TALIANGIS v Police
[2008] SASC 155
•13 June 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TALIANGIS v POLICE
[2008] SASC 155
Judgment of The Honourable Justice Nyland
13 June 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
Appeal against sentence - appellant sentenced for multiple offences - global penalty imposed - inference that magistrate relied on s 18A Criminal Law (Sentencing) Act 1988 - insufficient information to determine manner in which he fixed global penalty - whether he included offences punishable by fine - whether earlier bond estreated and penalty included for earlier offence - failure to take into account full period of time served by appellant prior to sentence - whether sufficient discount for plea of guilty - appeal allowed.
Criminal Law Consolidation Act 1935 s 20(3); Criminal Law (Sentencing) Act 1988 ss 18A and 39; Summary Offences Act 1953 ss 6(2) and 7(1)(a); Bail Act 1985 s 17, referred to.
TALIANGIS v POLICE
[2008] SASC 155Magistrates Appeal
NYLAND J:
This is an appeal against a sentence imposed by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 5 November 2007. The sentence relates to four separate Magistrates Court files:
1. AMC-07-10707:
This is an information which alleges that on 2 August 2007 at Clarence Park, the appellant threatened to apply force directly to a person, contrary to the provisions of s 20(3) of the Criminal Law Consolidation Act 1935. This was alleged to be an aggravated offence as the appellant had used or threatened to use an offensive weapon against a law enforcement officer, knowing the victim to be acting in the course of his or her official duty. The offences were alleged to have taken place at the appellant’s home and included threats by the appellant to harm her children, threats to the police, and throwing a 30 cm knife which landed in close proximity to the police. The maximum penalty for this offence is imprisonment for four years.
2. AMC-07-9799:
This complaint alleges that on 10 June 2007, at Adelaide, the appellant behaved in a disorderly manner in a public place, namely Bent Street, contrary to the provisions of s 7(1)(a) of the Summary Offences Act 1953. It was also alleged that at the same time and place, the appellant resisted a member of the police force in the execution of his duty, contrary to s 6(2) of the Summary Offences Act 1953. The maximum penalty for behaving in a disorderly manner is a fine of $1,250 or three months imprisonment, and for resisting police $2,500 or six months imprisonment.
3. AMC-07-9823:
This complaint alleges two breaches of s 17 of the Bail Act 1985. The first alleges that between 6 September 2007 and 13 September 2007, the appellant failed to reside at the address designated in her bail agreement dated 7 September 2007, and that on 12 September 2007, she consumed alcohol contrary to the terms of that agreement.
4. AMC-07-9822:
This is a complaint alleging the breach of a bond entered into by the appellant on 9 March 2007. On that date, the appellant was convicted of a charge of disorderly behaviour and a charge of assault police but was released on a good behaviour bond in the sum of $100 for a period of 12 months. The terms of the bond were:
(1) To be of good behaviour and comply with all conditions of the bond.
(2) To come up for sentence if called upon.
(3) To be under the supervision of a probation officer/community corrections officer for a period of 12 months and obey all lawful directions given by a probation officer/community corrections officer.
It was alleged that the conditions of the bond were breached as a result of the appellant’s behaviour on 10 June 2007.
On 9 October 2007, the appellant pleaded guilty to all the charges against her. The magistrate ordered pre-sentence and neuropsychological reports, and adjourned the matter to 5 November 2007. On that date submissions were made on behalf of the appellant by her counsel, Mr Walrut. Details of those submissions are set out in Mr Walrut’s affidavit sworn on 22 January 2008. In the course of those submissions, counsel informed the magistrate that the appellant had been in custody for a period of three months. The magistrate, however, indicated that he believed the period to be about two months. The magistrate proceeded immediately thereafter to sentence the appellant. The reasons are relatively brief. The learned magistrate mentioned the pre-sentence and neuro-psychological reports. The magistrate had also been provided with a report of Dr Raeside, a psychiatrist, but did not refer to it in his sentencing remarks. That does not necessarily mean, however, that he did not have regard to it.
The learned magistrate referred to the circumstances of the offences on 27 April 2006 for which the appellant had been placed on a bond, and the breach of that bond by the offending on 10 June 2007. He also mentioned the offence of 2 August 2007, which he described as “very serious” and the two counts of failure to comply with the bail agreement. He went on to say that he was conscious of the need to adjust the penalty to take into account totality, and that he had to sentence the appellant on the version of facts most favourable to her. He said he took into account the time she had spent in custody and the timely pleas. He then indicated that a total period of nine months imprisonment was appropriate, which he then discounted by three months to allow for time served and the pleas of guilty. That resulted in a sentence of six months imprisonment which was suspended upon the appellant entering into a bond to be of good behaviour for a period of 18 months. The bond included a number of conditions which included being under the supervision of a Community Corrections officer.
