Tahau v Police - [2010] SASC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAHAU v POLICE
[2010] SASC 152
Reasons for Decision of The Honourable Justice Vanstone
26 May 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - DISMISSAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRESUMPTIONS
Appeal against sentence - suggested errors made by magistrate in describing offending - individual sentence said to be excessive - suggestion that special circumstances should have been found.
Held: appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 58; Offenders Probation Act 1913 s 9(6), referred to.
Postiglione v the Queen (1997) 189 CLR 295; R v B, RWK (2005) 91 SASR 200; R v Buckman (1988) 47 SASR 30, applied.

TAHAU v POLICE
[2010] SASC 152
Magistrates Appeal

VANSTONE J: The appellant was sentenced in the Magistrates Court sitting at Mount Gambier for offences of assault and damaging property. The assault offence was in breach of a bond associated with a nine month suspended sentence imposed for an earlier offence of assault occasioning actual bodily harm. The magistrate revoked the suspension of that sentence and ordered that it be carried into effect. For the assault offence he imposed a sentence of nine months imprisonment, having deducted one month in recognition of the plea of guilty. For the property damage offence he reduced a term of imprisonment of two months to 42 days, on account of the plea of guilty. He ordered that the sentences run consecutively. That gave rise to a total sentence of 18 months and 42 days imprisonment. He fixed a non-parole period of eleven months. The sentence was backdated to commence on 4 December 2009, when the appellant had been taken into custody in relation to the damaging property offence.
The appeal against the sentence was heard on 5 May 2010. At the end of the submissions I ordered that the appeal be dismissed and said that I would provide reasons later. The following are my reasons for dismissing the appeal.
The amended grounds of appeal asserted that the sentence was manifestly excessive. The grounds also complained of errors said to have been made by the magistrate, such as to vitiate the sentencing process. It was also asserted that the magistrate “failed to apply the totality principle”.
I deal first with the errors said to have been made. First, only one of the two offences for which the appellant fell to be sentenced constituted a breach of the earlier bond. That was the assault offence. In his remarks, the magistrate erroneously stated that both offences breached that bond, as he appears to have confused the property damage offence of 4 December 2009 with another offence of property damage allegedly committed on 18 April 2008 but for which the appellant was acquitted. In my view nothing turns on that error. Perhaps it might have been important had there been a question of triviality of the breach or proper grounds to excuse it. But that was not the case. The assault offence was in breach of the bond and that was sufficient grounds to revoke the suspension of sentence.
Next it was said that in briefly summarising the two offences before him, the magistrate departed from the facts as put to him. In respect of the assault offence, the magistrate said that police had seen the appellant walk up to the victim who was “inoffensively walking down the street on his own”, and punch him in the head with a heavy blow. He went on to observe that the victim then went to the ground and was kicked multiple times by the appellant in a cowardly manner. The police version as put to the magistrate was in fact that the police came upon the two men, they saw “the accused fighting with the victim … and saw the accused wrestling with the victim while standing.” The allegation went on that “the accused was then seen to thrust the victim aside and then punch the victim in the face with his right hand. The victim was seen to fall to the ground. Police then saw the accused kick the victim three times whilst he was on the ground in a curled up position.” I do not think the departure from the facts as described by the police is material. The victim’s version, which was also put to the magistrate, was again slightly different. The gravamen of the charge was the punch to the victim’s head and, more importantly, the kicks delivered to him while he lay on the ground.
The property damage offence occurred at the Lucindale Hotel. The magistrate was told that the appellant had been refused service by the bar manager and had been removed from the premises, having become agitated and aggressive. Once outside the front door, the appellant punched a glass pane in the door causing it to break. The damage included bending the door frame out of shape, rendering the lock unserviceable. The magistrate ordered compensation in the sum of $700 to approximate the cost of repair of the damage. In his short summary of the facts the magistrate said: “You were heard to call the lady behind the bar a ‘bitch’”. In fact, the appellant had told the police that the “barmaid was a bitch for not serving him”. Again, the error is not material. The only relevance of the appellant’s attitude to the bar manager was that it explained his action in damaging the hotel property.
The appellant also complained that in sentence the magistrate said that the appellant had an “unabated propensity towards violence” and that he further described the violence as “gratuitous”. Later, the magistrate said that the penalty was necessary to “bring home to [the appellant] that this community abhors violence, gratuitous violence and violence that it seems [the appellant is] used to dishing out.” It was put that this was extravagant language having regard to the fact that there were just the two assault offences and one property damage offence in issue. It was also submitted that it was inaccurate to describe the violence as “gratuitous” when the incidents were not completely unprovoked.
