Taylor v Police No. Scciv-03-406

TAYLOR v POLICE
[2003] SASC 356
Magistrates Appeal

GRAY J This is an appeal against sentence.
Following submissions the appeal was allowed and the sentence imposed by the magistrate set aside. On the charge of assaulting a police officer the appellant Ricky Mervyn Taylor was re-sentenced to a term of imprisonment of three weeks. On the charge of resist arrest Mr Taylor was released on a bond on terms that he:
be of good behaviour, and comply with all the other conditions of this bond.
appear before a court for sentence for the above offence if [Mr Taylor] disobey any of the conditions of this bond.
be under the supervision of a community corrections officer for a period of 18 months and obey the lawful directions given to [Mr Taylor] by the community corrections officer for the purposes of supervision and in particular any directions given as to undertaking courses and programs relating to alcohol or anger management.
I indicated that reasons would be published later. Those reasons now follow.
Background
The Proceedings
Mr Taylor was charged with resisting a police officer in the execution of his duty and assaulting a police officer in the execution of her duty.[1]
[1] On the 2^nd day of November 2002 at Port Augusta in the said State
Mr Taylor entered pleas of guilty. The magistrate imposed a conviction without penalty for the offence of resisting police and a sentence of imprisonment for 20 weeks for the offence of assaulting a police officer. The magistrate then exercised his discretion pursuant to section 38(2a) of the Criminal Law (Sentencing) Act 1988 SA and ordered that Mr Taylor be released upon entering into a bond to be of good behaviour after serving 5 weeks in custody. No provision for supervision was made.
In sentencing the magistrate remarked:
This was a relatively serious assault on a police officer. It was not the usual glancing blow and ineffectual assault one often hears about. It was a punch to her mouth area, which caused her soreness and discomfort and affected her ability to move her jaw and to eat normal food for about ten days. It has also been a frightening experience for her. The courts have always taken the view that police officers have a difficult job to do. There are risks in the work they do and they must be protected. You are to be given credit for your decision to plead guilty and dispense with the matter at an early date.
I note your apology and that it is a genuine one. I think a short sentence of imprisonment is appropriate but not as short as usual because of the nature of the consequences I mentioned. I think that this assault is of a more serious than usual nature and it does call for a sentence to be served. I have decided that you should serve an immediate period in prison and you will be released on a bond for the balance of the time. I give you a discount of 25%.
On Count 1, the resist, you are convicted without penalty.
On Count 2 you are sentenced to 20 weeks imprisonment. I order that you be released after serving 5 weeks of that sentence upon condition that you sign a bond of $200 to be of good behaviour for the remaining period. It is 15 weeks after you get out until the 20 weeks is finished. I will not impose supervision. I think in that manner I achieve a balance between the competing considerations. Court fees and levies to be paid.
Counsel for Mr Taylor sought an extension of time in which to appeal. There had been some difficulty obtaining instructions arising from Mr Taylor’s imprisonment and his solicitor’s absence on circuit. An extension was not opposed by the Crown. It is appropriate in this case to extend time.
The Circumstances of the Offending
Constable Campbell and her partner, Constable Fatchen were on Uniform Mobile Patrol on the night of the incident. They observed a man swaying on his feet on the side of the road. The officers approached and asked him what was in a small plastic bag he held in his hand. The bag was handed back when it was concluded that it contained tobacco. At that point Mr Taylor put his head in the passenger window of the police vehicle and the following discussion ensued:
Mr Taylor:                  He’s not doing anything, he’s been with me.
Constable Campbell:      Mate, we are just talking to him.
Mr Taylor:                  What are you picking on him for, he’s been drinking with me.
Constable Campbell:      What is your name.
Mr Taylor:                  Fuck off I don’t have to.
Constable Fatchen then went to the rear of the vehicle where Mr Taylor and two other men were standing. Constable Campbell went to his assistance. Mr Taylor raised his right fist and swung at Constable Campbell, making contact to the right side of her jaw. Mr Taylor initiated the conflict with the officers.
Antecedents
Mr Taylor was born and raised in Port Augusta. He left school at the age of 14 and travelled to Alice Springs and the Anangu Pitjanjatjara Lands where he had relatives. He currently lives in Port Augusta with his grandmother. On his return to the Port Augusta area he gained employment.
Mr Taylor moved to Ceduna in 1989 where he met his former partner. They had two children. Mr Taylor remained there at Ceduna until the relationship failed in 1995. While in Ceduna he was consistently employed in a variety of positions including gardening, maintenance and metalwork. His former partner moved to Broome in 1997 with the children.
In 2002 Mr Taylor came to understand that his former partner had moved back to Ceduna. He returned in the hope of seeing his children. Mr Taylor remained there until October, shortly before the offences the subject of these proceedings. During that time he was only able to see his children briefly on two occasions.
Since bail was granted on 25 March 2003 Mr Taylor has been living with his grandmother at Port Augusta and has resumed an arid lands course at TAFE. He is confident that he will obtain work when he completes this course.
