Toohey v Police

TOOHEY v POLICE
[2001] SASC 44

Magistrates Appeal (Criminal)

OLSSON J

Introduction

This is an appeal against sentences imposed on the appellant by a stipendiary magistrate, consequent upon the recording against the former of convictions of two counts of assault, contrary to the provisions of s 39 of the Criminal Law Consolidation Act, 1935.
Those convictions were the ultimate outcome of a trial on oral evidence before the learned magistrate, in which a co-offender, Ms Bacon, the de facto wife of the appellant, was convicted of assault occasioning actual bodily harm.
The appellant was originally charged, jointly with Ms Bacon, with the offence of assault occasioning actual bodily harm. It was asserted that, on 11 August 1999 at Morphett Vale, the two of them assaulted one Hollinshead, thereby occasioning him actual bodily harm. Both pleaded not guilty. The learned magistrate made findings of fact in which he concluded that, whilst both accused had joined in an incident involving an attack on Hollinshead, and both had assaulted him, it was Ms Bacon who inflicted a quite serious injury on the victim, rather than the appellant. He concluded that it was appropriate to record a conviction of common assault only in relation to the appellant.
As to that conviction he sentenced the appellant to 18 months imprisonment. However, he suspended that sentence upon entry by the appellant into a bond to be of good behaviour for a period of two years.
By way of contrast, Ms Bacon was sentenced to 21 months imprisonment, with a non parole period of 14 months. Her sentence was also suspended upon entry into a bond upon the same terms as the appellant.
The appellant was separately charged with a count of common assault, it being asserted that, on the same date and at the same place [in the course of what was, in essence, a single, continuing incident] he also assaulted one Hawker. The latter was a bystander who observed the attack on Hollinshead and sought to come to his assistance.
The learned magistrate found this charge proved and recorded a conviction in respect of it. He sentenced the appellant to 8 months imprisonment, to be served concurrently with the first sentence. This also was suspended upon entry into the bond.
A non parole period of 12 months was fixed in relation to all custodial sentences.
The appellant complains that both custodial sentences were, in the circumstances, manifestly excessive.

Background Factual Circumstances

It should be noted, at the outset, that there were major conflicts between the respective accounts given by Hollinshead and Hawker, on the one hand, and the two accused on the other, as to what occurred on the day in question. Having considered the evidence given before him the learned magistrate rejected both the appellant and Ms Bacon as credible witnesses, for reasons which he expressed and do not here require repetition. By way of contrast he was disposed, essentially, to accept the version of facts testified to by Hollinshead and Hawker.
The incident in question was a classic example of what is currently termed “road rage”. The key features of the incident, as accepted by the learned magistrate may be summarised thus:-