The original notice of appeal complained that the magistrate had not taken into account the full amount of time served in custody by the appellant and also asserted that the sentence was manifestly excessive. Amended grounds of appeal were subsequently filed which contained numerous other complaints with respect to the sentence. It is, however, unnecessary to refer to the further grounds in detail as, on the hearing of the appeal, counsel for the respondent conceded that it was arguable that the learned magistrate had fallen into error in his application of s 18A of the Criminal Law (Sentencing Act) 1988, as a result of which the sentence imposed was open to review.
The learned magistrate did not refer to s 18A of the Sentencing Act in his remarks but the inference to be drawn from the imposition of a global penalty is that he relied on that section to impose one sentence for all of the offending. The failure to refer to s 18A is not in itself an error of law but, in a case such as this, where there are a number of complaints alleging different offences on separate occasions, it is necessary to provide some explanation as to how the single sentence was reached. As White J said in R v Waugh[1] :
When a judge goes directly to a single sentence, some explanation of how that single sentence is derived is still necessary. That might be given, for example, by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, and by identifying whether the judge considers that they should be served cumulatively or concurrently. Alternatively, the explanation may be given by stating a sufficient number of individual sentences so as to indicate that the judge regards any further identification of individual sentences unnecessary. This may be because the imposition of such sentences would be crushing or might lead to sentence which did not reflect the overall seriousness of the criminality involved.
[1] (2005) 93 SASR 274 at 284:
In this case, the charge of aggravated assault was clearly serious and warranted a term of imprisonment. The other offences were by comparison relatively minor and could possibly have been dealt with by the imposition of a fine rather than imprisonment. In that case they should not have been included in a s 18A sentence. It is not, however, possible to glean from the remarks whether the magistrate turned his mind to that aspect of the matter, or whether he dealt with the matter on the basis that each of the offences warranted a sentence of imprisonment.
It is also not clear whether the magistrate included in the sentence he imposed some penalty with respect to the offences which led to the imposition of a bond on 9 March 2007. That bond was imposed pursuant to s 39 of the Sentencing Act and required the appellant to be of good behaviour and to “come up for sentence if called upon”. The magistrate does not appear to have estreated the recognisance nor revoked that bond, nor to have given any indication as to the sentence which related to that offending, if in fact some penalty was incorporated into the sentence he imposed.
The learned magistrate indicated that the starting point for the imposition of his sentence was “in the region of nine calendar months”. He then discounted that by three months to allow for time spent in custody and the pleas. He appears to have made that calculation as a result of his understanding that the appellant had spent two months in custody, and therefore only allowed one month reduction for the pleas of guilty. The amount of discount for a guilty plea is discretionary, but as a rule of thumb, a 25% discount has been suggested as appropriate for an early plea of guilty. If there was some reason why this appellant was not entitled to the full discount for her plea, it was incumbent upon the magistrate to explain why that was so. In any event, the magistrate fell into error by only giving the appellant credit for a period of about two months for time served. On appeal it was agreed that the appellant had been in custody from 2 August 2007 to 7 September 2007, and again from 13 September 2007 to 5 November 2007 which is a period of 92 days. It is likely that the magistrate overlooked, or was unaware of, the earlier period spent in custody by the appellant. If that is not the case, and there was some reason why the magistrate thought the appellant should not have been given credit for the total period served, he should have provided some explanation for reaching that conclusion.
I am mindful of the fact that this was a sentence imposed by a magistrate in the course of what was, undoubtedly, a busy list. Notwithstanding that matter, it is essential that reasons be sufficient to enable an appellate court on review to understand the way in which the magistrate arrived at his or her sentence, and the factors which were taken into account. Due to the difficulty in identifying the approach taken in this case, and the problems associated with the application of s 18A of the Sentencing Act, it is necessary to set aside the sentence imposed by the learned magistrate and exercise the sentencing discretion afresh.
