Voss v Police No. Scgrg-08-1448 Judgment No. S6475

[1997] SASC 6475

VOSS  v  POLICE

Olsson J (Ex Tempore)

The appellant, who is a single man aged about 20 years, appeals against the severity of sentences  imposed on him on 9 October 1997 by a stipendiary  magistrate. 
The appellant pleaded guilty before the learned  stipendiary magistrate to three separate offences - namely,  an offence of common assault, which was committed on 18  October 1996; and two separate offences - namely, assault police and resist arrest - arising out of what  was the same incident which occurred on 14 June 1997. 
The learned stipendiary magistrate imposed sentences of one month’s imprisonment for the common assault and  three months imprisonment, as a global sentence, with  respect of the other two offences.  He ordered that the two  sentences be cumulative upon one another. 
The magistrate specifically took into account, in  relation to the 1997 offences, the fact that they closely  followed what was a spate of three separate basic offences  of which the appellant had previously been convicted in  February, March and April respectively of this year. 
Those other offences consisted of -
·  First, a conviction  on 6 February 1997 for loitering and resisting police, for  which the appellant was fined $400;

· Second, a conviction on 6 March 1997 for the offences of  acting in a disorderly manner and hindering police, for which he was ordered to perform 100 hours community  service; and

· Finally, a conviction, on 11 April 1997, for the offence of carrying an offensive weapon.  This attracted a  fine of $400. 

