Stenecker v Police
[2014] SASC 68
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STENECKER v POLICE
[2014] SASC 68
Judgment of The Honourable Chief Justice Kourakis
29 May 2014
MAGISTRATES - APPEAL 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
This is an appeal against the sentence imposed by a Magistrate following the appellant’s plea of guilty to two charges of assaulting a police officer and one charge of using offensive language - the Magistrate sentenced the appellant to five months imprisonment.
Whether the Magistrate erred in failing to suspend the sentence of imprisonment as a whole; whether the sentence is manifestly excessive; whether the Magistrate erred in applying s 18A of the Criminal Law (Sentencing Act) 1988 (SA) to the charge of using offensive language in a public place. During the course of the appeal, the appellant was given permission to add an additional ground of appeal that the Magistrate had failed to consider the sentencing option of a partially suspended sentence.
Held (Kourakis CJ):
Dismissing the first ground of appeal - the Magistrate took into account all of the factual circumstances relating to the exercise of the discretion to suspend the sentence of imprisonment as a whole - therefore, it cannot be said that it was manifestly unreasonable of the Magistrate not to suspend the sentence in whole (at [11]).
There was a strong case for the imposition of a partially suspended sentence - the failure of the Magistrate to take that sentencing option into account and to provide reasons for not adopting it constitutes a sentencing error (at [15]).
The use of s 18A of the Criminal Law (Sentencing Act) 1988 (SA) was erroneous – the effect of imposing one sentence of imprisonment on all three counts is to indicate wrongly that the offence of offensive language warranted some period of imprisonment (at [28]).
The five month sentence of imprisonment is partially suspended on the appellant entering into a bond to be of good behaviour (at [35]).
For the offence of using offensive language, conviction recorded and the appellant discharged without further penalty on the appellant entering into a bond to be of good behaviour (at [36]).
Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 38, 40; Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2013 (SA); Criminal Law Consolidation Act 1935 (SA), referred to.
Birch v Fitzgerald (1975) 11 SASR 114; R v Copeland (No 2) (2010) 108 SASR 398, discussed.
Millhouse v Police (2008) SASC 353; Rysz v Police [2011] SASC 167; Wessling v Police (2004) 88 SASR 57; Carusi v Police [2002] SASC 240; Police v Golding (1999) 30 MVR 193; Hermel v Police (2000) 76 SASR 336; Police v Berzins (2011) at 111 SASR 319; R v Day (1845) 1 Cox 207; DPP v JWH (unreported, NSWSC, 17 October 1997), considered.
STENECKER v POLICE
[2014] SASC 68Magistrates Appeal: Criminal
KOURAKIS CJ: The appellant, Mr Stenecker, pleaded guilty in the Magistrates Court to two charges of assaulting a police officer[1] and one charge of using offensive language[2]. The Magistrate sentenced Mr Stenecker to five months’ imprisonment pursuant to s 18A of the Criminal Law (Sentencing Act) 1988 (SA) (the Sentencing Act). The Magistrate indicated that, but for his plea of guilty, he would have sentenced the appellant to eight months’ imprisonment.
[1] Summary Offences Act 1953 (SA), s 6(1).
[2] Summary Offences Act 1953 (SA), s 7(1)(c).
The Magistrate was invited to suspend the term of imprisonment but chose to exercise his discretion not to suspend the sentence.
This is an appeal against the sentence of imprisonment imposed by the Magistrate on 6 February 2014. The appellant relies upon the following grounds:
1The Learned Magistrate erred in failing to suspend the sentence of imprisonment;
2The sentence of 5 months’ imprisonment was manifestly excessive;
3The Learned Magistrate erred in applying s 18A of the Sentencing Act to the charge of using offensive language in a public place.
In the course of arguing the appeal, the appellant sought permission to add an additional ground that the Magistrate had failed to consider the sentencing option of a partially suspended sentence. The application was not opposed. I grant the appellant permission to amend his Notice of Appeal to add that ground.
Background
The offences arose out of a single incident which occurred outside a private residence at Aldinga Beach on 16 November 2013. The appellant was driven by his friend to the residence where police were already in attendance. Two police officers then spoke with his friend, the driver, and the appellant was asked to cease loitering.
