STANFORD v Police - [2014] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STANFORD v POLICE
[2014] SASC 4
Judgment of The Honourable Justice Anderson
21 January 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
EXCESSIVE RETALIATION BY A POLICE OFFICER
Appeal from the sentence of a magistrate who convicted the appellant, a police officer, of aggravated assault. The appellant was convicted on the basis he struck the victim and spoke offensively to her in the course of her arrest. The magistrate sentenced the appellant to 7 months imprisonment, suspended on a bond of good behaviour for two years. The appellant appeals for the sentence to be set aside and resentenced with no term of imprisonment, or alternatively reduced. The appellant appeals on the basis that the magistrate erred in his assessment of the offending.
Held: Appeal allowed. The appellant is still to be sentenced to a term of imprisonment. The term of imprisonment is reduced from 7 months suspended to 2 months suspended with the 2 year good behaviour bond continuing.

STANFORD v POLICE
[2014] SASC 4
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant was found guilty of one count of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) following a trial in the Magistrates Court. At the time he was convicted and at the time of the offending the appellant was a serving police officer within the South Australian Police Force. The offence was an aggravated offence because the appellant was a serving member of the police force. The maximum penalty for the aggravated offence is imprisonment for a maximum of 3 years.
The magistrate convicted the appellant and sentenced him to a term of 7 months imprisonment. He suspended the term of imprisonment on the appellant entering into a bond to be of good behaviour for 2 years.
The appellant appeals to this Court and asks that the sentence be set aside. He asks that he be re-sentenced and that there be no term of imprisonment. In the alternative he claims that the term of imprisonment is manifestly excessive and that it should be reduced.
Background
The findings of the magistrate in recording a conviction are set out in His Honour’s reasons dated 25 June 2013 and it is a convenient way of summarising the events leading up to the incident for which the appellant was convicted. There is no challenge to these findings.
I therefore set out the magistrate’s findings from paragraphs [248] to [268] inclusive.
[248]I make the following findings:
[249]Chloe Reynolds had been out with two friends, Alexandra Corban and Constance Hua. They had been drinking, and Ms Reynolds and Ms Corban were affected to a limited extent by alcohol.
[250]Ms Reynolds became involved in an incident with a group of males, one of whom in particular had disparagingly referred to her and Ms Corban as lesbians and ‘dykes’.
[251]Ms Reynolds became embroiled in an argument with one of the males, assaulting him and damaging the window of his van.
[252]Ms Reynolds and her friends left the area but returned a short time later.
[253]Ms Reynolds was spoken to by the defendant and made immediate admissions to assault and property damage against the male.
[254]She was handcuffed to the rear and lawfully arrested by the defendant; placed in a police sedan and guarded by Constable Trnovsky.
[255]The defendant then spoke to Ms Corban, and sought to obtain her personal details.
[256]Some confusion arose between the defendant and Alexandra Corban as to Alexandra Corban’s address, the two of them argued and the defendant placed her under lawful arrest.
[257]The defendant then used excessive force in effecting this arrest, grabbing Ms Corban very tightly on her upper arm, causing her pain and discomfort and then forcing her arm or arms behind her back.
[258]The defendant forcefully pulled Ms Corban to the police vehicle and forced her on to the bonnet, still using excessive force. This led to Ms Corban crying out in pain.
[259]Ms Reynolds expressed her concern about the defendant’s behaviour to Constable Trnovsky, who left the police vehicle to approach the defendant and Alexandra Corban.
[260]Ms Reynolds followed immediately after, without Constable Trnovsky’s knowledge.
[261]Ms Reynolds head butted the defendant to the nose and mouth area, causing bleeding and pain.
[262]The defendant forcefully and lawfully took Ms Reynolds to the ground, in order to prevent a further assault.
[263]The defendant lost control and, whilst straddling Ms Reynolds, who was on her back, struck her to the head in anger.
