Toon v Police No. Scciv-01-1306

TOON v POLICE
[2002] SASC 6
Magistrates Appeal: Criminal

This is an appeal against the penalty imposed in the Magistrates Court sitting at Christies Beach, following the appellant’s plea of guilty to charges of assault and resisting arrest.
Both charges arose out of the same set of circumstances.
On 8 April 2000, the appellant and his wife were admitted to the McLaren Vale Hospital (“the hospital”) suffering from the effects of drug and alcohol consumption. At about 10.50 pm that night, a registered nurse, Ms Christine Roebuck (“Ms Roebuck”), went to the appellant’s room to give him medication, but found that he was not there.
At about 12.15 am the next morning Ms Roebuck was alerted to the appellant’s presence in his wife’s room. Ms Roebuck could hear the appellant yelling from the room.
The appellant came out of his wife’s room into the hallway and confronted Ms Roebuck. He demanded that he and his wife be discharged.
Ms Roebuck then organised some discharge papers and returned to the appellant’s wife’s room. The appellant grabbed the papers and screwed them up, continuing to shout.
As Ms Roebuck backed out of the room, the appellant lunged at her and grabbed her by the throat with his left hand. He dragged her backwards, causing her to lose balance and fall. During the struggle, Ms Roebuck’s glasses were knocked off. The appellant and his wife then left the hospital.
The police were called and informed of the events which had occurred. They searched for the appellant, but were unable to find him. They returned to the hospital to obtain further details from Ms Roebuck.
Whilst the police were doing so, the appellant returned. The police informed the appellant that he was under arrest. At this, the appellant jumped on to a balcony of the hospital in an attempt to escape. The police attempted to take him into custody, but the appellant resisted. Finally he was brought to the ground. It took four police officers to subdue him.
The appellant was taken to the Christies Beach Police Station. As he was being charged, the appellant fell unconscious. He was taken by ambulance to Flinders Medical Centre for medical attention.
The appellant was sentenced on 6 September 2001. The learned sentencing magistrate imposed a term of 10 months imprisonment, after allowing 2 months discount for the appellant’s plea of guilty. Pursuant to s 38(2a) of the Criminal Law Sentencing Act 1988, the magistrate directed that the appellant serve one month of the sentence, the balance of 9 months being suspended upon the appellant entering into a good behaviour bond for the same period, in the sum of $400.
It is against this sentence that the appellant appeals.
In his notice of appeal, the appellant sets out the following grounds of complaint:
“a.The Learned sentencing Magistrate failed to take any or any adequate account of the Appellant’s rehabilitation as a factor in sentencing.
b.The Learned sentencing Magistrate failed to take any or any adequate account of the Appellant’s employment as a factor in sentencing.
c.The Learned sentencing Magistrate failed to take any or any adequate account of the Appellant’s psychiatric condition at the time of the offence as a factor in sentencing.
d.The Learned sentencing Magistrate placed undue emphasis on the factor of general deterrence in sentencing in the context of sentencing an accused whose offence was committed under a mitigating psychiatric background.
e.The Learned sentencing Magistrate failed to take adequate [account of] the effect of the sentence on the rehabilitative sentence imposed by Judge Herriman of the District Court on 2 February 2001.”
The appellant, who is now 37 years of age, has a history of drug and alcohol abuse. He has a 5 year old daughter by his second wife and an 8 year old daughter by a previous relationship, together with two other children by his first marriage.
He has an extensive criminal record dating back to 1980. There were many behavioural offences, including prior convictions for offences involving violence, such as disorderly behaviour, assaulting police and damaging property.
As well, he has committed a number of drug-related offences, the first of which is recorded in 1982.
The appellant admits having first smoked marijuana when he was 14 years of age, and later becoming addicted to heroin. He attributes the majority of his offending to substance abuse.
About two months before the offences now in question were committed, namely in February and March 2000, he was involved in three separate sales of heroin, which turned out to be controlled police purchases. As a result, he was charged with selling heroin, possessing heroin and unlawful possession. Those charges were dealt with in the District Court. A prison term of 2 years and 4 months was imposed, which took into account 8 months already spent in custody. The court fixed a non-parole period of 18 months. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of 3 years, subject to conditions which, inter alia, obliged the appellant to participate in treatment programs for his drug abuse.
When he was sentenced in September 2001 on the offences now in question, he had served about six months of the bond.