.At about 11.40 am on 11 August 1999, Hollinshead was driving his red Celica motor vehicle south on Main South Road, O’Halloran Hill. An incident plainly occurred when a 4-wheel drive driven by the appellant was said to have pulled out in front of the Celica, causing Hollinshead to brake heavily and change lanes.
.Hollinshead testified that he pulled out to overtake the 4-wheel drive, whereupon both drivers commenced to make hand gestures and swear at one another. Hollinshead was alone in his vehicle. The appellant was accompanied by Ms Bacon and their four year old son.
.The two vehicles proceeded further south until they arrived at the intersection of Bains Road/Main South Road/O’Sullivans Beach Road. The 4-wheel drive came to a halt, with the Celica fairly close behind it.
.The appellant got out of his vehicle and commenced to walk back towards the Celica, whereupon Hollinshead also exited his vehicle and walked towards the appellant.
.An independent witness, Hawker (who was a Community Services Supervisor with the Department of Correctional Services) was driving a vehicle west along Bains Road at that time. He observed what was occurring and noted that the men met between their two vehicles.
.Hawker saw the appellant grab Hollinshead and push him backwards on to the bonnet of the Celica after hitting the latter several times, principally on the head.
.The appellant was clearly the aggressor. Hollinshead attempted to protect his face and body whilst screaming for help.
.Ms Bacon then emerged from the 4-wheel drive carrying a cylindrical metal object - possibly a pipe.
.Whilst the appellant held Hollinshead with his back pinned against the bonnet of the Celica, Ms Bacon struck the latter at least four blows in the face with the metal object and, in the case of one of them, also on the left elbow. It is clear that, at that stage, the two aggressors were, to some extent, acting in concert, albeit on the spur of the moment. However, the learned magistrate felt unable to find the existence of a common purpose, in the strict legal sense.
.By this stage the witness Hawker had left his car and arrived on the scene. He had, by then, observed the appellant strike Hollinshead more than five times and seen Ms Bacon administer four or five blows with the pipe. He called to both aggressors to “back off” at least twice and telephoned on his mobile for police assistance.
.Hawker then moved in to separate the appellant and Hollinshead. He managed to get Hollinshead off the bonnet and placed himself between the two men. At this stage the appellant poked Hawker in the throat twice and said to him “Fuck off Grandpa. You are an interfering cunt”. The appellant and Ms Bacon returned to their vehicle shortly thereafter and drove off. Hawker noted their registration number, which he supplied to police on arrival. Pending that arrival he rendered first aid to Hollinshead who was obviously dazed and “really wasn’t comprehending very much”.
.As a result of this incident, Hollinshead sustained a depressed fracture of the zygomatic arch, interfering with the movement of the jaw. There was an effusion apparent in the left elbow joint. The fracture was surgically repaired at operation by the Plastic Surgery team at Flinders Medical Centre. The elbow injury was treated by suspension in a broad-arm splint, oral analgesics and ice.
.Hawker did not sustain significant injury as a result of the assaults on him.

Personal circumstances of the appellant

The appellant is 38 years of age. He lives with Ms Bacon and his four year old son on a small hobby farm at Saddleworth. At the time of the trial Ms Bacon worked at the Criterion Hotel, but the appellant was unemployed.
The appellant had a somewhat varied, but fairly consistent, work record over a long period of time. He has spent a substantial amount of time living in the country.
However, he was involved in a motor vehicle accident in 1979, as a consequence of which he was thrown through a windscreen. Not only did he have five teeth knocked out, but extensive laceration of his face necessitated insertion of 100 sutures and two episodes of plastic surgery. He has been left with disfiguring scarring which seems to have precipitated periods of depression. It is said that his conduct on 11 August 1999 was a product of that depression.
It is to the credit of the appellant that he has had no record of offending since 1981.

Were the sentences manifestly excessive?