[264]Although the defendant denied striking Ms Reynolds, the defence has maintained that he was acting in self defence and that the court must consider the application of both section 15 and 15A of the Criminal Law Consolidation Act 1935. Once self-defence has been raised by the defence it is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
[265]I am satisfied beyond reasonable doubt that the defendant, in striking Ms Reynolds, did not genuinely believe his conduct to be necessary and reasonable. I am also satisfied beyond reasonable doubt that the defendant’s conduct was not reasonably proportionate to any threat constituted by Ms Reynolds’ head butting the defendant. By the time that the defendant struck her, she had been restrained and subdued, and at this time he was not acting in self defence. Nor was he still carrying out his duty to restrain and re-apprehend Ms Reynolds.
[266]The defendant called Ms Reynolds a ‘stupid fat lesbian’.
[267]The defendant radioed for immediate assistance.
[268]Senior Constable Harwood arrived and provided assistance to the defendant by restraining Ms Reynolds’s legs, placing her on to her stomach and helping the defendant to take her to a caged car.
At the time of sentencing the appellant was aged 32. He had been a member of the police force since 2007 and became a senior constable in 2009. He held that rank at the time of the offending. He is currently engaged to be married and has three children from a previous relationship. He has custody of those children for four nights every fortnight. He is clearly a highly regarded member of the community as evidenced by the references provided on his behalf. He is to be sentenced on the basis that he is a person of good character.
The events which gave rise to the charge all took place within a short period of time. The magistrate in his sentencing remarks summarises his earlier findings and reasons for judgment dated 25 June 2013 at paragraph [2]:
[2]… To very briefly summarise those findings, after lawfully arresting Ms Reynolds, she was handcuffed to the rear and placed in a police sedan by Constable Trnovsky. You then placed her girlfriend, Ms Corban, under lawful arrest. However, you then used excessive force in effecting her arrest, causing her pain and discomfort. Constable Trnovsky approached you and Ms Corban. Ms Reynolds followed immediately after and headbutted you to the nose and mouth, causing you bleeding and pain. You forcefully and lawfully took Ms Reynolds to the ground in order to prevent a further assault, and in that context you lost control, and whilst straddling Ms Reynolds (who was on her back handcuffed to the rear) you struck her to the head in anger. You also at some point called her a ‘stupid fat lesbian’.
Arguments on appeal
Ms Fuller, who appeared for the appellant, argued that the magistrate erred in his assessment of the appellant’s offending. She argued that a sentence of imprisonment was not the only sentencing option available to the magistrate. She referred to s 11(4) of the Criminal Law (Sentencing) Act 1988 (SA) and submitted that the magistrate clearly must have found that the offence was of such gravity that a term of imprisonment was necessary. She referred to the decision of Hook v Ralphs (1987) 45 SASR 529 at 542 where von Doussa J, in dealing with a police officer convicted of assault, made comments about the magistrate’s assessment of the factual situation. His Honour said at 542:
In a sense, the appellant's conduct was inexcusable; but his assessment conveys the impression that the appellant's conduct was to be likened to acts of unprovoked gratuitous thuggery, which made a custodial sentence a necessity on the ground of general deterrence. Had the appellant’s assault been a premeditated one committed on a prisoner in custody, or had it been committed after there had been time for raised tempers and the excitement of the victim's apprehension to die down, then it would have been such a case.
His Honour determined that it was not such a case and went on to say:
The heat of the struggle was still present. At the time of the head striking the struggle to handcuff Smith was still in progress.
As a result His Honour drew the distinction between “assaults occurring in these two quite different situations has been recognised as relevant in fixing sentence in the case of persons who assault police officers in the execution of their duty.
Ms Fuller relied on those comments and also the comments of von Doussa J in Clark v Baehnk (1987) 134 LSJS 229. In this decision, an offender appealed his sentence against assault of a police officer. Von Doussa J at 231 again distinguished between offences arising in the course of a struggle between police and offender, and acts of gratuitous thuggery. His Honour also noted in 232 the importance of the proposition that police officers going about their duty must have the full protection which the law can offer them. Ms Fuller submitted that in that case von Doussa J still distinguished the offences against the police as not entirely divorced from the struggle that had occurred previously, even though a significant period of time had elapsed thereafter. Ms Fuller submitted that in the present circumstances, the offences committed were clearly in the heat of the struggle.
