male friends and they were seen to be jostling with one another in the carpark. The appellant spoke to V in a manner which V described as “civil”. Then the appellant and his friends were seen to drive away from the roadhouse. However, they straight away returned and, while the two friends stood by, the appellant charged at V, punching him to the head and causing him to hit a wall behind him. Thereupon V slumped to the ground unconscious and bleeding from cuts to the face and to various parts of his right side. A student went to his assistance. These events were caught on closed circuit television.
The circumstance of aggravation was that the assault was committed in company with the other two men. The maximum penalty for aggravated assault causing harm is four years imprisonment.
Several months later, and on 25 March 2011, the appellant breached the terms of a bail agreement associated with another charge or charges which were not before the magistrate. The magistrate described the breach as being “at the lowest end of the scale” and the appellant was convicted without penalty. No complaint is made about that disposition.
Then, on about 31 May 2011, in the night, the appellant gained entry to the premises of Sutton Ford at Waikerie, by cutting barbed wire on top of the perimeter fence and then scaling it. He illegally interfered with two vehicles in the compound and removed a stereo unit from one of them. DNA evidence led to his apprehension. He pleaded guilty to being unlawfully on premises, two counts of illegal interference – all those offences carrying a maximum penalty of two years imprisonment – and theft of the stereo. That last offence carries a ten year maximum sentence.
It was said that the appellant was intoxicated on the occasions of both the assault and the Sutton Ford offences.
The appellant entered his pleas of guilty to all six offences on 10 June 2011, being some seven months after having committed the assault.
In careful and detailed reasons, the magistrate explained the process by which he arrived at the sentence. He accepted that the appellant was contrite, but he found that the penalty to be imposed was required to act as a deterrent both to the appellant and generally. In relation to the assault he indicated that, in recognition of the appellant’s plea of guilty and the fact that he had spent four days in custody upon being arrested, he had reduced what would have been a sentence of 12 months to one of 9 months imprisonment. For the Sutton Ford offences the magistrate determined that it was appropriate to set one penalty and indicated that he had reduced a notional sentence of nine months to one of six months on account of the pleas of guilty. The magistrate then considered the question of concurrency and determined that the two sentences should be served consecutively. He fixed a non-parole period of six months. Finally the magistrate considered the question whether there was good reason to suspend the total head sentence of 15 months imprisonment. He did not find good reason to do so and ordered that the sentence commence forthwith.
The appellant was 22 years old at the time of the offending and 23 years of age at the time of sentence.
Arguments on appeal
There was a good deal of very positive material of a personal nature which was put before the magistrate and accepted by him. Counsel appearing upon the appeal, Mr Heffernan, emphasised these matters as both dictating the suspension of the final sentence and also supporting his submission that the individual sentences imposed and the total were excessive.
Mr Heffernan referred to the fact that at the time of the assault the appellant had what the magistrate described as “no relevant prior convictions”. Both a psychiatric report and a pre-sentence report had been placed before the magistrate. In his psychiatric report Dr Raeside expressed the view that there was no evidence of the appellant suffering from a psychiatric disorder and that the main risk factor in terms of future offending related to excess use of liquor. The magistrate accepted that since committing the offences the appellant had left the Riverland and established himself in Adelaide, living with his girlfriend and young brother. He had obtained a “security licence” and a “welding certificate” and had found employment. He had decreased his use of liquor and achieved a more positive and stable attitude of mind. Mr Heffernan referred to Toarmina v Cameron (1980) 24 SASR 59 and R v Weaver (1973) 6 SASR 265 in support of his argument that the sentence should have been suspended, particularly having regard to the appellant’s age.
Counsel argued that in view of the fact that the assault was an isolated one, there was no need to reflect personal deterrence in the sentence.
Mr Heffernan submitted that just as the matters favourable to the appellant had apparently led to the non-parole period being a low proportion of the head sentence, so those factors should have more powerfully informed the head sentences.
Analysis
I deal first with the length of the individual sentences.
I do not agree with the submission that there was no need to impose a penalty which would deter the appellant from offending in this way again. The assault was entirely unprovoked; it was carried out in company with two others and it left the victim unconscious. I consider that personal deterrence had to figure in the formulation of the sentence.
It is true that there was much to be said in the appellant’s favour. His attempts to equip himself for employment and to find work were laudable. His pleas of guilty and contrition were noted by the magistrate as was his relatively young age. All those matters had to be weighed and considered along with the seriousness of the assault and with the subsequent offences. However, I cannot agree that a starting point of 12 months imprisonment for the assault was indicative of error. The sentence of nine months, against a maximum penalty of four years, was within the range of the magistrate’s discretion. Much the same could be said of the sentence for the Sutton Ford offences. Those were, additionally, committed while the appellant was on bail for the assault charge.
Dealing with the issue of whether the sentences should have been ordered to be served concurrently, it should immediately be observed that not only was the assault of a quite different nature from the illegal interference, unlawfully on premises and theft offences, but the two incursions were separated by over six months. In those circumstances principle would generally require that the respective sentences be served cumulatively: Attorney-General v Tichy (1982) 30 SASR 84, 92-93. I accept that this is not an invariable rule. Here, there was no reason why the usual rule should not apply. Indeed, in my view it would have been inappropriate to order concurrent sentences. However, having said that, plainly, the final sentence had to be no more than was appropriate for the entirety of the criminal conduct.
I turn then to the main argument, being that such were the factors favouring suspense, it was an error not to find good reason to suspend the sentence.
In Birch v Fitzgerald (1975) 11 SASR 114 Bray CJ considered the appeal of a man who had been sentenced to two months imprisonment for common assault. There, as here, the assault was a relatively serious one of its type, although at that time the maximum penalty for common assault was just one years imprisonment. Declining to allow the appeal for the purpose of suspending the sentence, the Chief Justice noted that assaults involving violence could properly lead to immediate custodial sentences, even for relatively youthful first offenders. Bray CJ said (at 116-117):
Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated.
I consider that in the present case, even had the assault stood alone, it would have been open to the magistrate to decline to find good reason to suspend. However, the commission of the subsequent offences, including the breach of bail, were relevant to the issue of suspension; both as to the level of contrition demonstrated by the appellant and also to the likelihood of the commission of offences in the future. So too was the fact that the plea of guilty to the assault occurred many months after its commission, even though it was plain that it was entirely unprovoked and committed in the presence of many witnesses. Far from finding that the magistrate must have suspended this sentence, I am of the view that to have done so would have been surprising. I say that even having given full weight to the relatively young age of the appellant and to the need for rehabilitation to be a prominent consideration in the sentencing of young offenders, as well as the positive steps taken by the appellant since this course of conduct.
While I agree with counsel that the matters of a personal nature were relevant to both the head sentence and the non-parole period, they bore greater weight when the magistrate came to consider the non-parole period. The ratio of head sentence to non-parole period does not, in my mind, indicate any error of approach. Rather, it signifies an appropriate recognition of the scope for the appellant’s eventual rehabilitation.
Conclusion
The appeal must be dismissed.