WEBB v Police - [2007] SASC 4

Supreme Court of South Australia
(Magistrates Appeals: Civil)
WEBB v POLICE
[2007] SASC 4
Judgment of The Honourable Justice Layton (ex tempore)
15 January 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The appellant pleaded guilty to throwing a missile, namely a bottle, so as to be likely to injure a person or damage property - appellant was at a party at which police were called to attend - appellant threw his bottle over a fence and onto the street where police officers and their vehicles were present - not known where bottle landed - appellant claimed he did not intend to injure police or damage police property - appellant convicted and sentenced to 21 days imprisonment, suspended upon entry into a two year good behaviour bond - whether sentence was manifestly excessive - whether sentencing remarks of the Magistrate were inconsistent with him having given the appellant the "benefit of the doubt" regarding the appellant's intention - whether Magistrate was in error in imposing a sentence of imprisonment - Held: Sentence was not manifestly excessive - the sentencing remarks do not reveal any inconsistency - no error of the Magistrate in considering that imprisonment was appropriate - appeal dismissed.
Summary Offences Act 1953 s 51(1); Young Offenders Act 1993 s 58; Criminal Law (Sentencing) Act 1988 s 11, referred to.
Ladd v Police [2001] SASC 177; Meeuwsen v Police [2003] SASC 306, considered.