The learned sentencing magistrate had the benefit of a pre-sentence report which indicated that the appellant had not commenced a group program to address his alcohol and drug abuse, but that he had undertaken counselling. The author of the report indicated that the appellant had made “considerable progress in his endeavours to remain drug and offence free”. The report proceeds:
“He continues to have the support of his parents and wife, and acknowledges the significant retribution he owes for his previous lifestyle choices. He is keen to stabilise himself in employment and to be a good provider to his wife and children. Yet he recognises his vulnerability and welcomes the assistance of professional intervention available to him through the Department.”
The learned sentencing magistrate also had the benefit of a detailed psychological report which had been furnished with respect to the District Court matters. The psychologist, Dr Jack White, reported that the appellant satisfied “the relevant diagnostic criteria” for alcohol abuse, opioid dependence (in remission), amphetamine abuse (in remission), cannabis dependence (in remission) and anti-social personality disorder.
The matter which is of most concern in considering the appeal is the submission that the imposition of a custodial term, albeit for one month, cuts across the program of rehabilitation which was imposed by the learned sentencing judge when he was sentenced in the District Court on 2 February 2001.
During the course of his sentencing remarks the learned sentencing magistrate observed:
“You appeared in the District Criminal Court in February of this year on charges of selling heroin. Apparently you were ordered to be imprisoned for some two years and four months with that sentence of imprisonment being suspended upon you entering into a bond requiring you to be of good behaviour for three years. I have not been provided with the judge’s sentencing remarks in that matter. I note however that prior to your sentencing in the District Criminal Court you had been kept in custody on those charges for approximately eight months. I am also told that at the time of that sentence being imposed upon you, you had been drug free for the period of time you had been in custody. I understand that you are still drug free.
I am asked not to impose a sentence upon you that might interfere with the sentence imposed by the judge in the District Criminal Court. There is some good sense in that submission and it is something that I would normally seek to achieve. However, I am not prepared to do that in your case with your offences. In my considered opinion the deterrent element and the public protection element of sentencing must prevail. Your victim was a female nurse who on the night and the morning of 9 April went to work to help people. In the course of her work she was physically assaulted in a frightening manner. She is entitled to expect as every other nurse working in hospitals throughout this State is entitled to expect the courts to impose stern penalties on those who commit these types of act. Your counsel has this afternoon informed me that you have through your doctor apologised to the nurse.”
Although it is clear from that passage that the learned sentencing magistrate gave consideration to the effect which any custodial sentence might have upon the opportunity for rehabilitation afforded by the bond upon which the appellant had been released in the District Court, a question arises as to whether he gave sufficient weight to that consideration.
I dealt with a somewhat similar situation in Mayfield v Police.[1] In that case, the appellant was sentenced to a substantial term of imprisonment for an admitted charge of receiving. About six months earlier he had been released on a bond and suspended sentence of imprisonment for a number of other dishonesty offences.
[1] (Unreported) Judgment No [1999] SASC 204, 14 May 1999.
During the course of my judgment I observed:[2]
“Mr Tothill from that point argued that the effect of the sentence under appeal imposed on 11 March 1999 was effectively to frustrate the opportunity for rehabilitation which had been created by the learned sentencing magistrate who dealt with the appellant in June last year.
That argument has a lot of force. This court has long recognised the undesirability of a subsequent sentencing court imposing a sentence which frustrates an opportunity for rehabilitation that has been created by a court which has dealt with the offender on an earlier occasion. The leading authority which deals with the matter is Power v French.[3] However, as Mr Ahern for the respondent pointed out during the course of argument, that case may, in one sense, at all events, be distinguished on the footing that there, a carefully constructed sentencing package created by a judge of this court was frustrated by the imposition of a custodial term by a magistrate sitting in judgment upon the offender on a later occasion. It is clear from the judgment of Bray CJ in that case that he took the view that even if the sentencing judge in this court had been aware of the circumstances of the offending dealt with by the learned sentencing magistrate on the later occasion, that would not have affected the sentence which was imposed in this court.”
[2] Ibid para 16-17.
[3] (1973) 6 SASR 100.
Here, it is not clear whether or not the learned judge in the District Court was aware of the charges now in question, which at that stage were pending. But even if he had been made aware of them, he could not have proceeded on the basis that they would be the subject of a plea, as the question whether or not the appellant would plead guilty was unresolved at that stage. This is because the appellant was awaiting the psychologist’s report which was not available until after the appellant had been sentenced in the District Court.
As I pointed out in Mayfield (supra), it is, of course, much better if offenders are dealt with on the one occasion for all outstanding offences. As I said in Mayfield:[4]
“Tensions arise when there are successive sentences pronounced some months apart, and in such circumstances the arguments which found favour in Power v French will invariably be put forward.”
[4] (Unreported) Judgment No [1999] SASC 204, 14 May 1999, para 18.