Ms Duong for the respondent submitted that it had not been shown that the magistrate erred. She indicated that it was a matter of discretion as to whether the magistrate should impose a term of imprisonment as a penalty and nothing has been demonstrated to show that it was inappropriate. She referred particularly to the element of general deterrence which takes on a particular importance in the case of a police officer.
Ms Fuller on the other hand submitted that there was no particular tariff or standard and that it was not a necessity that there should be a term of imprisonment. She argued that it was only imposed because the magistrate incorrectly construed the sequence of events and punished the appellant for his behaviour towards Ms Corban just before the head-butting incident.
On this aspect the magistrate, in concluding that a sentence of imprisonment was appropriate, said at [9]:
[9]… Clearly, the offence is serious, and is aggravated by the fact of your position at the relevant time. Whilst you, in striking Ms Reynolds, lost control after you had been headbutted by her and were consequently bleeding, shocked and no doubt in considerable pain, it was your earlier unwarranted and unjustified conduct towards Ms Corban which led to Ms Reynolds’ unlawful assault on you. Whilst it does not in any way excuse her having headbutted you, your earlier behaviour set the atmosphere or scene in which events were unfortunately able to rapidly spiral out of control.
Ms Fuller submitted that the magistrate erred in that, whereas the comments set out above are relevant to whether the sentence should be suspended, they are not necessarily relevant in relation to the decision as to whether a sentence of imprisonment should be imposed.
The real question in this matter is whether the appellant’s actions in retaliation were done in the heat of the moment. I think they were done in the heat of the moment. However, that does not necessarily mean that it is excusable. The role of a police officer is to remain calm under pressure and not to be influenced by any personal discomfort he or she may suffer. This may seem harsh but it is part and parcel of a police officer’s duties. It is understandable that a police officer may retaliate when head butted but there were ways and means of dealing with the situation without the force and offensive comments used by the appellant.
A police officer is often placed in a difficult situation when provoked by words or actions by a member of the public. The words or actions by the member of the public may be offensive, unwarranted and contrary to the law. To some extent the police officer must turn the other cheek. If an officer provoked by words or actions goes beyond what is necessary to restrain the offender and maintain the peace he or she must be dealt with appropriately.
The public expects that a police officer will be fair minded and reasonable. The public trusts those who enforce the law. This trust would be undermined if it were seen that a police officer could in the course his or her duty become irrational and aggressive when provoked and yet not appropriately punished.
The question is whether in the circumstances of this matter the magistrate correctly imposed a sentence of imprisonment before deciding to suspend the sentence. Was a sentence of imprisonment appropriate?
In my view the magistrate indicated throughout his reasons that he was well aware of the relevant considerations. It is imposing too harsh a test in analysing the magistrate’s reasons to say that he improperly took a relevant matter into account on one aspect but not on the other. Overall he properly considered all relevant matters. This was a dynamic situation and must be looked at in that light. It was all over in a few seconds.
Conclusion
It is my view that a term of imprisonment was appropriate. The element of general deterrence is very important. The alternative to a term of imprisonment would be a fine and in my view that would not be sending the correct message to members of the police force or to the general public. I agree with the magistrate that a term of imprisonment was required. It was a serious lapse in the high standards of propriety expected of a police officer. He clearly lost control of his emotions and used both unjustified physical force and language unbecoming a police officer in the execution of his duties.
However, I do think that this offending falls at the lower end of a scale of excessive retaliation by a police officer. I can quite understand how the police officer momentarily lost his cool when he was head butted and was caused severe pain. For that reason and because of his good character, whilst a sentence of imprisonment was appropriate, I will reduce the sentence from the 7 months imposed by the magistrate to 2 months. In all other respects I would leave the sentence as it is, namely, that the 2 months imprisonment is suspended on the basis of the bond entered into by the appellant.
I will hear the parties on costs but it is my view that there should be no order as to costs in view of my decision.