The circumstances of the first charge were that the appellant, who was intoxicated, was asked by police to leave the public verge of an area. He did so but after about ten minutes the appellant returned. When asked why he had returned the appellant attempted to head-butt a police officer but did not make contact because of the evasive action taken by that officer. The appellant was restrained, handcuffed and placed on to the ground. He then spat at another police officer, with the spittle landing on the trousers of the officer’s uniform. Whilst waiting to be transported to the Christies Beach Police Station following his arrest, the appellant used profane and offensive language directing abuse at both police officers.
Personal circumstances
The appellant is currently 22 years old. He has a young child from a previous relationship who is almost two years old. He sees his son once a fortnight for three days. The appellant currently lives with his mother who is extremely supportive. The appellant suffered from depression and anxiety from when he was 15 years old, and became addicted to amphetamines and cannabis. He has made efforts to overcome these addictions, attending at Drug and Alcohol Services of South Australia for six months and voluntarily attending a detoxification program at Warinilla. During 2013, the appellant ceased using amphetamines and has significantly reduced his cannabis use.
The appellant also attends counselling sessions with a general practitioner to assist with the management of his mental health and to reduce his drug use. He currently takes medication for depression and anxiety.
The Magistrate’s reasons
The Magistrate imposed a single sentence of eight months’ imprisonment pursuant to s18A of the Sentencing Act, but reduced that sentence to five months’ imprisonment on account of the appellant’s guilty plea.
The Magistrate referred to the circumstances of the offending, to the appellant’s intoxication, and to his personal circumstances, including his depression and anxiety.
The Magistrate then gave his reasons for imposing the sentence of five months in these terms:
You need to learn this is not acceptable behaviour. I have heard the request that I deal with you without conviction and in my opinion that would not be appropriate. You will be convicted. In addition I am going to impose a term of imprisonment...The issue is whether I should suspend the imprisonment. I do take account of the fact you are a young man, you have family responsibilities and you suffer depression and anxiety. I do take all those things seriously. They are however in my opinion not sufficient for me to suspend this term of imprisonment and so I choose not to. You will have to serve a term of imprisonment for five months starting from today. One penalty section 18A.
Failure to suspend sentence of imprisonment
I am satisfied that the Magistrate took into account all the factual circumstances relating to the exercise of the discretion to suspend the sentence of imprisonment as a whole. Moreover, the offence of assaulting a police officer is a serious one in which general deterrence is important. It cannot be said that it was manifestly unreasonable of the Magistrate not to suspend the sentence in whole. I would dismiss the first ground of appeal.
However, the Magistrate did not expressly turn his mind to the question of partial suspension. Section 38 of the Sentencing Act provides as follows:
38—Suspension of imprisonment on entering into bond
(1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)to be of good behaviour; and
(b)to comply with the other conditions (if any) of the bond.
(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.
(2a)However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—
(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
…
(3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished …
When first enacted, s 38 provided that the length of the bond under which a sentence was partially suspended could not exceed the period of the head sentence. That restriction was removed by the Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2013 (SA) which came into effect on 24 November 2013. On the partial suspension of a sentence of imprisonment pursuant to s 38(2a) of the Sentencing Act, a bond as long as three years can be imposed in accordance with s 40 of the Sentencing Act.
The option of partially suspending a sentence of imprisonment is a very useful sentencing option in that it combines the specific and general deterrent effects of a period of imprisonment with a subsequent period of rehabilitation under supervision in the community. The utility of s 38(2a) of the Sentencing Act has been much enhanced by the capacity to impose a bond which extends beyond the length of the head sentence.
There is obvious utility in a partially suspended sentence for relatively young offenders who have not previously been imprisoned or subjected to a suspended sentence. Such a sentence usefully fixes both the deterrent and rehabilitative purposes of sentencing. In my view, there was a reasonably strong case for the imposition of a partially suspended sentence in Mr Stenecker’s case. It warranted specific and express consideration. I read His Honour’s statement “they are however in my opinion not sufficient for me to suspend this term of imprisonment and so I choose not to” as referring to the suspension of the whole of the sentence of imprisonment. In the circumstances of this case, I am persuaded that the failure of the Magistrate to expressly mention partial suspension shows that his Honour failed to take it into account. I am also satisfied that the Magistrate has erred in failing to provide reasons for not adopting it.[3] By reason of the sentencing errors I have identified, the sentence must be set aside and the appellant sentenced afresh. I will nonetheless deal with the other grounds of appeal because they raise questions of some importance.
