TAYLOR v Police

[2008] SASC 102

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

TAYLOR v POLICE

[2008] SASC 102

Judgment of The Honourable Justice David (ex tempore)

15 April 2008

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING

Appellant pleaded guilty to charges of aggravated assault on a police officer and resisting arrest - one sentence set pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) - whether agreed factual basis of each offence necessary in sentencing - error conceded by respondent.

Held: Appeal allowed, appellant resentenced.

Criminal Law Consolidation Act 1935 (SA) s20(3); Summary Offences Act 1953 (SA) s 6(2), s 74A(3)(a); Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

TAYLOR v POLICE
[2008] SASC 102

Magistrates Appeal

DAVID J. (ex tempore)

Introduction

1. This is an appeal against sentence, pursuant to s 42 of the Magistrates Court Act 1991 (SA). The appellant pleaded guilty to four offences in the Mount Barker Magistrates Court, namely:

   ·common assault, pursuant to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (count 1);

   ·aggravated assault on a police officer, pursuant to s 20(3) of the Criminal Law Consolidation Act (count 2);

   ·resisting arrest, pursuant to s 6(2) of the Summary Offences Act 1953 (SA) (count 3); and

   ·failing to state name and address, pursuant to s 74A(3)(a) of the Summary Offences Act (count 5).

   There was a further charge of aggravated assault on a police officer (count 4), which the Prosecution withdrew.

2. The magistrate imposed the following penalties:

   ·count 1 – a conviction and fine of $400;

   ·counts 2 and 3 (presumably pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA)) - one penalty of imprisonment for four months, suspended on entering into a bond to be of good behaviour for a period of 18 months in the sum of $400 and

   ·count 5 – conviction and fine of $100.

   The appellant now appeals in relation to the sentence imposed for counts 2 and 3.

   Background

3. The background facts upon which the magistrate sentenced the appellant as put to him by the prosecutor, and agreed to by the defence, were:

   On 7^th April 2007 the defendant was in attendance at the Oak Bank races, Oak Bank. Following an incident in one of the bars, security officers were called to that bar and as a result, the defendant was escorted from the premises by security. During this the defendant was placed on the ground. It’s alleged that during this time spittle was used towards one of those guards.

   Police officers attended and whilst trying to restrain the defendant it is alleged that he (the defendant) grabbed hold of the finger of one of the officer’s and wrenched it to one side. The defendant was forced to let go and he was then subsequently restrained and placed into a police vehicle.

   Whilst at the police station the defendant was asked to provide his details which he refused to do so.

   He was not interviewed due to his level of intoxication.[1]

   [1]    Affidavit of David Royston James, Compliance Manager, TransAdelaide, sworn on 2 April 2008 and Affidavit of John Andrew English, Barrister and Solicitor, Legal Services Commission of South Australia, sworn on 11 April 2008.

4. The magistrate was also informed that the appellant was aged 42 and was raised in Geelong, Victoria, where he was employed as a die setter and process worker. He was single, but had four children from a previous marriage whom he continued to support. He has always been gainfully employed, especially in the building and racing industries. He was at Oakbank because of his interest in racing, and has been attending the Oakbank Carnival for many years.

5. It was also put to the magistrate that towards the late afternoon and early evening on the day in question, the appellant was intoxicated and had an altercation with security officers, who forcibly grabbed him and threw him to the ground. At one stage, he spat in the direction of the security officers (which was the basis of count 1).

6. It was agreed that when police officers came to help the security officers, the appellant behaved badly by struggling when he was being handcuffed, and grabbed one of the arresting police officers by the finger. It was that grabbing or wrenching of the police officer’s finger which constituted the charge in relation to count 2.

   Grounds of Appeal

7. In the Magistrates Court, no submissions were put as to the basis of count 3 (resisting arrest).

8. In this Court, counsel for the respondent conceded that the magistrate had erred in sentencing because he was not informed of the basis of that count. Counsel for the respondent therefore conceded that the appeal should be allowed and that I should re-sentence de novo. Consequently, I allow the appeal and set aside the sentence in relation to counts 2 and 3. I turn to the question of re‑sentencing.

   Re-sentencing

9. Counsel for the respondent subsequently informed me of the basis of count 3:

   Other police restrained TAYLOR’s legs and I assisted HENNING in placing handcuffs on him. TAYLOR refused to obey any direction from police to calm down. TAYLOR continuously resisted the efforts of us to place handcuffs on him, bracing his arms out and refusing to move them where directed. Two sets of handcuffs were used on him, linked together.

   When he was in handcuffs HENNING and I got him back on his feet. I took hold of him on his left side and began walking him back to the police compound and the stables area, where all the police vehicles were parked.

   TAYLOR still continued to be aggressive and swear and yell out and resisted moving with police by digging his heels in and trying to stop walking.[2]

   This is the basis of the resist arrest, which was not put to the magistrate.

   [2]    Affidavit of Constable Matthew McCarthy, Adelaide Bicycle Patrols, sworn on 7 May 2007.

10. I have also been informed that the appellant is gainfully employed and has not been in trouble with the police recently. I take into account that offences committed against police officers in the course of their official duty are considered to be aggravated offences. Although there was no actual harm caused in this case, the appellant’s behaviour was nevertheless unacceptable and the courts have a duty to protect police officers in the execution of their duty. Though it is to be noted that the appellant was convicted of resisting arrest in the Magistrates Court of Bendigo in October 1995, he has not been in trouble since. I  am therefore hopeful this behaviour will not repeat itself.

    Conclusion

11. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, I consider it appropriate (in the same way that the magistrate did) to set one sentence for the course of conduct which involved the police officers, namely the assault and resist arrest. Bearing in mind that the accused has remained out of trouble for well over 10 years before this offence and is gainfully employed, I think the matter can best be dealt with by imposing a substantial fine. I impose a fine of $2,500.