In this case, however, I am satisfied that there was no manipulation of the sentencing process, in the sense that there was no lack of candour as to disclosure of the other pending charges in the submissions put to the sentencing judge who dealt with the appellant in the District Court. Further, there seem to have been good reasons why it was not possible at that stage for the charges pending in the Magistrates Court to be brought up into the District Court to be dealt with at the same time.
In those circumstances, there is much force in the argument that the course taken by the learned sentencing magistrate in this case, if allowed to stand, will substantially frustrate the opportunity for rehabilitation which was created in favour of the appellant in the District Court.
Further points were argued by Mr Richards who appeared for the appellant on the hearing of the appeal.
He submitted that the learned sentencing magistrate was in error in imposing a short term of imprisonment in circumstances in which this could, and in the events which happened did, cause the appellant to lose his employment. As it happens, after first losing his job when sentenced by the learned magistrate, since his release on bail pending the hearing of the appeal, the appellant was able to get his job back. However, this was only after a number of approaches to his employer. It seems likely that if he is obliged to serve out the rest of the term imposed by the learned sentencing magistrate, he will lose his employment.
There is authority in this Court which supports the view that, generally speaking, a sentencing court should be reluctant to impose a short custodial sentence where this will have the effect of dislodging the offender from his employment.[5] While there are occasions when, notwithstanding that view, the imposition of a short custodial sentence cannot be avoided, that principle is a matter which should be borne in mind.
[5] See, for example, Gardener v Janic (1975) 12 SASR 495 and Crafter v Police Judgment No [2001] SASC 336, Mullighan J, 27 September 2001, unreported.
Mr Richards made the further point that the learned sentencing magistrate failed to give sufficient weight to the evidence as to the appellant’s mental state. During the course of his sentencing remarks the learned sentencing magistrate stated:
“Your counsel ..... explained that throughout the whole incident you were suffering the effects of your drug and alcohol consumption and you were in a state where you were likely to act aggressively and impulsively.”
However, the magistrate did not expressly refer to the diagnosis by Dr White of an anti-social personality disorder. Perhaps more importantly, it appears that after the appellant was admitted to Flinders Medical Centre at the request of the arresting police officers, he was noted to be abusive, irritable, agitated and threatening. He demanded Temagsic. As he seemed to be uncontrollable, at the request of the medical staff at Flinders Medical Centre, he was admitted to Glenside Hospital, where he was compulsorily detained for about a day.
At the hearing of the appeal, I received, without ruling on their admissibility, notes of observations made at Flinders Medical Centre and at Glenside Hospital. I now exercise my discretion in favour of admitting the documents.
The Glenside Hospital notes indicate that the appellant was observed to be in much the same condition as was the case when he was seen at Flinders Medical Centre. Additionally the notes indicate that he said that he would “... kill someone or rob someone to get money so he could have a hit” and that he was expressing suicidal and homicidal intentions. The day before he had attempted suicide.
In all the circumstances, in my view, the appeal should be allowed.
I reach that conclusion having regard to three aspects of the case:
(a)the need to preserve the ability of the appellant to serve out the bond imposed in the District Court, with the opportunity which that affords for his rehabilitation;
(b)recognition of the principle that where possible short terms of imprisonment should not be imposed where they have the effect of terminating the offender’s employment; and
(c)the fact that it seems likely that the learned sentencing magistrate failed to accord sufficient weight to the appellant’s mental state at the time of the offending.
My allowance of the appeal should in no way be understood to suggest that I in any way condone the appellant’s conduct, or that I in any way deny the strength of the argument that the courts should lend their assistance to ensure that nurses and others in vulnerable occupations are offered appropriate protection by the courts.
Neither do I underestimate the seriousness of the offence of resisting arrest.
While I acknowledge the force of those considerations, this case indicates the delicate balance which must sometimes be struck between factors of that kind, and pursuit of the goal of rehabilitation of the offender.
I would allow the appeal and quash that part of the sentence under appeal pursuant to which the learned sentencing magistrate directed that the appellant serve one month of the sentence of imprisonment of nine months. In lieu thereof I substitute an order that the whole of the term of imprisonment of ten months be suspended upon the entry into a bond by the appellant, otherwise on the same terms and conditions as the bond imposed in the court below.
All other elements of the sentence under review are to remain in full force and effect.
It will be necessary for the appellant to enter into a fresh bond. It should be expressed in terms operative from 6 September 2001.
I will discuss with counsel the question whether arrangements should be made for the bond to be entered into in this Court or in the Magistrates Court.

[2002] SASC 6

18 January 2002