For the sake of completeness, I should make the point  that the appellant had also been convicted, in October of 1996, for  driving unlicensed and, in January 1995, for riding a bicycle without a helmet.  I disregard those last two offences for present purposes, as they seem to me  essentially, to be, irrelevant. 
The learned magistrate recorded that the June 1997  offences, with which I will deal first, occurred in the  context of the attendance by police officers at what was  essentially described as, ‘a domestic dispute’.  They noted, at the time, that the appellant was grossly affected by  alcohol. 
As I understand it, the police ascertained that a  disturbance had occurred when the appellant’s former  de facto wife, in effect, refused the appellant access to  his child; presumably, I take it from the documentation on the basis that he was then intoxicated. 
The appellant, while being spoken to by a police  officer, suddenly removed his jacket and, according to the  material before me, pushed the police officer in the chest  with both hands, without warning.  This caused the police  officer in question to lose his balance.  He fell back  upon the police vehicle, which was nearby.  When police  officers thereafter attempted to arrest the appellant, he  struggled violently for some time and, to cut the story  short, lashed out at them on one occasion  with his fist, and, on at least one other occasion, with  his feet.  He also, at the time, verbally abused them. 
In the course of his sentencing remarks, dealing with  this aspect of the matter, the learned stipendiary  magistrate commented:
"That was another incident of you acting against a police  officer".
[That is a reference to the earlier  offences involving police officers. ]
"It seems to me that it is about time you realised - and,  indeed, others in the community realised - that police  officers have a difficult enough job to do attending these  sorts of violent incidents between men and women and others  within the community.  They are entitled, in my opinion, to  the protection that the courts are able to provide and, in  this area, I most certainly will provide that protection as  best I can. 
Those offences are, in my opinion, against a background  of two prior offences involving acts against police officers, deserving of orders for imprisonment.  Hopefully,  during the time that you are in custody, you might mature  and you might come to the realisation that, if you continue  to behave in this way, you are going to be subject to  severe penalties".
The learned stipendiary magistrate also noted the relatively young age of this appellant.  He had  been informed by counsel for the appellant of what I might  describe as the dysfunctional family background of the  appellant and the problems which had arisen in relation to  the appellant’s de facto relationship. However, for reasons  expressed by him, the learned magistrate concluded that a  significant custodial sentence was demanded.  He felt that  the circumstances of the offending and the appellant’s then  recent antecedent record rendered it inappropriate to  suspend the sentence which he proposed to impose. 
It is trite to say that this court has, on numerous occasions, stressed the seriousness of the generic offences of assault police and resist arrest. (See Barry v Samuels (1975) 10 SASR 376 at 377, Miller v Huffa (1980) 24 SASR 595 at 597-8 and Freeman v Binnekamp (1987) 44 SASR 114 at 117-118, by way of example).
I am, therefore, not surprised that, given the nature  and the extent of the appellant’s conduct, a custodial  sentence was, in fact, imposed. 
I must say at once that a custodial sentence was, in  the circumstances, well merited.  The appellant had had  previous warnings in relation to the other offences  involving police officers.  The stage was reached where it seems to me that a custodial sentence was well nigh inevitable.   The  inherent gravity of the offence and the factors of general and  personal deterrence loomed large.  They demanded such  an outcome. 
As I see it, the only real issues which arose for  consideration were what sentence ought to be imposed, in  terms of its length, and whether it should have been  suspended. 
As the learned magistrate obviously appreciated, the then recent antecedent record of the  appellant strongly militated against the suspension of any  sentence which might be imposed on this particular  occasion. It must be said that the appellant had simply  not learnt from his previous experiences before the courts  in relation to his other inappropriate behaviour patterns  involving interaction with police officers. 
I think that, in approaching the matter as he obviously did, there is simply no logical basis for  concluding that the learned magistrate erred in principle,  or otherwise fell into error, in declining to suspend any  sentence which was properly imposed. 
True it is that due recognition had to be given to the  appellant’s timely pleas of guilty but, of course, those pleas did little more than recognise what was the  inevitable. Consideration of his relative youth and, no  doubt, his emotional state concerning his child, as well as his  prospects of rehabilitation, had to be measured against his consistent pattern of antisocial behaviour at that time.  Such behaviour had obviously developed over a period of a number of  months. 
The real issue which, it seems to me, arises in  relation to this particular aspect of the matter is as to  whether, in the circumstances, a custodial sentence of  three months was manifestly excessive.  As Ms Lee-Justine  quite fairly conceded, it was, on any view, a  severe punishment, bearing in mind that this is a young man and that  he has not previously served a custodial sentence. 
I think that, on balance, it must be said that the  learned magistrate did fall into error in imposing such a  severe sentence, as a first sentence involving actual  service of a gaol sentence.  In my view, the justice of the  case would amply have been satisfied by imposing a somewhat  lesser term,  which would have amply brought home to this  appellant that conduct of the type in question will not be  tolerated.  At the same time, it would have reinforced, in an  appropriate way, the position of police, who are always in a  difficult situation in circumstances of this type. 
I therefore propose, in relation to this aspect of the  appeal, to allow the appeal, set aside the sentence of  three months which was imposed, and substitute for it a  custodial sentence of six weeks. 
I now move on to the second aspect of the appeal. 
