THOMAS v Police

[2006] SASC 214

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

THOMAS v POLICE

[2006] SASC 214

Judgment of The Honourable Justice White

21 July 2006

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM

Appeal against sentence - Appellant pleaded guilty to an assault occasioning actual bodily harm contrary to s 40 of the Criminal Law Consolidation Act - Assault of a serious kind - Appellant had prior convictions for assault - Magistrate sentenced appellant, after reduction for plea of guilty and for time spent in custody on remand, to imprisonment for 13 months - A four month non-parole period was fixed - Whether sentence manifestly excessive - Whether sentence should have been suspended - Held: starting point used to determine sentence too high - Appeal allowed - Appellant resentenced, after reduction for plea of guilty and for time served, to imprisonment for 42 weeks - No good reason to suspend sentence wholly - Original purpose of magistrate to be achieved by suspension of a portion of the sentence - 13 weeks of the sentence to be served in custody - Balance suspended pursuant to s 38(2a) of the Criminal Law (Sentencing) Act.

Criminal Law Consolidation Act 1935 (SA) s 40; Criminal Law (Sentencing) Act 1988 (SA) s 19, s 32, s 38, referred to.
R v Olbrich (1999) 199 CLR 270; R v Place (2002) 81 SASR 395; R v Delphin (2001) 79 SASR 429; Stehbens v Police [2004] SASC 227, considered.

THOMAS v POLICE
[2006] SASC 214

Magistrates Appeal

1. WHITE J. The appellant pleaded guilty to an assault occasioning actual bodily harm[1] committed on 28 September 2005.

   [1]   Criminal Law Consolidation Act 1935 (SA) s 40 (now repealed).

2. The relevant maximum penalty for this offence was five years imprisonment.  A magistrate sentenced the appellant to imprisonment for 13 months with a four month non-parole period.  He refused to suspend that sentence.

3. The appellant contends on appeal that the sentence was manifestly excessive, and in any event, should have been suspended.

   Circumstances of the Offending

4. On Wednesday 28 September 2005, at about 11.40 pm, the appellant was at the Vine Inn at Nuriootpa.  He had been there, drinking, for some time.  The victim, who was 18 years old and physically smaller than the appellant, was also present, close to some pool tables.  An incident between these two men, and others, involving an assault to the appellant, had occurred about two weeks previously at Nuriootpa.  The appellant sought to exact revenge.  After some initial verbal aggression, the appellant grabbed the victim and pushed him backwards.  He then punched the victim and, it was alleged, head butted him.  Two patrons in the hotel intervened and separated the two men, but the appellant told the victim “You still have to get outside yet”.

5. Both men were told to finish their drinks and to leave the hotel.  When the victim went to leave, he was followed by the appellant.  He was pushed through the external door and punched several times.  The victim then blacked out and collapsed.

6. When spoken to by the police, the appellant readily acknowledged the assault and that he had been seeking to revenge the earlier incident.  He admitted to having punched the victim numerous times.

7. As a result of the assault, the victim sustained extensive injuries, including a fractured nose, a fractured eye socket, loss of one upper front tooth and extensive damage to a second as well as a broken bone above both the damaged teeth.  The injuries required hospitalisation and detailed dental treatment.  The police prosecutor reported to the court that the victim has ongoing symptoms attributable to the assault and has expended a substantial sum in obtaining appropriate treatment.

   The Appellant’s Antecedents

8. The assault occurred very shortly before the appellant’s 25^th birthday.

9. The appellant has a number of previous convictions.  Of particular relevance to the present offending is a conviction for an offence of common assault on 27 December 1998, for which he was required to perform 56 hours of community service; a conviction for an offence of assault occasioning actual bodily harm on 28 February 1999, for which a sentence of imprisonment of six weeks, but suspended, was imposed; and a conviction for common assault committed on 23 December 2002 for which a sentence of imprisonment for one month, suspended upon the appellant entering into a bond to be of good behaviour for a period of two years, was imposed.  The period of that bond expired on 29 August 2005, only three weeks before the subject offending.

10. In addition, the appellant has previous court appearances for damaging property, disorderly behaviour and hindering police.

    Appellant’s Background

11. The appellant was educated to Year 9 level.  After leaving school he completed one year as an apprentice chef, and since then has had a variety of employments in factories and in vineyards in the Barossa Valley.  He was in employment at the time of the offending and the magistrate was told that employment continued to be available to him.

12. A report from a psychologist was tendered before the magistrate.  It suggests that the appellant has difficulties in controlling his anger when intoxicated.  He has previously participated in two anger management courses although there are some reservations about whether they were of an appropriate kind.

