Wakely v Police

[2003] SASC 295

WAKELY v POLICE
[2003] SASC 295

Magistrates Appeal

1. DOYLE CJ: Mr Wakely pleaded guilty in the Magistrates Court to having on 30 November 2002 assaulted Christopher Hughes, occasioning him actual bodily harm. He pleaded guilty also to, being a person who was required under s 47E of the Road Traffic Act 1961 (SA) to submit to a breath analysis, having failed to comply with all reasonable directions of a member of the police force in relation to that requirement.

2. On the assault count, the Magistrate ordered that Mr Wakely be imprisoned for five months.  On the breath analysis count, the Magistrate imposed a fine of $700 and disqualified him from driving for a period of 12 months.

3. The appeal against sentence is limited to the sentence of imprisonment.  The appellant complains that the sentence was manifestly excessive; that the Magistrate erred in not suspending the sentence, and that there is a marked disparity between the sentence imposed on him and the sentence imposed on a co-offender.

   Background

4. Mr Wakely was jointly charged with Mr Wells.  Mr Wells pleaded guilty to assault occasioning actual bodily harm.  He was sentenced by a different Magistrate on a different date.  He was sentenced to 15 months imprisonment with a non-parole period of 10 months.  The sentence of imprisonment was suspended upon him entering into a bond to be of good behaviour for two years.

5. The Magistrate before whom Mr Wells pleaded guilty, and who sentenced him, took the view that he was disqualified from dealing with the charges against Mr Wakely.  He proceeded to sentence Mr Wells, and adjourned the proceedings against Mr Wakely to a date for trial.  Ultimately, Mr Wakely pleaded guilty.

6. As will appear, in my view there is a significant disparity between the sentence imposed on Mr Wells and the sentence imposed on Mr Wakely.  This illustrates the undesirability of joint offenders being dealt with separately.  I do not know all the circumstances of the present case, but it would have been preferable, if possible, for the sentencing of Mr Wells to have been deferred until the court was in a position to sentence Mr Wells and Mr Wakely at the same time.  However, there may have been good reason to proceed to sentence Mr Wells when he pleaded guilty.

7. I return to the case against Mr Wakely.  He was sentenced on agreed facts which are set out in detail in the Magistrate’s sentencing remarks.  It suffices to summarise the facts.

8. At about 8:30pm one evening, a police officer was on patrol.  He saw a motor car approaching.  Mr Wakely was driving and Mr Wells was a passenger.  The police officer, Mr Hughes, noticed that neither man was wearing a seatbelt.  He stopped the motor car and gave Mr Wakely an infringement notice.

9. He noticed that Mr Wakely’s breath smelled of liquor.  He questioned him, and he admitted he had been drinking.  The police officer then administered an alcotest to Mr Wakely.  This recorded a reading of 0.224 grams of alcohol per 100 millilitres of blood.  Mr Hughes directed Mr Wakely to accompany him to a nearby police station so that he could administer a breath analysis test.

10. At this stage of events, Mr Wells got out of the motor car and approached Mr Wakely and Mr Hughes.  Mr Wells was carrying a stubby of beer.  Mr Wells was affected by alcohol.  Mr Wakely said to Mr Wells: “He’s doing me for drink driving.”

11. Mr Wells attempted to persuade Mr Hughes not to take further action.  Mr Hughes then asked Mr Wells his name.  During the course of the conversation Mr Hughes arrested Mr Wells for giving a false name.  Mr Wells attempted to walk away, then turned and tried to hit Mr Hughes on the head with the stubby of beer.  Beer spilled over Mr Hughes.  Mr Hughes took hold of Mr Wells and a struggle followed.  They fell to the ground.  I gather that Mr Hughes was in the process of subduing Mr Wells, when Mr Wakely came over, put both hands onto the shoulders of Mr Hughes and pushed him to the ground, telling him to let Mr Wells go.  Mr Hughes grabbed Mr Wakely by the hair and pulled him to the ground.  There was then a struggle between the three men.

12. During the struggle that followed, Mr Hughes felt someone’s fingers being pushed into his eyes.  It was common ground that Mr Wells did that.  Mr Wells was also punching Mr Hughes.  Mr Hughes managed to remove his canister of capsicum spray and to spray Mr Wells and the appellant.  When he discarded the canister, thinking it was empty, Mr Wells picked it up and sprayed Mr Hughes in the face.  During the course of the struggle, when Mr Hughes struck out at one of the two men, he fractured a finger of his right hand.  He was then struck to the face by Mr Wells.  Mr Wells then broke free and began to kick Mr Hughes.  Mr Wakely got on top of Mr Hughes.  Mr Wells then tackled Mr Hughes again, and he let go of Mr Wakely.  Both men then fled.

13. The police arrived shortly after, and after searching the area for some time, found the two men.

14. Mr Hughes was taken to hospital where he received treatment.  He suffered a broken finger, bruising and soft tissue damage.