It is must be conceded that a somewhat  unfortunate situation developed before the learned  magistrate in relation to the charge of common assault. The  offence was committed in what were rather unusual  circumstances.
I think that the most convenient course is  to recite those circumstances as they were put by the  prosecutor. 
He said at the time:  
"Your Honour, with regards to the allegations of assault  committed on 18 October 1996, a Mr Burdett has told the  police that, at about 10.30 p.m. that evening, he was at  his home at Hackham West with his wife.  He heard a knock  at the front door.  On answering the door, he saw a teenage  male and female who both appeared very frightened and asked  to use the telephone.  They stated that a group of youths  were after them.  Mr Burdett allowed the two into his house  to use the telephone. 
Some three minutes later, Mr Burdett answered a second  knock at the door.  On answering the door, he saw four  girls aged about 14-15 years outside.  These girls asked  Burdett to send the first two teenagers outside.  
Mr Burdett refused.  He then walked the four girls to the  end of his driveway.  One of the girls then pushed Burdett  in the chest.  He held this girl away from him and told her  and her companions to get off his property. 
Mr Burdett returned to his house to find the original  boy and girl had gone.  The identity of these two are  unknown. 
Some five minutes later, Mr Burdett heard yelling and  offensive language coming from the end of his driveway.  He  walked to the end of his driveway where he was confronted  by a male person who walked towards him.  Mr Burdett told  the police that he was then struck in the back of the head  by an unknown person.  This blow caused him to fall to the  ground. He then curled up in a foetal position and tried  to protect his face as he was repeatedly and violently  assaulted. 
As a result of the incident, he received a broken nose, fractured right orbital, concussion, bruising to the face  and body, and a sore lower back.  The injuries resulted in  his hospitalisation for five days.
In an interview with detectives on the following 12 January, the defendant told the detectives that he had  been at a party at Poznan Street on the night of the  assault. Five girls came back to the party stating that a  male down the road had hit them.  The defendant walked down Poznan Crescent and spoke with Mr Burdett, asking him if he had hit the girls.  Burdett had replied ‘no’, then started abusing him, telling him to ‘fuck off’. The defendant denied throwing any punches at Burdett but admitted grabbing Burdett in a headlock and pulling him to the ground.  As soon as he did this, the girls that were next to him, started kicking Burdett.  The defendant admitted holding Mr Burdett for about three seconds.  The defendant claimed that he himself received a kick from one of the girls, so he let go and stood back.  The defendant then claimed that the others present, continued to assault Burdett for about three seconds after he let go.  The defendant claimed that two males by the name of Kye and Matthew were involved.  But he does not know their surnames. The defendant told the police that he saw Mr Burdett walk to his verandah.  The defendant’s girlfriend was present.  She did not take part in the assault."
I consider that there was force in the complaint made by counsel for the appellant to the learned magistrate that such a factual impression was not entirely consistent with the basis upon which the appellant had expressly pleaded guilty to the relevant charge. 
It is beyond dispute that there had been an exchange of correspondence between a legal officer representing the appellant and the South Coast Prosecution Unit.
As a consequence, it had been arranged that a plea of guilty would be entered at the hearing.  This was to be done  on the express factual basis that the admitted assault was that of pushing the victim, and then applying a headlock to him.  The prosecution was apparently prepared to concede that it could not establish complicity between the appellant and the other relevant persons who gratuitously assaulted the victim after he had been wrestled to the ground.  As I see it, the prosecution further agreed to accept that the quite significant injuries sustained by the victim had not been occasioned to him by the appellant.
When counsel for the appellant protested to the learned magistrate about the prosecutor’s submissions, the prosecutor consulted his file and then conceded, in effect, that the basis of the plea was, in fact, that contended for on behalf of the appellant.  This led to an application by counsel for the appellant, that the learned magistrate disqualify himself, because of what was said to have been the prejudicial revelation to him of the detailed injuries sustained by the victim.  The learned magistrate declined to do accede to that request.  He proceeded to consider the common assault count on the agreed factual basis as it had been explained to him.
In the event, having dealt with the relevant lead-up scenario, and the fact that the appellant had probably been affected by alcohol, the learned magistrate then said:-
"I understand that it is agreed between the prosecution and the defence that there was mutual pushing by you to Mr Burdett and by Burdett to you.  Either during that pushing or thereafter, you took Burdett into a headlock, you forced him to the ground.  He was then set upon by some, or all of the females who had returned to Burdett’s home with you.  It appears that they laid the boots into Mr Burdett.  He suffered injuries.  He was conveyed to hospital by ambulance. I understand that he spent some five days or thereabouts in hospital, as a result of the injuries he had suffered.
It probably is true that there was not a conspiracy by you or the girls to assault Mr Burdett, but the fact is that as a result of you taking him into the headlock, and forcing him to the ground, you enabled those girls to lay the boots into him, and therefore, cause the injuries that he suffered. In that sense, you are directly responsible for the injuries that Burdett suffered.  As I have said at the outset, Burdett was simply at his home minding his own business when he was imposed upon by the original two youths who attended at his home and subsequently, through no fault of his own, he became embroiled in this particular dispute, at the end of which he suffered severe injuries.