13. The appellant’s upbringing was marked by domestic violence, both towards himself and towards his mother.  It is reported that the appellant’s father was an aggressive role model as a parent and that he encouraged the appellant to react to threats or criticisms with violence.

14. The psychologist has recommended that the appellant have psychotherapy directed towards addressing and resolving his aggression and anger.  It is said that such psychotherapy is not likely to be available to the appellant while he is in custody.

    The Magistrate’s Decision

15. The magistrate’s sentencing remarks record his satisfaction that in the first of the episodes comprising the assault, the appellant had both punched and head butted the victim.

16. The magistrate described the offence as “a very serious assault resulting in significant injuries”.  He attached significance to the fact that the assault was resumed after the period of pause following the breaking up of the initial exchange.

17. The magistrate said that the seriousness of the assault, in the context of the appellant’s antecedents, meant that a sentence of imprisonment was required.  After giving the appellant credit for his plea of guilty (the amount of the reduction was not specified) and for the period which the appellant spent in custody from 4 October 2005 to 16 December 2005 before being granted bail, the magistrate sentenced the appellant to imprisonment for 13 months, and fixed a non-parole period of four months.  He said that the non-parole period was shorter than usual because of the desirability of the appellant having a period of supervision when released from custody, and because the appellant had already spent more than two months in custody.

18. The magistrate did not give any reasons for rejecting the submission of the appellant’s then counsel that the sentence of imprisonment should be suspended.

    Assessment of the Sentence

19. I consider that the magistrate erred in sentencing the appellant on the basis that he had, in the initial episode, head butted the victim.  In his sentencing submissions, the appellant’s then counsel had indicated that that allegation was denied.  No evidence was called by the prosecution to prove that circumstance of aggravation.  In those circumstances the appellant should not have been sentenced on a factual basis which assumed that that disputed allegation had been established.[2]  However, I doubt that that was a significant factor influencing the sentence.  The most serious aspects of the assault occurred in the second episode when the victim went to leave the hotel.  It seems likely that that is when he suffered his serious injuries.

    [2]    R v Olbrich [1999] HCA 54 at [56]-[61]; (1999) 199 CLR 270 at 293-4.

20. The magistrate also erred in not stating the reduction in the sentence on account of the appellant’s plea of guilty.  It has been said many times, and in any event authoritatively by the Full Court, that the amount of the reduction on account of a plea of guilty should be specified.[3]  In this way, the public policy objectives sought to be achieved by allowing a reduction on account of a plea of guilty may be realised.

    [3]    R v Place [2002] SASC 101 at [81]-[83]; (2002) 81 SASR 395 at 425.

21. The magistrate also erred in not stating any reason for his refusal to suspend the sentence.  A submission to that effect was a major feature of the sentencing submissions made by the appellant’s then counsel.  Those submissions should have been addressed.

22. Although the magistrate did not state the amount of the reduction for the plea of guilty, he did say that he was giving the appellant credit for the plea.  I am unable to see any reason why the magistrate would not have applied a full reduction.  The appellant had admitted the assault when first questioned by the police.  It does not seem that a plea of not guilty was ever contemplated.   I think it fair to infer that a reduction of 25 per cent was allowed.

23. When regard is had to the period previously spent by the appellant in custody whilst on bail, it can be seen that the effective total period of imprisonment which the magistrate thought appropriate was 15.5 months.  The starting point of the magistrate, before reduction on account of the plea of guilty, must therefore have been approximately 20.5 months.

24. It is quite understandable that the magistrate would have regarded this assault as serious.  It was serious.  There were features which aggravated it.  There is the fact that it occurred very shortly after the expiry of a suspended sentence bond; the fact that the appellant chose to resume the assault having been separated from the victim; that the victim was trying to leave the hotel and disengage from the situation at the time when the appellant resumed it; and that serious injuries with continuing effects were caused to the victim.  There are, in addition, the appellant’s poor antecedents.

25. But despite these features, I consider that the magistrate’s starting point was too high.  The incident which occurred about two weeks previously provided a context in which this assault had to be understood.  In addition, there was the psychological evidence that the appellant required treatment of a form not available to him in custody.  Account had to be taken in the sentencing process of the appellant’s rehabilitation as an important aspect of the sentencing.

26. In my opinion, the sentence should not have been more than imprisonment for sixteen months.  The magistrate’s starting point was more than 20% higher than that figure.  It should be regarded as manifestly excessive in the circumstances of this case.

