Stewart v Police - [2005] SASC 487

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STEWART v POLICE
Judgment of The Honourable Justice Duggan
22 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appellant sentenced to 2 months' imprisonment, suspended upon him entering into a 12 month good behaviour bond in sum of $200 for offences including hindering police and disorderly behaviour- appeal on grounds that the sentence was manifestly excessive and magistrate erred in imposing a sentence of imprisonment - magistrate erred in failing to consider alternative penalties other than imprisonment - appeal allowed and sentence set aside - appellant required to enter into a recognisance in sum of $200 to be of good behaviour for two years and to come up for sentence if called upon - further conditions include performing 120 hours of community service within 18 months.
R v Harris & Symonds (1992) 59 SASR 300, applied.
Scott v Police (1993) 61 SASR 589; Giles v Barnes [1967] SASR 174; Moore v Materna (1996) 136 FLR 142, considered.

STEWART v POLICE
[2005] SASC 487
Magistrates Appeal

DUGGAN J.  The appellant appeared before the Whyalla Magistrates Court charged with the following offences:
(1)    Hindering police officers in the execution of their duty, disorderly behaviour and wilful damage on 20 February, 2005.
(2)    Disorderly behaviour on 9 April 2005.
(3)    Disorderly behaviour and resisting members of the police force in the execution of their duty on 22 July 2005.
The appellant pleaded guilty to the offences and was sentenced to a global penalty for all offences of imprisonment for two months which was suspended upon him entering into a bond in the sum of $200 to be of good behaviour for a period of 12 months.
The appellant has appealed against sentence on the grounds that it was manifestly excessive and that the magistrate erred in imposing a sentence of imprisonment.
The appellant requires an extension of time within which to appeal. The period of the delay is short and, with the consent of the respondent, there will be an extension of time within which to appeal to 4 October 2005.
The offences committed on 20 February 2005 took place when police attended a private house in Whyalla Norrie at approximately 1.00 am to deal with a man who was refusing to leave the premises. The appellant jostled and abused the police officers who found themselves outnumbered. They retreated and requested more police officers to attend. At this point, the appellant and another offender threw drink cans at the police vehicle. Approximately half an hour later, police officers were verbally abused and sworn at by the appellant in a nearby street. The appellant then resisted the police while they were attempting to arrest him. Later, he ripped up a blanket in the police cells.
Then, at approximately 4.30 am on 9 April 2005, police officers attended the Spencer Hotel in Whyalla. The appellant was standing in the middle of the road yelling and waving his hands. He was shouting offensive language.
Finally, at about 4.50 am on Friday 22 July 2005, the appellant was observed by police officers near the Eyre Hotel, Whyalla Playford. He was shouting and using offensive language. He was asked to leave the area, but later walked towards the police shouting aggressively and using offensive language towards them. He resisted arrest and struggled with the police officers.
The appellant was affected by alcohol on each of these occasions.
The court was advised that the appellant had previous convictions for similar offences. On 23 November 2004 he was convicted of disorderly behaviour and fined $250. The offence was committed on 19 September 2004.
On the same day, the appellant was convicted without penalty of disorderly behaviour committed on 26 September 2004. He also appeared before the court on 24 November 2003 on a charge of disorderly behaviour committed on 28 September 2003. The court proceeded without conviction.
One of the complaints made on behalf of the appellant relates to the following remarks made by the magistrate when sentencing:
The prosecutor calls for an immediate custodial sentence and I have some sympathy with his request. I constantly have people come before me in this court who see fit to behave in an aggressive and disorderly manner outside of the hotels here in Whyalla. I agree with the prosecutor that it must be difficult for law abiding citizens to attend hotels without fear of being assaulted or accosted by people who carry on in the manner in which Mr Stewart has carried on, on the occasions which represent his appearance before the court. I agree that a message should be sent to people who want to carry on in that fashion that that sort of behaviour will not be tolerated.
According to the argument, these remarks disclose that the magistrate treated the appellant as a scapegoat for others who had committed similar crimes: see the remarks of Walters J in Martin v Scotland (1972) 2 SASR 271 at 272. See also Scott v Police (1993) 61 SASR 589.
In my view, the impugned remarks do not support the suggestion that the magistrate was singling the appellant out because of the prevalence of this type of offence or that this issue was the dominant factor in the magistrate’s decision. The magistrate restricted his observations to prevalence and general deterrence. These are clearly relevant considerations to take into account when sentencing. Although there was no suggestion in the magistrate’s reasons of raising the normal standard of penalty by reason of the prevalence of offences in a particular locality, this may be a relevant consideration to penalty in some cases as long as proper regard is also had to the circumstances of the offender and the general nature of the crime: Giles v Barnes [1967] SASR 174 per Bray CJ at 181; Moore v Materna (1996) 136 FLR 142. This ground of appeal is not made out.
However, it was also argued that these and other remarks indicated that the magistrate began with the premise that imprisonment was the appropriate penalty and the only real issue was whether the sentence should be suspended.
The appellant is a 23 year old Aboriginal man. He is in regular employment and his employer speaks highly of him. He is involved in sporting activities in the community.
The circumstances gave rise to the need for careful consideration as to whether a penalty other than imprisonment was appropriate. There was no reference to this consideration in the remarks on sentence. It does appear that the major consideration which exercised the mind of the magistrate was whether there should be an immediate custodial sentence or whether the sentence should be suspended. In my view, no or insufficient consideration was given to other alternatives. In these circumstances, I consider it is appropriate to exercise the sentencing discretion afresh. I should also mention that there was nothing in the sentencing remarks to indicate that the sentence was reduced by reason of the pleas of guilty: R v Harris& Symonds (1992) 59 SASR 300.
The appellant’s previous court appearance did not result in any supervision and, in the light of his otherwise good character and work record, it would appear that he would benefit from such an order. There should also be a punitive element in the sentence by way of a requirement to perform community service.
The appeal will be allowed and the sentence set aside.
The appellant will be required to enter into a recognisance in the sum of $200 to be of good behaviour for a period of two years and to come up for sentence if called upon. He is to be under the supervision of a probation officer and will be required to participate in such programs as may be directed in relation to anger management and alcohol abuse. He will be required to perform 120 hours of community service within the period of 18 months from entering into the bond. The orders of the magistrate relating to compensation, court fees, levies and prosecution fees will remain in force.