Mr Taylor has limited criminal antecedents. The only matter of any relevance was an offence of resisting police in 2000. On that occasion he was released upon entering into a bond to be of good behaviour for a period of 6 months.
The Appeal
Counsel’s Submissions
On appeal it was contended that the sentence of imprisonment was manifestly excessive. It was said that the sentence of imprisonment should have been wholly suspended.
It was submitted that the offences took place in highly emotional circumstances after the consumption of wine and beer over a two-day period. Mr Taylor had not had any substantial contact with his children for a number of years. It was said that his emotional state had arisen from a refusal of his ex-partner to allow him to see his two young children. An agreement had been reached that Mr Taylor could visit the children in Ceduna. However, he was later informed that they had already left the community. He returned to Port Augusta and began to binge drink. It was said that Mr Taylor was contrite and remorseful:
It was whilst in this heavily intoxicated state Mr Taylor saw the police officers concerned speaking to one of his drinking friends and misread the situation as one of harassment. Mr Taylor does not have a clear recollection of the events that followed but accepts the prosecution version. When sober, he was shocked to hear that he had punched the female police officer. When Mr Taylor had the opportunity earlier today to read the victim impact statement of the female police officer involved he was upset and is deeply sorry for the distress he has caused her.
Counsel for Mr Taylor submitted that the offence was out of character and drew attention to the lack of any prior history of serious violence. It was said that in all the circumstances a suspended sentence was appropriate:
This offence is extremely out of character for Mr Taylor, as your Honour would note he is a 30-year-old Aboriginal man with no prior history of violence. I ask that Mr Taylor should be given credit for his guilty plea at the earliest possible occasion after negotiations in relation to count one were resolved. That the court accepts that Mr Taylor is genuinely contrite for what has occurred and is not a person who is likely to come before this court again for a similar offence. Mr Taylor acknowledges that this was a serious matter and that a sentence of imprisonment is likely. My major submission is that Mr Taylor receive a suspended sentence and that he be placed on a supervised bond, Mr Taylor is willing to undertake any counselling regarding alcohol usage or anger management as the court may see fit.
Counsel for Mr Taylor informed the court that Mr Taylor had not become violent when intoxicated on earlier occasions. Mr Taylor recognised that he needed help to prevent something similar from happening again. It was said that he was agreeable to supervision for a lengthy period and willing to undergo appropriate programs and courses to assist his rehabilitation. He was concerned to address his problems with alcohol and anger.
Counsel for Mr Taylor submitted that a suspended sentence with supervision and assistance in the form of programs and courses related to alcohol and anger management would have been more appropriate in the circumstances. It was pointed out that the bond only operated for 15 weeks and that there would be insufficient time for Mr Taylor to undertake the courses and programmes that would assist his rehabilitation.
Counsel for the Crown pointed out that assaulting a police officer is a serious offence. There is a need to protect police officers in the performance of their duty. Attention was drawn to Miller v Huffa[2] where Walters J observed:
[2] (1980) 24 SASR 595 at 597-8. Also see Faehrnamm v Edwards (1986) 44 SASR 94 at 97
In my view, actions calculated to endanger a police officer who is engaged in the performance of his duty and who is giving assistance in quelling an affray, under conditions of actual and apprehended danger, call for a kind of penalty which will serve as a deterrent. In the circumstances of the case now under appeal, it seems to me that the observations of Mitchell J in Sumner v Fingleton are very much to the point. There her Honour said:
‘The legislature has properly in my view provided a substantial penalty for assaulting a member of the police force in the execution of his duty. The fact that police officers have to attend at premises where persons are affected by liquor, and are obliged, in some circumstances, to carry out their duties of arresting such persons, makes it imperative that they shall be protected, in so far as it is possible for the law to protect them, from assault by those persons.’
Her Honour’s remarks were cited with approval by Zelling J in Barry v Samuels. Speaking for himself, his Honour said:
‘This Court has always treated assaults on police constables as a serious matter, and in my opinion it is proper that that should continue to be the case. They have their duty to do and it is a duty difficult and distasteful on many occasions and it is not a duty which is to be made more difficult by unprovoked assaults.’
I respectfully share the views expressed by my learned colleagues in the cases to which I have referred. For my part, I wish only to add that incidents of mindless assaults on the police seem to be all too common. Persons who attack police officers in the execution of their duty cannot ordinarily expect leniency, save in a case where the circumstances of mitigation are wholly exceptional. Where police are trying to do their duty of maintaining public order, persons who deliberately assault them in order to impede them in performing their work must ordinarily expect an immediate custodial sentence.
Counsel submitted that regard should be had to Dinsdale v The Queen[3] where the High Court considered the principles applying to consideration of the review of sentencing discretion. Gleeson CJ and Hayne J observed:
