Turner v Police - [2014] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TURNER v POLICE
[2014] SASC 90
Judgment of The Honourable Justice Bampton
24 June 2014
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
Appeal against the sentence of a Magistrate – defendant pleaded guilty to one count of damaging property and one count of assault – sentence of nine months imposed reduced by five months on account of time spent in custody cumulative upon District Court sentence of three years – non-parole period reviewed and extended from 18 months to 19 months – whether sentence was manifestly excessive – whether Magistrate erred when dealing with the factual basis of his plea – whether Magistrate should have ordered compensation and prosecution fees.
Held: the sentence was not manifestly excessive – appeal allowed for purposes of setting aside the order for compensation and order for payment of prosecution fees.
Criminal Law Consolidation Act 1935 (SA) s 23, s 85(2); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

TURNER v POLICE
[2014] SASC 90
Magistrates Appeal: Criminal

BAMPTON J: This is an appeal against sentence.
On 11 September 2013, Mr Turner pleaded guilty to one count of damaging property, one count of assault and one count of driving unlicensed all committed on 21 October 2012 (the October 2012 offending). When the plea was entered to the charge of driving whilst unlicensed, the police withdrew two more serious counts.
As at 11 September 2013, Mr Turner was serving a sentence of imprisonment that had been imposed by the District Court on 12 March 2013. Mr Turner had been sentenced by the District Court to three years’ imprisonment with a non-parole period of 18 months for the offence of aggravated serious criminal trespass in a residence and aggravated causing harm with intent to cause harm committed on 1 January 2012. He was on bail for this offending at the time of the October 2012 offending.
The agreed factual basis for the October 2012 offending put to the sentencing Magistrate was:[1]
Due to early incidents occurring in the township of Terowie, the defendant attended at [the victim’s] residence. At the time he was armed with an aluminium bat and a wooden hockey stick. He got out of his car and began to yell aggressively to those inside [the victim’s] house. He approached the victim’s property and banged loudly on the alleged victim’s fence with the bat and stick. He then walked over to [the victim’s] car, which was parked under a carport on the boundary line, and hit the car a number of times using the bat to cause damage to the car. While he was doing this he continued to yell repeatedly in an aggressive and threatening manner towards [the victim], to come outside so that he could ‘sort out’ what had happened earlier in the night. The defendant also threw the bat and stick at the back glass windows and doors of the house, causing the windows to smash. The occupants in the house were fearful of being assaulted and called police on two occasions. This incident last for approximately 5 minutes.
[1] FDN 4, [4].
In sentencing Mr Turner, the Magistrate said that he had regard to his personal circumstances, his offending history (which included violent offending), and his prospects for rehabilitation which the Magistrate said was relevant to the leniency which he could extend to him. The Magistrate concluded that, having regard to the seriousness of the offences and his history of violence, it was clear that imprisonment was the only appropriate penalty for the offences of damaging property and assault.
The Magistrate, utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), said that he regarded a sentence of 12 months’ imprisonment as an appropriate starting point. On account of Mr Turner’s guilty plea the sentence was reduced to nine months and by a further five months for the time spent in custody, which the Magistrate rounded up from four months and 21 days. The Magistrate ordered that that sentence be cumulative upon the head sentence of three years’ imprisonment imposed by the District Court on 12 March 2013. That resulted in a head sentence of three years and four months’ imprisonment. The Magistrate reviewed and extended the non-parole period of 18 months to 19 months. He said there was no good reason to suspend the sentence, and that there was no reason the sentence should be reduced further on account of totality.
Mr Turner was also ordered to pay compensation to the victim in the amount of $2,658.94. The Magistrate waived the court fees but ordered that prosecution fees and the Victims of Crime Levies be paid.
Mr Turner complains that:
1the sentence was manifestly excessive;
2the Magistrate erred when dealing with the factual basis of his plea; and
3the Magistrate should not have ordered that he pay compensation and prosecution fees.
At the conclusion of the hearing of the appeal, I dismissed the first two grounds of appeal but allowed the appeal for the purpose of setting aside the order for compensation and payment of prosecution fees. These are my reasons.
As noted by the Magistrate, the offence of property damage contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) carries a maximum penalty of 10 years’ imprisonment. Although, as the Magistrate also noted, he could not impose more than five years’ imprisonment for any offence. Mr Turner had damaged a motor vehicle with a baseball bat and had then thrown the bat and a hockey stick at a home occupied by the victim and his family, smashing the windows of the home.
A basic offence of assault contrary to s 23 of the CLCA carries a maximum penalty of two years’ imprisonment. Mr Turner had yelled aggressively at the victim who was inside his home, whilst banging on the victim’s fence with the bat and hockey stick, causing the victim to be in fear. A victim impact statement prepared by the victim records the fear the victim and his family suffered and the ongoing impact the offending has had on his young family.
The Magistrate had regard to Mr Turner’s personal circumstances and determined that both personal and general deterrence were required. The Magistrate had regard to Mr Turner’s previous convictions (which included offences of violence) and noted that, whilst he was not to be punished for them again, they impacted upon his considerations as they related to leniency and prospects of rehabilitation. The Magistrate also had regard to the seriousness of the offences and the effect of them upon the victim and his family. The Magistrate gave Mr Turner credit for his guilty pleas, credit for the time he had spent in custody, and reviewed and extended his non-parole period.