[3] Millhouse v Police [2008] SASC 353 at [18]-[19]; Rysz v Police [2011] SASC 167; Wessling v Poilce (2004) 88 SASR 57 at 63; Carusi v Police [2002] SASC 240 at [24].
Sentence of five months’ imprisonment was manifestly excessive
The maximum penalty for the offence of assaulting a police officer is imprisonment for two years. The appellant has a prior conviction for simple assault which was dealt with without the imposition of a conviction or penalty. The appellant has not previously been sentenced to imprisonment or received a suspended sentence of imprisonment.
The first count, attempting to head-butt a police officer, must be treated as an assault constituted by causing fear of imminent harm. It was a serious offence. Head-butting is an all too frequent form of assault and can cause serious facial injuries. It was only the police officer’s swift reaction which saved him from, perhaps, serious injury. As to the second count, it may be that spitting on, or any touching of, the clothes of a person constitutes an assault.[4] If the police officer was aware that the appellant was about to spit on him, the assault might again have been constituted by an apprehension of harm. Be that as it may, the appellant pleaded guilty to that count and there is no occasion on this appeal to review the conviction.
[4] R v Day (1845) 1 Cox 207; DPP v JWH (unreported, NSWSC, 17 October 1997); Blazey-Ayoub, The Law of Spitting (1998) 22 CrimLJ 151.
The spitting was, as the Magistrate observed, particularly disgusting conduct, but resulted in more inconvenience than harm.
In Birch v Fitzgerald[5] Bray CJ said:
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.
...
As I said in Sellen v Chambers:
“Violence has increased, is increasing, and ought to be diminished, particularly violence by young men towards each other.” It may be that the incidence of such violence will be reduced if it is brought home to those likely to resort to it that if they do they may well be punching, striking, butting or kicking themselves into gaol.
(citations omitted)
[5] (1975) 11 SASR 114, 116-117.
Since those words were spoken the community’s tolerance for offences of violence has decreased. Moreover, the community has, through Parliament, expressed its concern that condign punishment be imposed for assaults on police officers and other persons who put themselves at risk of violence in the course of their execution of important public duties.[6]
[6] Criminal Law Consolidation Act 1935 (SA) s 5AA(k)(ii).
Given the greater relative weight which general deterrence must be given in sentencing for offences of assaulting police officers it cannot be said that the total sentence of five months, for both offences of assaulting a police officer, was manifestly excessive. Nor can it be said that the decision not to suspend that sentence in whole was manifestly unreasonable.
Error in application of s 18A Sentencing Act
The issue on this ground of appeal is whether the Magistrate erroneously imposed the single sentence of five months’ imprisonment with respect to the offence of offensive language.
Section 18A of the Sentencing Act provides:
18A—Sentencing for multiple offences
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
The purpose of s 18A of the Sentencing Act is to facilitate the procedural aspects of the imposition of sentences. In R v Copeland (No 2)[7] I explained the purpose of s 18A in these terms:
The power conferred by s 18A CLSA provides a procedural faculty which is calculated to avoid inadvertent error in the announcing and recording of multiple sentences and the calculation of release dates for those sentences by the correctional authorities. Section 18A CLSA does not abrogate sentencing principles governing the accumulation of sentences nor was it intended to render the sentencing process inscrutable. There is obvious utility in explaining how a single sentence imposed pursuant to s 18A CLSA is arrived at by reference to the individual sentences which would otherwise have been imposed for a series of offences. The offender, and the community on whose behalf the prosecution is brought have a real interest in knowing how the criminality, of each of the individual offences, was evaluated and the relative contribution each made to the ultimate sentence. That interest is not as acute, and the practicality of differentiating between offences is more difficult, in the case of multiple charges arising out of a single criminal episode.
(citations omitted)
[7] (2010) 108 SASR 398 at [93].
It should be observed that the effect of utilising s 18A is that the “one penalty” is imposed on all of the offences with respect to which it is utilised.
In this case, the effect is therefore to impose a penalty of imprisonment on the count of offensive language, even though the length of the imprisonment notionally attributable to that offence has not been identified.
It is clearly established that s 18A of the Sentencing Act cannot be used to impose a single penalty when some of the offences with respect to which that single penalty is imposed cannot be punished in that way. Nor should s 18A of the Sentencing Act be employed to impose a penalty on a group of offences, one or more of which would not, if dealt with individually, have attracted that penalty, even if the penalty is available as a punishment in an appropriate case.[8]
[8] Police v Golding (1999) 30 MVR 193; Hermel v Police (2000) 76 SASR 336; Police v Berzins (2011) 111 SASR 319.