The maximum sentence provided for by s 39 of the Criminal Law Consolidation Act is two years imprisonment.
In support of his contention that the sentences imposed were manifestly excessive, counsel for the appellant placed various statistics before me. He said that the maximum sentence which had been imposed in recent years for an offence of common assault was 78 weeks, ie the actual sentence imposed in respect of the assault on Hollinshead. He sought to demonstrate that average sentences over that time varied somewhat from year to year. In some years the range was between 9 and 13 to 17 weeks. In others, it was as high as 15 weeks. This was, he said, far below the sentences actually imposed in the present case. In some instances custodial sentences had not been imposed at all.
Whilst he acknowledged that, in Reeves v Police (1997) 70 SASR 451 (“Reeves”) at 453-454, this court, in commenting about so called “road rage” offences, said that the need for general deterrence necessitates a stern response, he argued that the sentences actually imposed were unduly severe. He submitted that the fact that an offence was a “road rage” offence could not, of itself, elevate the crime in the scale of seriousness of its type. He emphasised that it had to be borne in mind that the appellant had been convicted of common assault and not assault occasioning actual bodily harm. This should be reflected in the sentences imposed. He also drew attention to the personal circumstances of the appellant and the need to reflect those in the sentencing process.
In my opinion the statistical information provided is of very limited assistance in the instant case. (See also what fell from King CJ in Yardley v Betts [1979] 22 SASR 108 at 110-111 in this regard.)
There is no distinction between sentences where there have been pleas of guilty as contrasted with pleas of not guilty - nor is it known whether a particular sentence relates to a single offence or multiple offences. All that the information serves to indicate is that there is no established tariff in relation to offences of common assault. The situations giving rise to such offences are extremely varied (Yardley v Betts at 113). They range from mere technical assaults of a relatively trivial nature, to incidents which closely approach assaults occasioning actual bodily harm.
It is stating the obvious to say that any sentence imposed must, inter alia, reflect the inherent seriousness of the specific offending conduct under consideration.
Whilst I agree that the mere fact that the assault under consideration arose in the context of a “road rage” incident cannot properly be resorted to as a justification for elevating an offence of common assault above its inherent gravity, the fact remains that road rage incidents are becoming a matter for serious social concern. The Chief Justice stressed, in Reeves, that the need for general deterrence in such cases does necessitate a stern response. As he put it “A clear message needs to be given to the community that frustration on the road is not to be translated into violence.”
It cannot be forgotten that, whilst the learned magistrate was not prepared, on the evidence, to find a common purpose as between the appellant and Ms Bacon, nevertheless the plain fact of the matter is that, not only did the appellant gratuitously initiate the whole sequence of aggression and deliver five or more blows to the head of his victim, but he also facilitated the series of grave assaults by his de facto wife on Hollinshead by pinning him down on the bonnet of the Celica. Had he not done so, it seems likely that Hollinshead would not have received the serious injury which he actually sustained. Thus, in a very real sense, the pinning down, knowing that the blows were continuing to be administered, was an even more serious assault than the earlier blows actually delivered by the appellant.
In truth this was about as serious an example of road rage as one can envisage, with the appellant being the primary aggressor from start to finish. Moreover, it was his aggressive conduct which plainly stimulated the behaviour of Ms Bacon.
True it is that the appellant is not to be sentenced for the direct outcome of Ms Bacon’s conduct. However, the gravamen of his conduct was that it both constituted a serious physical attack on Hollinshead in its own right and, at the same time, precipitated and rendered possible what transpired at the hands of Ms Bacon.
There cannot be the slightest doubt that the conduct of the appellant merited condign punishment, even given the mitigating factors which had to be taken into account. The factors of general and personal deterrence necessary loomed large as important considerations.
Whilst minds might fairly differ as to the precise sentence which ought to have been imposed in relation to the assault on Hollinshead, I am by no means satisfied that that which was imposed was outside the spectrum of potential sentences which would have been appropriate. Indeed, I am constrained to say that the appellant can count himself lucky that the inevitable custodial sentence was suspended. He might well have been required actually to serve it. Given the circumstances, the learned magistrate extended a degree of mercy which others might not.
On the other hand the sentence imposed on the appellant in respect of Hawker stands on a somewhat different footing.
Whilst this was a nasty incident from Hawker’s perspective, nevertheless, in objective terms, the assaults on him were quite minor and, so far as I can determine, they did not occasion him any significant physical harm. Additionally, it is important to remember that what occurred was, in reality, part and parcel of a single, ongoing incident related to Hollinshead.
In imposing a custodial sentence of eight months, it seems to me that the learned magistrate unwittingly applied what was tantamount to a double counting approach. I think that Mr Gaite, of counsel for the appellant, is correct when he asserts that, in the circumstances, that sentence was unduly harsh.
It seems to me that this was a classic situation in which s 18A of the Criminal Law (Sentencing) Act should have been invoked.
I would, therefore, allow the appeal against the sentence in respect of the assault on Hawker and set it aside. However, the sentence imposed in respect of the offence against Hollinshead should stand, but on the footing that it ought to be regarded as a single sentence pursuant to s 18A in respect of both offences. So seen, it was, in my opinion, amply justified as a proper sentence in respect of the two offences, particularly bearing in mind that the appellant did not qualify for any discount for a timely plea. I repeat, the appellant is singularly fortunate in not having, actually, to serve the sentence.
Accordingly the appeal against the sentence imposed in respect of the Hollinshead offence will be dismissed.

[2001] SASC 44

1 March 2001