Van Den Hurk v Police - [2009] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VAN DEN HURK v POLICE
[2009] SASC 22
Judgment of The Honourable Justice Gray
4 February 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS - MAXIMUM STATUTORY PENALTY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - GENERALLY
Criminal Law – appeal against sentence – defendant charged with failing to give name and address as requested by an authorised officer pursuant to Environment Protection Act 1993 (SA) - whether magistrate imposed sentence reflecting conduct not subject of charge – whether magistrate acted beyond power in imposing a sentence of imprisonment – whether sentence manifestly excessive – whether magistrate denied appellant procedural fairness.
Held: Appeal allowed – objects of legal representation – defendant exposed to period of imprisonment beyond magistrate’s power to impose – penalty manifestly excessive –defendant re-sentenced – defendant taken steps towards rehabilitation – unusual circumstances – defendant sufficiently punished – conviction recorded with no further penalty.
Environment Protection Act 1993 (SA) s 90, referred to.

VAN DEN HURK v POLICE
[2009] SASC 22
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Dale Edward Van Den Hurk, was charged on complaint that on 23 March 2008 at Mount Gambier, having been required by Mark William Roberts, an authorised officer, to answer a question under Part 10 Division 1 of the Environment Protection Act 1993 (SA) refused to answer that question to the best of his knowledge, information and belief.
The defendant appeared unrepresented and following the reading of the charge he entered a plea of guilty. The Magistrate recorded a conviction, imposed a period of imprisonment of 21 days but suspended the term of imprisonment upon the defendant agreeing to enter into a good behaviour bond for three years. It was a condition of the bond that he be supervised for a period of three months, that he undertake such courses or programs as may be directed in respect of alcohol abuse and that he make a personal apology to the police officers concerned with his arrest.
Section 90 of the Environment Protection Act provides as follows:
(1) A person who—
(a)hinders or obstructs an authorised officer, or a person assisting an authorised officer, in the exercise of powers conferred by this Act; or
(b)uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or
(c)refuses or fails to comply with a requirement or direction of an authorised officer under this Division; or
(d)when required by an authorised officer under this Division to answer a question, refuses or fails to answer the question to the best of the person's knowledge, information and belief; or
(e)falsely represents, by words or conduct, that he or she is an authorised officer or other person with powers under this Act,
is guilty of an offence.
Penalty: Division 4 fine.
(2) A person who assaults an authorised officer, or a person assisting an authorised officer in the exercise of powers under this Act, is guilty of an offence.
Penalty: Division 4 fine or division 5 imprisonment, or both.
The only penalty provided in respect of a breach of section 90(1) is a Division 4 fine, that is, a fine to a maximum of $15,000.
The circumstances of the defendant’s offending conduct were that, following a noise complaint, police attended at the defendant’s home at Mount Gambier. The defendant was requested by a police officer, being a person authorised under the Act, to state his full name for the purposes of an Environment Protection Order. The defendant refused to do so and he was arrested. At the time the defendant was aged 19 years. He attended Court with his father, but was unrepresented.
The Magistrate commenced his sentencing remarks with the following comment:
Mr Vandenhurk, it seems I have to review my sentencing options. I think it is completely unacceptable Sir that you walk away from here feeling that you can behave in this way and that the Court will simply continue to give you Bonds to be of good behaviour. It is not going to happen that way.
You say you are not in a position to make an apology in the context of doing community service to this community. Then I think the community deserves an extra level of protection from you. It seems to me also that you can make an apology to the two police officers concerned. I am going to make sure that that happens.
The Magistrate described the circumstances of the conduct relevant to the charge in the following terms:
The police came to your door, they ascertained that your parents were away and they asked you to turn the music down and you did. It was then that the police could hear the loud shouting and noise emanating from the home and asked you politely to speak to others to simply bring their voices down. The police, nor this community, were denying you the right to use the privacy of your home in a way that you find enjoyable. Police were polite to you, your response to them was argumentative behaviour, that you were uncooperative, you were abusive and you were aggressive towards them and arrogant. They simply asked for your name and you wouldn’t even give the[m] that. You were charged under the Environment Protection Act.
The community attitude to this sort of offending is well known. They despise it. They despise it because of the inconvenience and the annoyance to them and how it fundamentally disrupts their enjoyment of their own homes, which you subjugate their enjoyment for your own selfish need. It also disturbs people’s sleep. People have to work, people have to go about normal business on the following day. All of which you behave in such a way so as to ignore their needs in that respect.