15. As this brief description indicates, the assault on Mr Hughes was a serious one and was prolonged.  Mr Wells led the assault.  I accept the submission that but for his conduct Mr Wakely would have complied with the directions of Mr Hughes.  On the other hand, at an early stage, when Mr Hughes was in the process of subduing Mr Wells, Mr Wakely intervened and the incident then moved into a new phase.  But for the intervention, the incident probably would have finished then.  In this phase, Mr Hughes was at a significant disadvantage, as he was grappling with the two men.  I accept that during this phase Mr Wells behaved more violently than Mr Wakely.  But there is no doubt that Mr Wakely was an active participant in the assault that ensued.

16. As I have said, I regard the assault as a serious one.  According to the victim impact statement Mr Hughes suffered physical and psychological difficulties as a result of the assault.

17. A relevant factor, although no excuse, was that Mr Wakely and Mr Wells had been drinking together that day.  Each of them was affected by alcohol.

    The Magistrate’s reasons

18. The Magistrate rightly took the view that this was a very serious offence.  The assault was on a member of the police force performing his duty.  There was nothing by way of provocation.  The incident could not be attributed to any kind of misunderstanding.  The assault was prolonged.  It involved the causing of significant harm.

19. It is clear from the Magistrate’s remarks that in the area in which this court sat, there had been a number of occasions on which police officers had been assaulted in the course of performing their duties.  The Magistrate said, quite rightly, that it was the duty of the court to protect police officers as best the court could.  I agree with the Magistrate’s remark that for this kind of offending the sentence must contain a substantial element of deterrence.

20. The appellant was 43 years of age.  It appears that he had had fairly regular employment since completing his schooling.  At the time of the incident he was working as a maintenance worker at a motel.  He was married.  His wife had three children from a previous relationship and Mr Wakely and his wife had two children from their relationship.  Mr Wakely’s wife was not employed, and so he was the sole means of support for the family.

21. Mr Wakely had a conviction for assaulting police in 1982.  He had a conviction for building break and felony in 1981.  Between then and the time of the offence in question he had committed a number of traffic offences, but otherwise had not offended.

22. The Magistrate provided detailed reasons for his decision.

23. He accepted that Mr Wells had initiated the assault, and was the more aggressive of the two.  However, he noted that Mr Wakely intervened when Mr Hughes was in the process of subduing Mr Wells.  He referred to Mr Wakely’s personal circumstances.

24. He accepted that the previous conviction for assaulting police, some 20 years earlier, was of little significance having regard to the lapse of time.  He referred to the difficult and dangerous job that members of the police force have to do, and to the harm inflicted on Mr Hughes.

25. The Magistrate said that the offence required a sentence of imprisonment.  I agree.  As I understand it, this was not disputed before the Magistrate.

26. He imposed a sentence of imprisonment for five months.  But for the plea of guilty it would have been for six months.  No criticism can be made of that sentence.  It was appropriate.

27. He turned to the question of whether the sentence should be suspended.  He said that the circumstances of the offending were “far too serious” for it to be appropriate to suspend the sentence.  I do not agree that that indicates that he ignored factors that might be said to support a suspended sentence.  In brief, those matters are that the appellant had not committed any significant offence for about 20 years, was in steady employment, was the sole means of support for his family, had played a lesser part in the offence and was affected by alcohol.  The Magistrate had referred to these matters along the way.

28. No criticism can be made of the Magistrate’s decision not to suspend the sentence.  Having regard to the circumstances, and putting to one side for the moment the question of disparity, the decision not to suspend the sentence was appropriate.  The seriousness of the offence was indeed an important factor.

29. The Magistrate considered whether, having regard to the sentence imposed on Mr Wells, the sentence should be suspended.  He referred to the desirability of consistency in the sentences imposed on joint offenders, but rightly proceeded on the basis that he was not bound by the sentence imposed on Mr Wells and that he should impose what he considered to be the appropriate sentence.  Accordingly, he declined to suspend the sentence.

30. In the course of what I have already said, I have indicated that I reject the submission that the sentence was in any way excessive, and the submission that the Magistrate erred, apart from the question of parity, in declining to suspend the sentence.  The Magistrate was correct to impose the sentence that he thought was appropriate, leaving it to this court on appeal, should it think it necessary to do so, to intervene to deal with the question of disparity.

31. That does not mean that when joint offenders are sentenced by different Magistrates, no regard should be paid to a sentence already imposed on one of the joint offenders.  But if the Magistrate who sentences the second offender considers that the earlier sentence is unacceptably low or unacceptably high, the Magistrate should impose such sentence as is appropriate, leaving it to this court on appeal to decide whether questions of parity require a change in the sentence: The Queen v MacGowan (1986) 42 SASR 580 at 583 King CJ. This allows some scope for the joint offenders to be brought before the court on appeal, although often that will not be possible. It did not occur in this case.

    Disparity

32. I turn now to the question of whether there is such a disparity between the sentence imposed on Mr Wells and that imposed on Mr Wakely that this court should interfere.

