Weetra v Police No. Scgrg-98-870 Judgment No. S6823

[1998] SASC 6823

WEETRA  v  POLICE
[1998] SASC 6823

Magistrates’ Appeal (Ex tempore)
Bleby J

1. This is an appeal against sentence.  On 9 June 1998, the appellant pleaded guilty and was sentenced in the Magistrates Court sitting at Elizabeth in respect to a number of offences occurring between 26 January 1995 and 14 February 1998. I will deal with each of them in chronological order.

2. The first offence was the offence of hindering police.  That occurred on 26 January 1995 when police who were on uniform mobile patrol in the Brahma Lodge area had cause to stop and speak to the driver of a green Ford sedan in  relation to a traffic matter.  Whilst speaking to him they noticed that his breath smelt strongly of liquor.  They told him that they wished to conduct a breath analysis and requested that he not place anything in or ingest anything through his mouth.  The driver became angry and emotional about this direction and began to abuse police.  At that time the appellant, who is apparently related to the driver, approached the driver with a cigarette and said “Here uncle, you have what you want.  You’ve got rights.”.  Police told the appellant that the driver of the vehicle could not have a cigarette until a sample of his breath had been taken for analysis and, if he gave the cigarette to him, he could be arrested.  The appellant then told the police that they could not stop the driver from “having a smoke” and proceeded to place the cigarette in the driver’s mouth which he lit for him.  The police removed the cigarette from the driver’s mouth and repeated the direction that they had previously given that the driver was not to have a cigarette until after a sample of breath had been taken.  Three women then intervened and abused the police and while they did so the appellant picked up the same cigarette, again placing it in the mouth of the driver and lighting it for him.  The actions of the appellant made it very difficult for police to execute their lawful duty and he was subsequently arrested and charged with the offence of hindering police.  He was co-operative with police after his arrest and in the opinion of the police was moderately affected by alcohol.  For that offence, the magistrate imposed a penalty of 14 days imprisonment to commence from 16 April 1998, being the day on which the appellant was first taken into custody.  The maximum penalty for such an offence is 6 months imprisonment or a $2,000 fine.

3. The next group of offences comprised one offence of common assault on a person other than a family member and one of refusal to give a name and address.  These occurred on 12 April 1997.  The victim of the assault was a woman, a Ms Fellenberg.  At about 12.30am  on Saturday 12 April 1997, she was lying on the ground at the front of a friend’s unit at Seaton.  She was approached by the appellant who asked her for a cigarette.  The victim refused telling the appellant that she could not afford to give him one.  The appellant then said “Don’t say sorry or nothing.  I’ll kick your head in”.  He then stepped closer to the victim and attempted to punch her face, but she avoided the attack by rolling away.  When police attended a short time later they saw that the victim was visibly upset and was crying.  The victim identified the appellant to the police.  He was standing in the doorway of a nearby unit.  Police approached him and asked him on three separate occasions to state his full name and address, which he refused to do.  The police then arrested the appellant for common assault and for failing to state his name and address.  The appellant initially denied assaulting the victim and stated that he believed it was his prerogative not to tell police his name and address.  For those two offences, the magistrate imposed a period of imprisonment of six weeks cumulative upon the previous sentence of 14 days.  The maximum penalty for the assault was two years and for refusing name and address, three months imprisonment or $1,000 fine. 

4. On 25 October 1997 the appellant assaulted his mother, Verna Maria Weetra.  That happened at about 2.00pm on that day at her home address.  The appellant was in an aggressive mood and began verbally abusing the victim and other persons in the house.  He then walked up to the victim and shouted obscenities at her before grabbing her by the hair and dragging her to the ground from a wheelchair.  She landed on her left side.   The victim did not require medical attention, but her head and face were sore as a result of the appellant’s actions.   The victim was very vulnerable to attack, having lost the use of most of the left side of her body as a result of a car accident in 1973, and she was confined to a wheelchair.  For that offence, the magistrate imposed a penalty of six weeks imprisonment cumulative upon the previous sentences.  The maximum penalty for that type of offence is imprisonment for three years. 

5. The last offence was another common assault on a family member which occurred on 14 February 1998, the victim then being the appellant’s sister.  During the afternoon that day, the police attended at her address in relation to a disturbance which had occurred.  When they arrived, they saw the appellant sitting on the front doorstep.  Police then spoke to the appellant’s sister, who told them that she wished to have the appellant removed because he was causing too much trouble.  At that time, the appellant walked into the lounge room, approached his sister and threw a closed fist punch towards her head but missed.   The victim tried to escape from behind a chair and the appellant then tried to get his sister again, but was, himself, restrained by police.  He stated to the police that he intended to punch and harm his sister, because she made him sick and he did not like her.  He threatened to come back and do it again.  For that offence, the magistrate imposed a penalty of eight weeks imprisonment cumulative upon the previous sentences. 

6. The total period was, therefore, 22 weeks imprisonment.   The sentences were not suspended.  The appellant has, therefore, been in custody for these offences since 16 April 1998 and, on my calculations, as at today has served a period of 17 weeks and four days imprisonment in respect of those offences.