This is serious offending and considered serious in this community because of the impact it has on others and because it is disrespectful to the rest of the community and because you indulge your own personal needs at the cost of everybody else’s.
For those reasons Parliament has indicated that it is appropriate that people receive a period of imprisonment for up to four years and fines of up to $15,000. These are significant penalties.
The Magistrate then proceeded to impose sentence during the course of which he observed:
I am going to record a conviction. It seems to me your financial circumstances do not permit the imposition of a substantial fine. I am going to impose a period of imprisonment of one month; I will reduce that to 21 days by reason of your guilty plea. I am going to suspend it upon you entering into a Bond to be of good behaviour for a period of three years. I think that might give the community some comfort in the area of which you live for a protracted period.
There will be a condition of the good behaviour Bond that you be under supervision for a period of three months. You are to report today to the Department of Correctional Services, the address will be given to you shortly and set out in the bond. You are to obey their directions for that period of three months and in particular you are to participate in any course or program they think fit associate [sic] with alcohol abuse which is plainly a significant feature in your life for such a young person and is completely out of control. I am also going to order that you make a personal apology to both police officers’ [sic] concerned to whom you were uncooperative, abusive and aggressive. I am going to ask that the Department for Correctional Services engage you in a process that will teach you how to make a formal apology and a proper one. And having participated in that program you are to make that apology in person to the police officer’s [sic] concerned, if they consent, at a time and date that they might agree to.
I can not [sic] make it any clearer to you Sir that the community finds this kind of behaviour utterly intolerable.
The defendant has on this appeal deposed to the events that occurred at the hearing including the following:
When I was at the hearing I [can] recall the Magistrate asking for the charge to be read out and he asked me what I pleaded. I recall the Magistrate asking me whether I had legal representation and I believe that was before I pleaded guilty to the charge. I told him that I did not want legal representation.
Then the prosecutor stood up and told the Magistrate what had happened from his version.
The Magistrate then told me that I should apologize to all the neighbours. If he could make a court order he would but that he was not able to do that. He asked what was my opinion of binge drinking. I did not know what to say as I was very apprehensive but I answered that it was not good for anyone. I hoped that was the answer that he wanted.
I next recall the Magistrate telling me that “(I) cannot believe that you do not have anything to say for yourself”. I did not know what to say to the Magistrate as I was so nervous.
I had prepared a short letter of apology to the Court and eventually my father managed to get one of the Sheriff’s Officers to give it to him. I do not know if he read it when it was given to him because he just put it down and continued to speak to me.
Now produced to me and marked with the letter “DEV3” is a true copy of the letter that was given to the Magistrate.
The Magistrate told me that the penalty for the offence was 4 years imprisonment. I became alarmed and asked the Magistrate if I could get a lawyer. That is when he said, “If you get a lawyer I may not be so kind next time and the punishment may be worse.” I became more alarmed and asked to leave the court and talk to my father Arnold about this.
My father and I left the court and discussed the matter. My father told me that it would be unwise to get a lawyer after what the Magistrate had said about the punishment. We decided not to get a lawyer.
I went back to the court having decided to see if I would get a lesser sentence. I was quite sure about what the Magistrate said and that I was under threat of a greater sentence if I got a lawyer.
The Magistrate did not say anything to me that he could consider dealing with the charge without conviction. I did explain that I had been doing some part time work in the office for my mother.
My father told the Magistrate about some personal problems I had been having concerning anxiety.
The Magistrate asked me if I had anything further to say and I said that I did not.
The Prosecution had mentioned my only previous offence. This had occurred when I was at Beachport on New Years Eve 2007 and two of my friends had been arrested mistakenly by the Police after some other people had caused trouble. I protested to the Police that they had got the wrong persons and in doing so I used bad language. I continued to protest until the Police arrested me. I then pleaded guilty to that charge.
The defendant’s father confirmed this version of the events that occurred in Court. In his affidavit he deposed:
In the course of the hearing I can recall my son asking the Magistrate if he could get a lawyer and the reply from the Magistrate was: “If you come back with a lawyer I may not be so kind next time and the punishment may be worse”. Those were the words used to my knowledge.
My son Dale then asked the Magistrate if he could talk to me outside the court to discuss what to do next. The Magistrate allowed him to that and we left the court. I advised my son that the Magistrate had made it very clear that if he came back with a lawyer he would make the punishment worse. We then decided not to consult a lawyer.
Dale made the decision to go back into the court in the hope of receiving a lesser penalty and to take whatever the punishment would be from the Magistrate. However, we had to make these decisions quickly as we believed that we only had a few minutes outside the court to make the decision.