In my view the magistrate was entitled to use these terms. The offences occurred over the period from January 2006 to December 2009. Treating the property damage offence as an offence of violence was not inappropriate having regard to the fact that the appellant had to be ejected from the hotel. Furthermore, although the appellant was able to proffer an account that goes some way to explaining why he committed the later assault and the property damage, the incidents can still be considered unprovoked. The circumstances of the property damage are as discussed above. With respect to the assault, the victim had merely approached the appellant, telling him not to attend at a hotel as there were police there, to which the appellant unreasonably took offence. Bearing in mind that the magistrate’s remarks were delivered ex tempore, I do not consider there is any warrant to analyse his remarks with an excessively critical eye. The same goes for a statement made by the magistrate that the property damage offence was committed while the appellant was on bail for the assault offending. Counsel for the appellant put to me that that was strictly wrong because in fact the appellant had failed to answer his bail just prior to committing the property damage and the bail agreement was revoked. Whether or not that is so is not the subject of proof before me. In any event, as counsel acknowledged, if the appellant was at large at the time of the property damage offence, that is more serious than if he were merely on bail.
In support of the argument that the sentences imposed were manifestly excessive, counsel pointed to some factors which he said justified some leniency. For example, he observed that prior to breaching the suspended sentence bond, the appellant had been compliant for some 20 months. He pointed to a period of 18 months since the commission of the second assault charge during which time no offences of violence had been committed. He said that the appellant had attempted to temper his alcohol intake; that he had work available to him and that he was, at the time of sentence, in a stable relationship. These factors were certainly relevant to the exercise of the sentencing discretion, but I do not consider that they dictated any particular approach to its discharge.
With respect to the property damage offence, it was also submitted that the sentence of 42 days was excessive given the nature of the offence. It was submitted that it was a single blow resulting in limited damage. It did not expose any others to a risk of injury and did not involve a weapon or any object. It was an unpremeditated reactive offence. It was further submitted that the magistrate failed to give adequate weight to the apology offered by the appellant to the hotel.
In my view the sentences imposed, looked at both individually and in total, were within the range of penalties available. The fact that the accused committed the assault offence while on a bond for a similar charge was a significant factor of aggravation. Then, while facing revocation of that suspended sentence as well as the assault charge, the appellant committed the damaging property offence. The sequence of offending was apt to engender no confidence in the appellant’s commitment to avoiding trouble.
As to the question of totality, it is true that the sentencing remarks do not disclose that the magistrate considered the totality principle. However, that does not mean he overlooked it.
In Postiglione v The Queen (1997) 189 CLR 295, McHugh J said at 307-308:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.
The statements of Doyle CJ in R v B, RWK (2005) 91 SASR 200 at 203 are instructive as to the circumstances in which it is appropriate to reduce a sentence on account of totality:
… The sentence in question cannot be regarded as a crushing sentence. That is often an indicator that a sentence should be reduced by applying the totality principle. The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.
These were separate incursions into criminal conduct warranting consecutive sentences. The total sentence imposed cannot be regarded as crushing. This ground does not succeed.
Counsel for the appellant further argued that the personal factors favouring the appellant should have given rise a finding that there were special circumstances, as that term is used in s 58 of the Criminal Law (Sentencing) Act 1988 and that the term of the previously suspended sentence should have been reduced. However, special circumstances are not merely circumstances of an unusual type, or circumstances which point to a rosier future. In R v Buckman (1988) 47 SASR 303, referring to s 9(6) of the Offenders Probation Act 1913 (being the progenitor of s 58) King CJ said at 304:
It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered in appropriate. … Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.
In terms of special circumstances, counsel pointed to the factors mentioned above as illustrative of the appellant’s rehabilitation. In my opinion, none of these matters constitutes special circumstances such as to make the original sentence inappropriate. Insofar as the appellant’s employment and relationship are concerned, counsel acknowledged that these were of limited significance as they were matters existing at the time the bond was entered. Counsel therefore relied primarily on the appellant’s compliance with the bond over 20 months. Yet, the fact of the instant offending undermines the assertion that the appellant has committed himself to rehabilitation and good behaviour. Although counsel abandoned an argument that the magistrate ought to have refrained from revoking the suspension of sentence, the comments of King CJ at 304 in Buckman as to that question are instructive here:
There is a clear legislative policy that in general a breach of a condition of recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. … It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of recognisance.
Furthermore, it was not put to the magistrate that there were grounds upon which the discretionary power within s 58(4) Sentencing Act should be exercised. In those circumstances it would have been quite unusual, if not inappropriate, for the magistrate to intervene to reduce the earlier term of imprisonment. Anyway, in my view there were no grounds for so doing.
Despite the detailed analysis to which the sentencing process has been subjected, no material error or manifest excess has been demonstrated.
These are my reasons for dismissing the appeal.