33. I must say, with respect to the Magistrate who sentenced Mr Wells, that I regard the sentence that he imposed as inappropriate.  The sentence of 15 months imprisonment is, if anything, rather heavy.  But it was wrong to suspend the sentence.  Mr Wells initiated the assault, and was the more violent of the two men.  His record appears to have been a little worse than that of the appellant.  I can find nothing in the sentencing remarks in relation to Mr Wells to justify the decision to suspend the sentence.

34. It is important that the punishment imposed on joint offenders should reflect a consistent approach.  An unjustified inconsistency or disparity in the penalty imposed on joint offenders will rightly be regarded by the public as unfair and unjust, and will erode public confidence in the judicial process.  As well, an unjustified inconsistency or disparity is unfair to the offender who is prejudiced by that inconsistency or disparity.

35. Different punishments may be imposed on joint offenders.  Differences in their involvement in the offence and in their personal circumstances might warrant different punishments.  So might the fact or timing of a plea of guilty, the attitude of the respective offenders to the offence and prospects of rehabilitation.  But after allowance has been made for all relevant matters, it might still appear that there is an inconsistency or disparity that cannot be explained or justified.  Even then the difference in the punishments must be a substantial one, outside the range that is inevitable and acceptable, bearing in mind that sentencing involves balancing a wide range of factors, and that for any given offence and offender a punishment within a certain range will be appropriate.  The most that can ever be done in relation to a particular offence and offender is to identify a range within which the appropriate punishment should fall.

36. When a court of appeal is confronted by an unjustified or unwarranted disparity between the punishments imposed upon joint offenders, the court is entitled to intervene.  If the disparity would engender a justifiable sense of grievance, the court can reduce a sentence that is not, standing alone, inappropriate or excessive: Lowe v The Queen (1984) 154 CLR 606 at 609-610 Gibbs CJ; at 613 Mason J and at 623 Dawson J; Postiglione v The Queen (1997) 189 CLR 295 at 301 Dawson and Gaudron JJ; at 309 McHugh J and at 322-323 Gummow J; MacGowan at 583 King CJ. The court may find it necessary to reduce the sentence in question below what is an appropriate sentence, but such cases will be exceptional; Lowe at 613-614 Mason J and at 623 Dawson J; Postiglione at 341 Kirby J. It may be necessary to leave the sentence stand in the public interest, to avoid compounding the error; MacGowan at 583 King CJ. In dealing with such cases the court exercises a discretion in which considerations of justice to the individual and broader considerations of justice must be balanced; Lowe at 610 Gibb CJ; MacGowan at 583 King CJ.

37. Mr Wells was sentenced to imprisonment for 15 months, and Mr Wakely to imprisonment for five months.  It was appropriate that Mr Wakely’s sentence of imprisonment should be less.

38. The fact that Mr Wells’ sentence of imprisonment was suspended does not mean that he has not been sentenced to imprisonment.  The sentence of 15 months’ imprisonment stands.  If Mr Wells breaks the conditions of his bond at any time during the term of 2 years he may be ordered to serve the sentence of 15 months’ imprisonment.  Should that occur, there would be no appearance of disparity.  But the decision to suspend Mr Wells’ sentence meant that Mr Wells was given another chance to mend his ways, a chance that was not extended to Mr Wakely.  Making every allowance for the discretionary nature of the decision to suspend a sentence of imprisonment, I can find no reason to distinguish between Mr Wells and Mr Wakely cf The Queen v Palliaer (1984) 35 SASR 569 at 573 Wells J. The end result is that there is an unjustified disparity between the sentences, although should Mr Wells ultimately serve his sentence there would be none.

39. There is no entirely satisfactory remedy available to the court.  The sentence imposed on Mr Wells is not before the court, and cannot be varied.  The sentence that the Magistrate imposed on Mr Wakely was appropriate.  To wholly suspend that sentence would produce an unacceptably lenient outcome.

40. I consider that justice can be done by allowing the appeal, and by making an order under s 38 of the Criminal Law (Sentencing) Act 1988 (SA) that Mr Wakely serve one month of the sentence of 5 months in prison, and that the remainder of 4 months be suspended on condition that Mr Wakely enter into a bond in an amount of $100 to be of good behaviour for the period of the bond. A bond for a period of one year would be appropriate, but by virtue of s 38(2b) the term of the bond cannot extend beyond the period of the suspended imprisonment, and accordingly the bond will be for a period of four months from the date on which Mr Wakely is released from prison. When he is released from prison the bond will have 4 months to run.

    Conclusion

41. Accordingly, I order that the appeal be allowed.  I order that the sentence of imprisonment imposed by the Magistrates’ Court be varied by ordering that Mr Wakely serve a period of one month of the imprisonment ordered.  I further order that the remainder of four months be suspended on condition that Mr Wakely enter into a bond in the sum of $100.00 to be of good behaviour for a period of four months commencing on his release from imprisonment.