I can say that I was not left under any illusions in what the Magistrate said at any time. I did not misconstrue his words or place any perceptions on them, the words were simple and direct and left us in no doubt as to what we had to decide.
The allegations advanced by the defendant and his father raise serious questions concerning procedural fairness and advice in comments alleged to have been made by a magistrate with respect to legal representation. In the event it has been unnecessary to resolve the appeal in respect of these grounds as the police conceded that the appeal had to be allowed on other grounds. The police prosecutor’s affidavit disclosed that he could not say whether or not the alleged statements had been made by the Magistrate. As the appeal is to be decided on other grounds, and as the defendant wished to have the matter finalised without further delay or expense, I have decided not to refer the matter to the Magistrate for a report. However, it must be said immediately that a defendant facing prison, particularly a young man facing prison for the first time should be encouraged to seek and not be deflected from the taking of legal advice.
The defendant had one prior court appearance for the offence of disorderly behaviour. On that occasion the matter proceeded without a conviction being recorded and with the defendant being released on a good behaviour bond for a period of 12 months. It appears that the defendant attended to the terms of that bond which came to an end in February 2008.
The Appeal
On the hearing of the appeal it was complained that the Magistrate had imposed a sentence reflecting conduct that was not the subject of the charge; that he imposed a sentence of imprisonment that was beyond power; that he denied the defendant procedural fairness; that he misled the defendant about the value of legal representation; and that in all the circumstances he imposed a penalty that was manifestly excessive.
In my view the penalty imposed by the Magistrate for the offence of failing to provide a name and address to an authorised officer was manifestly excessive and grossly so. To impose such a penalty for this offence on a 20 year old demonstrates a serious misapprehension of sentencing principle. The fact that the Legislature saw fit only to provide penalty of a fine underscores the inappropriateness of the approach taken by the Magistrate.
The respondent accepted that the Magistrate had imposed a sentence that was beyond power and did not gainsay the other complaints. It was conceded that the appeal should be allowed and the defendant be re-sentenced.
The Magistrate’s comments about the annoyance caused by loud noise and bad behaviour in a residential area would be welcomed by many. People are entitled to the peace and quiet of their home and good conduct by neighbours is an essential part of responsible community life. There are common law and statutory offences that are designed to control and deal with such behaviour. However, in the present case that was not the charge brought against the defendant. The only charge was that the defendant failed to answer a question when required to do so by an authorised officer.
There are indications that the defendant, with his family’s support, has recognised his misconduct. He came to Court with his father and with a prepared apology to the Court for his behaviour. When he was confronted with the seriousness of this situation, he indicated he wished to have legal representation. These are all indications of a level of growing maturity. Rather than recognising these factors and building on them, the Magistrate appears to have given them little or no attention or weight.
It is of grave concern that the defendant, his father and any others present in Court, left the Court with an understanding that the Magistrate considered that the seeking of legal representation would only make matters worse. These allegations, if correct, would appear to involve a fundamental misunderstanding of the role of the legal profession in representing clients and assisting the court in reaching a fair conclusion to an issue before it. Had the defendant been legally represented, it is highly probable that the Magistrate would have been advised of the following matters:
-that the Magistrate did not have power to impose a term of imprisonment;
-that having regard to the defendant’s age, the support of his parents, his willingness to apologise and his desire not to re-offend, his prospects for rehabilitation were excellent;
-that steps had been taken to further the defendant’s rehabilitation through counselling and programs to address his immaturity and problems with alcohol; and
-that notwithstanding the defendant’s antisocial behaviour on 23 March 2008 , the defendant was only to be sentenced in respect of the offence of failing to provide his name and address and not for the other circumstances of aggravation that could have led to other offences being charged.
The absence of legal representation in the present case denied the Court of the very real assistance the legal representative could have offered.
The consequences of what has occurred in my view are serious. The defendant has been exposed to a term of imprisonment, albeit suspended, that was beyond the Magistrate’s power to impose. The whole incident must have provided a salutary lesson for the defendant and involved a penalty to which he should not have been exposed.
Re-sentencing
It is appropriate for this Court to re-sentence the defendant. As earlier observed the defendant had a salutary lesson. He was subjected to an order of imprisonment, albeit suspended, and has been the subject of a good behaviour bond for approximately seven months. He has completed the three-month period of supervision. In some ways it is a fortuity that he has had the contact with a supervising officer, as his personal circumstances call for some guidance from an experienced adult. In the unusual circumstances of this matter, it is my view that the defendant has been sufficiently punished and it is appropriate to record a conviction but to impose no further penalty.