‘The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v The King:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’’
Counsel submitted that it was clear that the magistrate had not erred in the sentence imposed on Mr Taylor. The sentence was well within the range appropriate to the nature of the offence.
[3] (2000) 202 CLR 32 at 324-5
An Unusual Occurrence
During the course of submissions it became apparent that an unusual event had occurred. Mr Taylor was granted bail after serving a substantial part of his sentence. In an affidavit from Mr Taylor’s solicitor it was said that after sentencing on 4 March 2003 Mr Taylor was advised of his right of appeal. Mr Taylor decided to consider the course he should follow. A letter, dated 6 March 2003 was sent to Mr Taylor at Port Augusta gaol by his solicitor providing confirmatory written advice. The letter requested that Mr Taylor contact his solicitor as soon as possible if he wished to appeal. Regrettably Mr Taylor did not receive the letter for almost two weeks. It is not clear how that delay arose. On receipt of the letter he instructed his solicitor to appeal. There was further delay by this time as the solicitor was absent on circuit. Soon after the solicitor’s return this appeal was lodged and bail granted.
Counsel for the Crown referred to R v Oliverio.[4] In that case King CJ observed:
‘The relevant principles may be summarised as follows:
-              A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
-      As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve error of judgment or even negligence.
-              However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.
[4] (1993-94) 61 SASR 354
Counsel for the Crown accepted that unfairness to Mr Taylor may have arisen in the circumstances earlier outlined. The possible unfairness arose as Mr Taylor had already served the major part of the sentence when bail was granted. It was suggested that the principles outlined in Oliverio were wide enough to permit a re-opening. The re-opening of the matter on this ground was not opposed.
It is not possible to make a finding about why such a delay ensued before the application for bail pending appeal was made and granted. However, it was accepted by both counsel that the circumstances were unusual and had the potential to cause unfairness to Mr Taylor. In the circumstances an element of unfairness arose.
In the event Mr Taylor had spent more than three weeks in custody and had served the majority of the sentence imposed by the magistrate. Counsel for the Crown accepted that in the circumstances there was an unfairness in returning Mr Taylor to gaol to serve the remaining two weeks of his sentence.
On Mr Taylor’s release on bail his circumstances had changed. He had enrolled in a TAFE course in regard to the management of arid lands and had taken steps that were said to open up the real prospect of employment. As earlier observed his antecedents showed a good working history.
These recent events indicate that Mr Taylor has good prospects for rehabilitation. His approach to training and employment coupled with ongoing supervision and attendances at appropriate programmes and courses are likely to assist these prospects. Such measures serve to protect the community from a risk of re-offending.
The Approach of the Magistrate
The magistrate erred in failing to adequately allow for Mr Taylor’s prospects of rehabilitation and his need for ongoing supervision with support through appropriate courses for anger management and alcohol abuse. The magistrate erred in proceeding to fix a bond for a period of only 15 weeks. A considerably longer term was required. The short term was fixed because of the limitations contained within section 38(2a). The term was limited to the period of the suspended gaol term. It is possible that the magistrate could have used the offence of resist police for the purposes of imposing a bond for a longer term. However he did not do so.
For these reasons I was satisfied that the sentencing discretion miscarried. It was appropriate that the sentence be set aside and Mr Taylor be re-sentenced.
The Re-sentence
Mr Taylor’s offending was serious. The observations in Miller v Huffa are apposite. Mr Taylor served a short term of immediate imprisonment. His antecedents, particularly his attitude to training and employment, and the need to address his problems of alcohol and anger suggested that his prospects for rehabilitation were excellent. Community protection will be provided by Mr Taylor’s successful rehabilitation.
It was inappropriate to return Mr Taylor to custody. Counsel submitted that Mr Taylor was prepared to enter into a bond for a lengthy period with supervision. Given the time spent in custody, Mr Taylor’s recognition of his need for help concerning alcohol abuse and his good employment and education history it was appropriate that he be released on a bond in the terms earlier referred to.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 On the 2^nd day of November 2002 at Port Augusta in the said State
resisted Nicholas John Fatchen a member of the Police Force in the execution of his duty
Section 6 (1) of the Summary Offences Act, 1953
This is a summary offence.
On the 2^nd day of November 2002 at Port Augusta in the said State
assaulted Kathryn Campbell a member of the Police Force in the execution of her duty
Section 6 (1) of the Summary Offences Act, 1953
2(1980) 24 SASR 595 at 597-8. Also see Faehrnamm v Edwards (1986) 44 SASR 94 at 97
3 (2000) 202 CLR 32 at 324-5
4 (1993) 61 SASR 354

resisted Nicholas John Fatchen a member of the Police Force in the execution of his duty
Section 6 (1) of the Summary Offences Act, 1953
This is a summary offence.

On the 2^nd day of November 2002 at Port Augusta in the said State
assaulted Kathryn Campbell a member of the Police Force in the execution of her duty
Section 6 (1) of the Summary Offences Act, 1953
This is a summary offence.

[2003] SASC 356

14 October 2003