Mr Burdett and, indeed, everyone else in the community, should be protected from that sort of intrusion into their lives. I have no hesitation in saying that that sort of offending is deserving of orders for imprisonment, to bring home to you and to others like you, that severe penalties will be handed out, particularly where innocent members of the community are subjected to acts of violence at their own properties.
In determining the period of imprisonment I do bear in mind that, at least, at the date of that offence, 18 October 1996, you did not have any prior convictions, as far as I am aware. I take that factor into account."
I make two points at this juncture.  First, the relevant correspondence, as I read it, does not, evidence a firm agreement between prosecution and defence to the effect that the injuries sustained by the victim would not be referred to.  The specific agreement was for a plea on the basis of no evidence of joint enterprise or that the appellant inflicted any of the injuries in question. True it is, that a request was made in the correspondence that the prosecution ‘consider not outlining the extent of the injuries to the victim’. But I see no positive acceptance of that proposition. The acceptance which is recorded, is in relation to the specific basis of a plea, which was as I have already indicated.
Second, as the learned magistrate indicated, the gravamen of the offence was not merely that, on any view, it amounted to a serious, unprovoked assault on the victim.  It also provided the occasion for what followed.  As I put to counsel, it rendered the victim vulnerable to what followed. I think that it must fairly be said that the learned magistrate would have sentenced in a partial information vacuum had he not been given most of the information supplied to him.
I say unequivocally that there was, in my view, no reason why the learned magistrate should have disqualified himself in the particular circumstances.  Moreover, such were the circumstances that, notwithstanding the appellant’s plea, his young age, and his lack of antecedents at the time of the first offence, the head sentence imposed in respect of the common assault was certainly not excessive.  Indeed, it may even be described as relatively merciful because there were aggravating circumstances involved.  Not the least of these was that this appellant, in obviously an intoxicated state, came uninvited to the private premises of the victim and was certainly the initial aggressor.
I therefore associate myself, with the sentiments expressed by the learned magistrate, concerning the manner in which the incident developed.  Courts do have a duty, an important duty, to protect innocent victims from what was really unacceptable loutish behaviour.  The only issue which arises is as to whether, due to the mitigating factors to which I have just referred, the sentence imposed ought to have been suspended or served concurrently, if it was to be served at all, with any other sentence imposed.
Whilst I well appreciate the seriousness with which the learned magistrate did view the appellant’s conduct,  I am left with the uneasy feeling that the subsequent conduct of the appellant may well, inappropriately as matter of law, have influenced his thinking concerning the first offence.  Despite the inherent gravity of the conduct, the fact was that the appellant was a young offender, he had no prior record and he did enter a timely plea.  He was not to be punished for an act of being an actual party to the infliction of the injuries which occurred.
It seems to me that the proper course would have been either to suspend the sentence imposed in respect of the common assault, or to have required it to be served concurrently with any other sentence which might have had to have been served.
In the present case, as I am requiring the appellant to serve a sentence of six weeks in respect of the offences with which I have already dealt, I consider that the most convenient course  is to confirm the sentence which was imposed for the common assault, but to vary that sentence by directing that it be served concurrently with the sentence of six weeks imprisonment.
I therefore allow the appeal, in respect of the sentence of common assault, to vary it in that fashion. 
There will, therefore, be orders in the terms which I have indicated.
HIS HONOUR:   Is there anything further which needs to be dealt with?
MR DAVIS:        No.
MS LEE:     No.
HIS HONOUR:   As between you, there is no question of costs, I take it.
MR DAVIS:        Apparently, we usually do ask for the usual cost.  I will just speak to my friend.
HIS HONOUR:   I thought it was sort of a knock for knock agreement, so to speak.
MS LEE:     I believe there was.  I am not sure at the present time whether there still is an agreement in relation to that.
MR DAVIS:        I am in your Honour’s hands.
HIS HONOUR:   What if I simply reserve the question of costs for a further consideration?  The two of you can examine the current policy as between your organisations.  I suspect that, if the policy now is that the costs ought to be allowed, you could let me know and I will make an order without attendance - for an amount which I have no doubt, you will agree between you.  If you can’t, I will bring the matter on again.
MS LEE:     I believe we would be in agreement to $150.

HIS HONOUR:   I would have thought that costs would be allowed in that sum.  I will simply reserve that for further consideration. Now the appellant is on bail?
MR DAVIS:        He was given bail at a different court. I understand he is to hand himself in.  I will check the bail agreement in relation to that.  He has to surrender within the time prescribed.
HIS HONOUR:   Have you any view as to what the period ought to be? It is usually about 48 hours.
MS LEE:     That is what it is usually, within two days.
MR DAVIS:        I just seek leave to speak to my client. If your Honour pleases, his mother was at court.  He wasn’t. The bail agreement is at home.  If they can check that up later today, and he can hand himself in as soon as he needs to.
HIS HONOUR:   Yes, well I am not sure whether the bail agreement does normally prescribe a time, or does it simply say that he surrenders himself if called upon?
MR DAVIS:        Normally, with respect, it says ‘Surrender yourself within X days of the hearing of the appeal if unsuccessful’.  In any event I am instructed that tomorrow morning he will hand himself in to the nearest police station.
HIS HONOUR:   I think we can get over the problem by  my directing that the appellant’s present bail is to be continued for a further 24 hours, and thereafter it lapses. That means he has got to hand himself in within 24 hours.