WEBB v POLICE
[2007] SASC 4
Magistrate’s Appeal: Criminal
LAYTON J:
Introduction

This is an appeal against a sentence imposed by a Magistrate on 3 November 2006. The appellant pleaded guilty to throwing a missile, namely a bottle, so as to be likely to injure a person or damage property contrary to s 51(1) of the Summary Offences Act1953 (SA). The maximum penalty for this offence is $10,000 or imprisonment for two years.
The appellant was convicted and sentenced to imprisonment for 21 days which was suspended on the condition he enter a two year good behaviour bond in the sum of $400. The circumstances of the offending are set out in the affidavits of Stephen Andrews filed on 22 December 2006 and Ross Anthony Colthorpe filed on 11 January 2007.
Counsel for the respondent, Ms Lee-Justine, objected to certain paragraphs in Mr Colthorpe’s affidavit on the basis that certain matters were argument rather than submissions as to the circumstances of the offending as put before the Magistrate. No issue is taken by Mr Colthorpe on that basis. There were some further minor disagreements with regard to the actions of the appellant after he had thrown the bottle, but I will turn to that shortly.
Circumstances of offending
The prosecution alleged that at about 12.30am on 30 October 2005 police attended a party at Truro Street at Port Noarlunga South, which had got out of hand. When the police alighted from their motor vehicles which were parked on the street, and approached the party, they were pelted with bottles by party-goers.
Counsel for the appellant, Mr Colthorpe, submitted to the Magistrate that at about that time the appellant had been drinking very heavily. He had gone behind a shed to urinate and when returning observed a commotion and the presence of police. He then threw a bottle which he had in his hand over a fence into the street.
The prosecution alleged that a police officer had seen the bottle thrown over the fence by the appellant and that its direction had been towards police vehicles, but the police officer did not see where the bottle landed. The police officer also observed that the appellant upon seeing him had immediately cowered on the ground. Counsel for the appellant submitted to the Magistrate that he accepted that this action indicated that the appellant realised the seriousness of what he had done.
The appellant was immediately arrested but was not interviewed because of his demeanour, which apparently was aggressive, and appears to have been associated with the large amount of alcohol he consumed. In the submissions before me there appeared to be a slight difference of opinion as to the way in which the aggressive action occurred. Mr Colthorpe said that the police prosecution’s allegation of aggression and anti-police behaviour was not the case. Ms Lee-Justine submitted that so far as aggression was concerned, it was not necessary to take into account any aggression which may have occurred after the event as it was only relevant if there had been aggression before the event. She took no position with the submissions made by Mr Colthorpe on the matter of aggression.
The appellant was placed in custody for a period of five and a half hours. The appellant has no previous convictions but the Magistrate was informed about an incident which had occurred in November 2002 when the appellant was 16 years of age. He pleaded guilty to throwing a missile under the same section but was dealt with by a Family Youth Conference. In my view, this offending was quite correctly disregarded by the Magistrate, having regard to s 58 of the Young Offenders Act and the decision of Lander J in Ladd v Police (2001) SASC 177.
At the hearing before the Magistrate, counsel for the appellant submitted that the appellant did not throw the bottle with the intention of injuring any person, and in particular of injuring any police officer, or damaging any property, in particular property of the South Australian Police. Mr Colthorpe emphasised that the appellant had already spent five and a half hours in custody and submitted that it was a sobering experience. That submission was also made before me.
Further, at the hearing before the Magistrate, Mr Colthorpe emphasised that the appellant had acknowledged when spoken to by police, that he had behaved like a ‘dickhead’. It was submitted that this statement was indicative of remorse. It was also submitted that he could not explain why he threw the bottle. A similar submission was made at the hearing before me.
Contentions of the appellant
Mr Colthorpe raises a number of criticisms with regard to the sentencing reasons. The primary criticism is that whilst the Magistrate indicated that he was giving the appellant “the benefit of the doubt” as to whether he intended to throw a bottle at police or at police vehicles, later expressions in the Magistrate’s reasons indicated an inconsistency in his approach. It was submitted that a less culpable account would not place the offending in the “extremely serious” category. It was submitted by Mr Colthorpe that the earlier reference by the Magistrate to anti-police behaviour, and the categorisation of the appellant’s behaviour as being “extremely serious”, ultimately led to a manifestly excessive sentence. Further, it was submitted that the imposition of a term of imprisonment, albeit later suspended, was inconsistent with a genuine finding that the appellant did not join in with the angry party-goers, and it did not give the appellant the “benefit of the doubt”.
Having carefully read the remarks of the sentencing Magistrate, I consider that they do not necessarily reveal the inconsistency alleged by Mr Colthorpe. As Ms Lee-Justine indicated, the offence of throwing a missile contrary to s 51 does not require proof of an intention to injure, but simply a deliberate act of throwing a missile such that it would be likely to injure a person or cause damage. It would appear from the facts that the appellant prior to throwing the bottle observed a commotion and the presence of police. In my view, regardless of whether he joined in with others, he clearly threw the bottle over the fence at a point when he knew that the police were in attendance. As soon as he had thrown the bottle he observed a police officer and cowered to the ground. Although he may not have thrown it with a specific intention of injuring a police officer or damaging a police vehicle, he was reckless as to the consequences of his actions. The act precisely coincided with the time at which police were known by him to be present.
Given the appellant’s knowledge of the presence of police at the party at the time of throwing the bottle over the fence, I agree with Ms Lee-Justine’s submission that the bottle was thrown in circumstances which are aggravating. The bottle was thrown in circumstances where police were in attendance and where any injury or damage to be caused, was more likely to be caused to a police officer or to a police vehicle outside the premises at the time. In my view, throwing a bottle at a time after police attend to control an out of hand party demonstrates very serious behaviour.
The Magistrate in his reasons may have gone further than he should have by appearing to associate the anti-police actions of other party goers who specifically pelted police officers, with the individual conduct of the appellant. However, I am not persuaded that the appellant’s conduct, even individually considered, would not in all of the circumstances amount to very serious behaviour. As the Magistrate correctly observed, there is a community interest in protecting police from being confronted with additional gratuitous danger when they perform their work. There is, therefore, a need for general deterrence in the circumstances of the appellant’s actions in this case. There is also the need for personal deterrence.
It was submitted by Mr Colthorpe that pursuant to s 11 of the Criminal Law (Sentencing) Act 1988 (SA) imprisonment should not be imposed except in certain named circumstances. He correctly submitted that none of the circumstances in s 11(1)(i)(ii) to (iii) applied, however there is still the issue as to whether s 11(1)(iv) applies in the circumstances of this case. Mr Colthorpe submitted that with regard to sentences of imprisonment, the first consideration should be whether or not imprisonment should be imposed at all, and it should only be a matter of last resort. This submission is correct. However, in my view, having regard to the nature of the offending, I consider that it was appropriate in all of the circumstances for the Magistrate to have considered imprisonment available by virtue of s 11(1)(iv), as being very serious offending. On that basis, I consider his general approach to be correct.
There is then the question of the length of the period of imprisonment. Whilst a sentence of 21 days may be considered a somewhat solid sentence in a case such as this, I consider on the other hand that it was very serious conduct. I have regard to the maximum penalty which is a two year imprisonment. I have regard to the aggravating circumstances namely, that the offending occurred in circumstances where the appellant knew that the police were in the vicinity at the time, and that it was an immediate threat rather than a threat that may have occurred at a later point in time.
Whilst I may not have been persuaded of 21 days as being an appropriate period of imprisonment, nonetheless I consider it was within a reasonable range of imprisonment, particularly when coupled with the later decision by the Magistrate to suspend the sentence. In my view, it is necessary to look at the overall sentence and not just take a ‘piecemeal’ approach once a decision has been made with regard to imprisonment. I consider that there is no error with regard to that.
I also note in the written submissions of Mr Colthorpe, although not taken up in oral argument, that it was submitted that the Magistrate had not overtly eliminated other sentencing options expressly before considering imprisonment. I note that the Magistrate has made reference to certain personal circumstances, being the appellant’s youth and his lack of previous convictions. I also note that the appellant appears to have a stable home life, with good work history and prospects. A number of those features, but not all, were mentioned by the learned Magistrate. I consider those to be appropriate matters for which regard may be had and that they would also be relevant to the question of imprisonment.
I also have regard to the argument which was expressed in written form by Mr Colthorpe, as to whether the Magistrate wrongly considered the aspect of suspension prior to setting the term of imprisonment. In my view, the sentencing remarks indicate that the Magistrate had already indicated he would impose a sentence of imprisonment of 21 days, before then considering suspension, having regard to age and the lack of prior relevant history. I consider no error was made on that basis.
In summary, having regard to the submissions by both counsel, I am of the view that the Magistrate has not fallen into error. I am also of the view that the sentence imposed was not, in all of the circumstances, manifestly excessive.
For those reasons I consider that the appeal should be dismissed.
Order:
1. Appeal dismissed.
2.The appellant pay the respondent’s costs in the amount of $150 within 21 days.