27. I add that in coming to that conclusion I have not acted on the submission of Mr Stokes, counsel for the appellant, that the magistrate’s starting point could be seen to be too high because it was only 3½ months less than the maximum sentence of imprisonment (two years) which could be imposed by a magistrate (Criminal Law (Sentencing) Act 1988, s 19(3)). On the contrary, I reject that submission. The two year maximum fixed by s 19(3) does not provide a reference point below which all sentences imposed in the Magistrates Court are to be scaled. The effect of s 19(3) is to impose a limitation on the power of magistrates with respect to sentence, not a limitation on the appropriate penalty for an offence.[4]  In any event, the two year maximum does not preclude a magistrate from taking as a starting point a sentence which exceeds two years and then reducing that starting point, on account of a plea of guilty or time already served, to a sentence which is two years or less.[5]

    [4]    R v Delphin [2001] SASC 203 at [61]; (2001) 79 SASR 429 at 443; Stehbens v Police [2004] SASC 227 at [24]-[28].

    [5]    R v Delphin [2001] SASC 203 at [61]; (2001) 79 SASR 429 at 423.

28. As I consider that the magistrate’s starting point is too high, it is necessary for the appellant to be re-sentenced.

    Re‑sentence

29. For the reasons given above, I would take as a starting point a sentence of 16 months. That starting point should be reduced by 25% on account of the appellant’s early admissions to the police, and his plea of guilty.  That produces a sentence of 12 months.  Credit should be given to the appellant for the period which he spent in custody between 4 October 2005 and 16 December 2005.  I will round that off as 10 weeks.  Accordingly, the appellant is sentenced to imprisonment for 42 weeks and that sentence is to be taken to have commenced on 22 May 2006 (the day on which he was sentenced by the magistrate).  The period during which the appellant has been on bail since 25 May 2006 pending the hearing and determination of this appeal does not of course count as part of the service of that sentence.

30. As the sentence of 42 weeks is less than 12 months, a non‑parole period cannot be fixed.[6]

    [6]    Criminal Law (Sentencing) Act 1988 (SA), s 32(5)(a).

31. Like the magistrate, I do not consider it appropriate that this sentence should be suspended.  The appellant has had two previous suspended sentences.  Despite having had the benefit of that ameliorative sentencing option, he has not taken advantage of it.  Further, the very seriousness of the assault and the appellant’s persistence in it after an interval, militates against suspension.  I do not consider that good reason has been shown for the suspension of the whole sentence.

32. If the matter was left there, it would mean, paradoxically, that although the appellant has been successful on the appeal, the result of his success is that he would spend longer in custody than may have been required under the magistrate’s sentence.  This would be a harsh, even cruel, result.  It would also mean that effect would not be given to the intention of the magistrate in fixing a lower than normal non‑parole period, to secure for the appellant a period of supervision when released from custody so as to aid his rehabilitation.

33. In those circumstances, I consider that this is an appropriate case in which to invoke the power to suspend a portion of the sentence, contained in s 38(2a) of the Criminal Law (Sentencing) Act. Sections 38(2a) and (2b) provide:

    (2a)    However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—

    (a)     direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and

    (b)     suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.

    (2b)   The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.

34. The effect of those provisions is that a portion of a sentence of imprisonment which is more than three months but less than 12 months may be suspended upon the offender entering into a bond of good behaviour.  The length of the bond cannot extend beyond the period of a sentence of imprisonment which has been suspended.

35. In the particular circumstances of this case, I consider it appropriate to order that the appellant serve 13 weeks in custody, and that the remainder of the sentence of 42 weeks be suspended upon the appellant entering into a bond which will have effect upon his release from custody.  That bond will require the appellant to be of good behaviour and to comply with the directions of the designated Community Corrections Officer including directions with respect to psychotherapy, anger management and consumption of alcohol.  The term of the bond is to be 29 weeks being the balance of the sentence which I have imposed.

    Summary

36. I allow the appeal.  I set aside the sentence imposed by the magistrate.  In lieu thereof, the appellant is sentenced to imprisonment for 42 weeks.  That sentence is to be taken to have commenced on 22 May 2006, but the period during which the appellant has been on bail since 25 May 2006 pending this appeal is not to count as part of that sentence.  The appellant is required to serve 13 weeks of the sentence in custody.  The balance of the sentence is suspended upon the appellant entering into a bond for the sum of $500, to be effective on his release from custody, to be of good behaviour for the balance of the period of the sentence, and during the period of the bond to comply with the directions of a Community Corrections Officer, including directions with respect to undergoing psychotherapy, courses of anger management and with respect to consumption of alcohol.