7. The appellant is a 25 year old semi-urbanised Aboriginal man.  He is unemployed.  He is an alcoholic and suffers from epilepsy.  In a report which he prepared for the purpose of the sentencing magistrate, Mr Fugler, a psychologist, expressed the opinion that the appellant is a person of relatively low intellect, who is prone to experiencing bouts of depression.  According to Mr Fugler, the appellant’s depression causes him to drink even more heavily than usual which, in turn, predisposes him to aggressive and impulsive outbursts.  These are exacerbated by his not taking anti-epileptic medication during his drinking bouts.  This is a well-known feature of withdrawal from the drug in question. 

8. Most of the appellant’s offending occurs when he is intoxicated.  When he was very young, the appellant was placed into the care of another woman by his mother.  Since then, he has sought to establish a positive relationship with his mother.  However, this has proved to be very difficult.  He has difficulty in being accepted by others in the Point Pearce community, although the psychologist had difficulty in ascertaining the real reason for this.   The psychologist in his report to the appellant’s solicitor concluded by saying:

   “He is in need of professional assistance with respect to his alcoholism and requires some support from counsellors established within the Aboriginal community.  The latter should help him to stabilise accommodation, ensure he receives appropriate neurological reviews, and continues to ingest his anti-epileptic medication.  Hopefully, the above combination will reduce the possibilities of further offending.”

9. The appellant has convictions in the former Children’s Court for resisting police, common assault, disorderly behaviour, damaging property, larceny and receiving, and he has other recorded offences of a similar nature.  In each case, they  have involved either conviction without penalty or the placing of the appellant on a bond without conviction or a fine.  As an adult, he has been convicted of damaging property, for which, on one occasion, he was fined and the other occasion he was placed on a bond.  He has failed to answer bail on a number of occasions. 

10. The grounds of appeal are that the sentence was manifestly excessive, that the learned magistrate erred in imposing a further period of imprisonment and erred in not suspending that term.  The magistrate took into account the appellant’s pleas of guilty, but the effect of those he considered was offset, to some extent, by the appellant’s failure to answer bail and being on bail when committing the later offences.  He did not regard the period that the appellant had then spent in custody, which was then a period of seven weeks and five days, as being adequate punishment, and did not regard a suspended sentence as appropriate. 

11. The magistrate did not refer specifically to the psychologist’s report to which I have referred, nor did he seem to give any recognition to the aggravation of the behavioural problems of the appellant brought about by the consumption of alcohol and the withdrawal from his epilepsy medication.  He seems not to have taken any heed of the final recommendation of the psychologist to which I have referred. 

12. Although the appellant has a past record as a juvenile of minor behavioural and property offences, since being an adult, there have been two instances only of damaging property, one of which was without conviction and the imposition of a bond for six months, and one of which attracted a conviction and fine.  The appellant throughout has never had a custodial sentence. 

13. In my opinion, the magistrate concentrated almost exclusively on questions of deterrence, but it was clear that the appellant needed some help which might assist him in minimizing his anti-social behaviour.  That was not going to be achieved by an immediate custodial sentence.  Nor was it appropriate, in my opinion, with his record and medical problem, to impose his first custodial sentence for any of these offences without suspending it. 

14. I consider that some of the sentences imposed were too great in themselves and that they should have been suspended, with appropriate conditions imposed, and so I reach the conclusion that in all the circumstances the penalty was manifestly excessive. 

15. The appellant has already served 17 weeks and 4 days of the 22 week custodial sentence ordered.  In sentencing him afresh I must take that into account. 

16. What he now needs is a period of some supervision, an opportunity for the treatment suggested by Mr Fugler to be given a chance to work.  On the other hand, he also needs something more than a bond alone if there is to be the appropriate element of deterrence, of which, in my opinion, there is also some need.

17. I make it clear that the sentences I am about to impose are not necessarily the sentences I might have imposed if I was doing so at the time when the magistrate determined the sentences, and that the concurrence of the sentences that I will order is only because of the unique situation which has occurred, namely that the bulk of the sentences imposed by the magistrate have already been served. 

18. The convictions on each of the offences will stand.  For the offence of hindering police on 26 January 1995, I would sentence the appellant to 7 days imprisonment.   For the common assault and refusing name and address on 12 April 1997, I would impose a penalty of 4 weeks imprisonment.  I would impose the same penalty for the common assault on a family member on 25 October 1997 and the same penalty on the same offence which occurred on 14 February 1998.  I will direct that all sentences be served concurrently and that all the sentences be suspended upon the appellant entering into a bond to be of good behaviour, on his own recognizance, in the sum of $500, for a period of 12 months.  The conditions of the bond will be:

1...... That the appellant be of good behaviour and comply with the conditions of the bond.  

1. That he be under the supervision of a probation officer for a period of 12 months and obey the lawful directions given to him by a probation officer.  

1. That he report to the officer of the Department of Correctional Services at the Adelaide Magistrates Court in Adelaide immediately upon his release.  

1. That he undertake such programs in relation to training for employment, treatment for alcoholism and other medical treatment as may be directed by his probation officer. 

1. That he reside at the Point Pearce community or such other location as may be approved by his probation officer. 

1. There will be an order that the appellant have his costs of the appeal fixed in the sum of $150.