In considering the appropriate sentence, I have had regard to the psychiatric report of Dr Raeside, the neuro-psychological report of Mr Field, and the pre-sentence report. It is clear that the appellant has a significant chronic alcohol problem which has been the catalyst for the commission of these various offences. The pre-sentence report comments that:
When the defendant is sober and she shows a reasonable level of insight highlighting the negative impact her behaviour has on her children and mother and in being interviewed for this report, the defendant informed me that even though when initially put into custody, she was really angry and upset, she now realises that it was probably the best thing that could have occurred. She continues that she has had a real wake up call.
The offence committed on 2 August 2007 is extremely serious. According to the affidavit of Mr Walrut, the appellant when arrested had a blood alcohol level of .328. Mr Walrut said, however, that on the occasion in question the appellant had been the subject of domestic violence by her older son who suffers from schizophrenia and she had rung the police on a number of occasions that evening to have them attend in relation to domestic violence. The breach of bail between 6 and 13 September 2007 was apparently the result of her mother refusing her entry to the designated residential address due to her drinking. She subsequently went to her children’s home where an argument took place. They rang the police and upon their attendance she refused to supply a blood alcohol sample.
Mr Walrut said that the appellant had remained sober for a long period of time before she breached her bond but had resumed drinking when pursued by a stalker. Mr Walrut said the appellant was 48 years old with four children, no fixed place of abode and in receipt of a single parent’s pension and rent assistance. She had no savings and had been resident of Catherine House on at least one occasion as a result of being a victim of domestic violence.
As I have already mentioned, the offence of 2 August 2007 was particularly serious and warranted a term of imprisonment. Although counsel for the appellant submitted that the offences of 10 June 2007 could have been dealt with by the imposition of a fine, I consider that each warranted a short term of imprisonment. It is also appropriate to estreat the bond entered into on 9 March 2007, and to sentence the appellant to a short period of imprisonment for the offence of disorderly behaviour which was the subject of the bond. I believe, however, that this is an appropriate case to use the provisions of s 18A of the Sentencing Act to impose one sentence for all of these offences.
In my opinion, each of the charges of breaching bail could be dealt with by the imposition of a fine. In view of my decision to impose a sentence of imprisonment with respect to the principal offence, however, as well as the personal circumstances of the appellant, I have decided that each of the bail offences can be dealt with by recording a conviction without further penalty.
Having considered these various matters I am of the view that the sentence of nine months imprisonment referred to by the learned magistrate was an appropriate starting point for the imposition of penalty. I would reduce that sentence by two months by way of discount for her pleas of guilty and also give the appellant a credit of three months for time served. That results in a sentence of four months imprisonment.
There remains the question of suspension of sentence. The personal circumstances of the appellant make it appropriate for a rehabilitative approach to be taken towards the imposition of sentence. There is therefore good reason to suspend the sentence on the basis that the appellant enters into a bond which will be in the same terms as those imposed by the learned magistrate.
The appeal is allowed. The sentence imposed by the magistrate is set aside. The bond dated 9 March 2007 is estreated. The appellant is sentenced to four months imprisonment which will be suspended upon condition that the appellant enter into a bond in her own recognisance in the sum of $10 on the following terms and conditions:
(1)That the appellant be of good behaviour during the period of the bond, which will be for a period of 18 calendar months.
(2)That the appellant be under the supervision of and comply with the reasonable directions of a Community Corrections Officer during the period of the bond.
(3)That the appellant will reside initially at 69 Melville Street, South Plympton, and thereafter as and when directed by her assigned Community Corrections Officer.
(4)That the appellant obey the directions of her Community Corrections Officer to attend at an assessment as to her suitability to participate in alcohol and other drugs program and/or a relapse prevention program and if deemed suitable to satisfactorily complete the programs.
(5)That the appellant obey the directions of her Community Corrections Officer to attend an assessment as to her suitability to participate in a victim awareness program and if deemed suitable to satisfactorily complete the program.
(6)That the appellant undergo breath testing and urine testing at the direction of her Community Corrections Officer.
(7)That at the direction of the Community Corrections Officer the appellant attend regular Alcoholic Anonymous meetings.
(8)That at the direction of the Community Corrections Officer the appellant attend at psychological or psychiatric assessment and undergo such treatment as may be recommended by a qualified person and be available to him or her for assessment and treatment.
(9)That the appellant obey the directions of her Community Corrections Officer in relation to alcohol treatment and if deemed necessary to be admitted for detoxification.
(10)That the appellant report to the Edwardstown Community Correctional Centre at Level 1, 938 South Road, Edwardstown, within two working days.
There will be a conviction without penalty with respect to each of the two breaches of the Bail Act 1985.