It is clear from the sentencing remarks how the Magistrate constructed his sentence. It is apparent that personal deterrence and the fact that Mr Turner was not a first offender, and therefore not entitled to the leniency that ordinarily would be extended to a first offender, were matters that influenced the Magistrate’s decision in imposing the sentence he did.
Mr Turner submitted that a conviction alone would have been sufficient in the circumstances bearing in mind that he had spent almost five months in custody. Whilst the immediate custodial sentence with a starting point of 12 months is high, it is within the range of the Magistrate’s discretion and is not, in all of the circumstances, manifestly excessive.
With respect to the second ground of appeal, it was submitted by Mr Turner that the factual basis of the offending was a significant matter to be determined by the sentencing Magistrate.
Mr Turner submitted before the Magistrate that he had committed the offending after the following had occurred:
1His stepson had come home with a bleeding wound to his forehead;
2His stepson told Mr Turner that his friend was dying in a paddock;
3Mr Turner drove to that paddock;
4Prior to entering the paddock, he saw the victim damage his stepson’s car with a star dropper post;
5Mr Turner drove into the paddock and saw that his stepson’s friend was comatose and bleeding profusely from a head wound;
6Mr Turner then struck the victim’s car and house with the baseball bat and hockey stick and caused damage;
7He verbally abused the victim and thereby accosted or impeded him; and
8He then drove his motor vehicle without lawful excuse without being licensed.
With respect to these submissions the Magistrate said:[2]
I was further told that you went there and found Mr Bowden smashing a window of your stepson’s car and with a star dropper. Police have not charged him with that. I do not regard it as proved that he did, but I accept that you believed he had been involved in earlier incidents involving your stepson.
[2] Sentencing Remarks, [4].
Counsel for Mr Turner contended that the prosecution did not accept this version of the facts and as such a fact finding exercise should have been undertaken by holding a disputed facts hearing and allowing the parties to adduce sworn evidence.
It was submitted that the behaviour of the victim was a material issue as it had a direct relationship to the property damage and assault charges and that the Magistrate fell into error by avoiding a determination of the facts. Mr Turner asked that the matter be remitted back to the Magistrates Court to allow a disputed facts hearing to be held.
What Mr Turner seeks to agitate is that there was a reason or explanation for his offending. His counsel said it was “tit for tat” offending and that had the Magistrate formed a more positive view of the facts about the level of provocation he may have seen fit to start at lower than 12 months as a starting point. The Magistrate did not say that he did not accept Mr Turner’s explanation. Rather, he said he did not regard Mr Turner’s allegations regarding the victim’s conduct as proved, but that Mr Turner believed those earlier incidents had occurred. Mr Turner seeks to explain his conduct, but that explanation does not excuse or lessen his conduct.
Accordingly, I do not find that the Magistrate was in error.
Finally, with respect to the third ground, the Magistrate said:[3]
You have not compensated Mr Bowden for the damage, so you can get no credit for doing so. I am going to order that you pay compensation but you have no immediate capacity to do so. Eventually, upon your release, you will have that obligation and I bear that in mind in imposing penalty.
[3] Sentencing Remarks, [7].
The Magistrate had the power to order compensation pursuant to s 53 of the Sentencing Act. In making an order he was obliged to have regard to s 13 of the Sentencing Act which provides:
13—Order for payment of pecuniary sum not to be made in certain circumstances
(1)The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a)     the defendant would be unable to comply with the order; or
(b)     compliance with the order would unduly prejudice the welfare of dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(2)Subject to subsection (3), the court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
(3)In considering whether the defendant would be able to comply with the order, the court should have regard to—
(a)     the fact that the defendant could enter into an arrangement under Part 9 Division 3; and
(b)     any information available to the court as to other pecuniary sums that have been paid, or are payable, by the defendant.
A pecuniary sum is defined by the Act to mean a fine, compensation, costs, a sum payable pursuant to a bond and any other amount payable by order of the court including a Victims of Crime Levy. In accordance with s 14A the Magistrate did not fix a time for payment of the pecuniary sum.
In my view, the Magistrate was in error in making the order for compensation and prosecution fees. He acknowledged that Mr Turner was not immediately able to comply with the order. Section 13 prescribes that a Court must not make an order requiring a defendant to pay a pecuniary sum if the Court is satisfied that the means of the defendant so far as they are known are such that he would be unable to comply. The provisions of s 13 must be applied to a defendant’s circumstances as at the date of the sentence. This construction of s 13 allows for the operation of s 66 which provides that subject to any arrangement under s 70, pecuniary sums ordered by the court are payable within 28 days from (and including) the day on which the order is made. At the time of the sentence, Mr Turner was serving the District Court sentence. He had and still has no capacity to pay. It was submitted to the Magistrate, he was in receipt of the disability support pension as his ability to work is compromised by spinal injuries sustained in a motor vehicle accident. This source of income was supplemented from time to time with contract work. At the time of sentencing submissions he had last worked for two months in 2012 doing fencing work but had to stop because his back caused him difficulties.
Mr Turner has no capacity to pay compensation whilst he is in custody and it cannot be assumed he will have capacity once he is released into the community.
In conclusion the sentence imposed is at the higher end of the scale for this type of offending. However, I do not consider it manifestly excessive taking into account that the offences were committed whilst Mr Turner was on bail. He was on bail for the 1 January 2012 violent home invasion and aggravated causing harm with intent which, like the October 2012 offending, was committed against a background of earlier animosity.
I allow the appeal for the purposes of setting aside the order for compensation and the order for payment of prosecution fees, otherwise the sentence is confirmed.