The insults levelled at the police officers on which the offensive language count was based, and the circumstances in which the language was used, did not warrant a sentence of imprisonment. If a sentence of imprisonment had been imposed for that offence alone I have no doubt that it would have been manifestly excessive. Yet the effect of imposing one sentence of imprisonment on all three counts is to indicate that the offence of offensive language warranted some period of incarceration. The use of s 18A was therefore erroneous.
Resentence
In the ordinary course on resentencing for these offences I would have been inclined to impose the same head sentence as that imposed by the Magistrate for the offences of assault pursuant to s 18A of the Sentencing Act. I would have partially suspended that sentence pursuant to s 38(2a) of the Sentencing Act by ordering that the appellant be released after serving two months of that term of imprisonment. I would have imposed a bond for a period of two years with a term that the appellant undergo supervision during that time.
However, I have received, by consent for the purposes of resentencing, the report of the psychologist, Mr Balfour. Mr Balfour reported that Mr Stenecker does not suffer from any psychotic illness, acquired brain injury or serious personality disorder but that he is prone to feeling depressed and anxious and suffers from a long-term mood dysthymia. According to Mr Balfour, the appellant’s drug abuse is a form of self-medication for that condition. Mr Balfour holds the opinion that the appellant’s psychological disorders most probably arise from his learning disabilities.
Mr Stenecker informed Mr Balfour that during the period of one day and one night in which he was remanded in custody he became extremely distressed and acutely suicidal. Mr Stenecker gave an account, in detail which has the ring of truth, of his experience on remand:
He had thought of how he would end his life. He quickly reasoned it was difficult to hang himself. He has thought about sharpening an object like a toothbrush, but his cell walls had been painted with smooth paint making it very hard to file an object into a sharp implement. He said that he had four different cell mates within the space of 24 hours. He felt frightened. He spent all his time in his cell watching television and he avoided talking to others.
Mr Balfour commented on Mr Stenecker’s experience in these terms:
I believe the unique stressors associated with incarceration had exacerbated his existing mental health problems causing a deterioration in his mental state. If he is re-imprisoned, his mental state would need to be closely monitored by the prison medical services to ensure that he does not become acutely suicidal.
Later, Mr Balfour reported:
Mr Stenecker has had a traumatic taste of incarceration. He is terrified of being reincarcerated. When combined with a comprehensive rehabilitation program, I believe that his fear of incarceration could be used as an effective personal deterrent against further offending behaviour …
The seriousness of his current legal circumstances has had a salutary effect upon him.
Mr Balfour proffered the opinion that the appellant’s prognosis to cease offending is fair to good. In his report, Mr Balfour made a number of recommendations concerning the terms and conditions which might appropriately be placed on any bond should Mr Stenecker be released. I have taken into account those recommendations.
The appellant has already been exposed, albeit briefly, to the harsh reality of imprisonment. His very deeply felt distress during that period is good reason to depart from the course I would otherwise have adopted of partially suspending the sentence of imprisonment. I am satisfied that the deterrent effect of imprisonment would not be enhanced by a further period of incarceration in his particular case. For that reason, in the unique circumstances of this case, on resentencing, I will suspend the whole of the five month sentence of imprisonment on the appellant entering into a bond for a period of two years to be of good behaviour on the conditions that he:
·be under the supervision of the Department of Correctional Services;
·comply with the reasonable directions of the probation officer assigned by the Department of Correctional Services (his probation officer) with respect to obtaining treatment from the Drug and Alcohol Services Council and any other agency or service which provides treatment for drug or alcohol addiction;
·attend any financial counselling sessions or courses as directed by his probation officer;
·attend any cognitive behavioural therapy arranged by his probation officer;
·consult a medical practitioner for the purposes of entering into a mental healthcare plan and that he attend any appointments arranged pursuant to that plan;
·take all reasonable steps to enrol in publically available literacy and numeracy courses provided by an accredited educational or training institution for the purpose of improving those skills.
For the offence of using offensive language I would record a conviction and discharge the appellant without further penalty upon condition that he enter into a bond to be of good behaviour for a period of two years.
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