BESANKO J: This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991. The defendant was sentenced to four terms of imprisonment which are to be served concurrently. The offences and the sentence imposed with respect to each offence are as follows:
1.being on premises, namely, the Victor Harbor Police Station, for an unlawful purpose contrary to s 17(1) of the Summary Offences Act 1953 (“SOA”).
Sentence: imprisonment for a period of four months.
2.assaulting Mark Scott Williams thereby occasioning him actual bodily harm contrary to s 40 of the Criminal Law Consolidation Act 1935 (“CLCA”).
Sentence: imprisonment for a period of eight months.
3.assaulting David Conway, a member of the police force, in the execution of his duty contrary to s 6(1) of the SOA.
Sentence: imprisonment for a period of five months.
4.assaulting Eric Dade Schwenke, a member of the police force, in the execution of his duty contrary to s 6(1) of the SOA.
Sentence: imprisonment for a period of five months.
In effect, the total head sentence is a period of eight months. The Magistrate declined to suspend the sentences.
The defendant appeals against the sentences imposed by the Magistrate and the Magistrate’s refusal to suspend them. I will continue to refer to him in these reasons as the defendant.
The Facts
There was no challenge on appeal to the facts found by the Magistrate. By way of elaboration of what is set out in the Magistrate’s reasons, I received an affidavit from the prosecutor who appeared before the Magistrate, and an affidavit from the defendant’s counsel. The affidavits summarise the submissions which were made to the Magistrate.
At about 10.00pm on 8th August 2003 the defendant was in the car park of the Victor Harbor police station. He was heavily intoxicated. He was letting air out of the tyres of various police vehicles in the car park. Mr Mark Williams is a police officer and he was walking across the car park. He noticed the defendant crouched down near a police vehicle letting down one of its tyres. Mr Williams asked the defendant what he was doing and the defendant said, “I hate fucking coppers”. Mr Williams asked the defendant for his name, and the defendant said “Are you a fucking copper?”. Mr Williams took hold of the defendant and made an emergency call for assistance on his police radio. The Magistrate found that by this point the defendant must have known that Mr Williams was a police officer. The defendant struggled with Mr Williams, and in the course of that struggle he bit Mr Williams on the right upper arm. The bite broke the skin thus, as the Magistrate said, “condemning Mr Williams and members of his family to a distressing wait for the results of blood tests”. Police officers Conway and Schwenke responded to Mr Williams’ urgent call for assistance and in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Wessling v Police [2004] SASC 51
Case
[2004] SASC 51
Decision Date
CaseChat Overview and Summary
The defendant in Wessling v Police appeals against the sentences imposed by the Magistrate and the Magistrate's decision not to suspend them. The defendant was found guilty of offences including interference with motor vehicles, assault, and resisting arrest while heavily intoxicated. The defendant was observed by a police officer letting air out of police vehicles' tyres in the car park of the Victor Harbor police station. When confronted, the defendant resisted and bit a police officer, causing injury. The Magistrate imposed a sentence of imprisonment and refused to suspend it.
The legal issues in this case involve the Magistrate's application of the suspension of sentences under section 38 of the Criminal Law (Sentencing) Act. The defendant argues that the Magistrate erred in not considering the defendant's steps towards rehabilitation and other mitigating factors as sufficient "good reason" to suspend the sentence. The defendant contends that the Magistrate did not properly exercise the discretion required by the statute.
The Court examines the Magistrate's decision and the principles governing the suspension of imprisonment sentences. The Court notes that the Magistrate considered several mitigating factors, including the defendant's early guilty plea, employment status, and parental support. However, the seriousness of the offences, the need for deterrence, and the defendant's criminal history weighed heavily against suspension. The Court found that the Magistrate's decision not to suspend the sentence was a balanced consideration of all relevant factors and did not represent an error warranting appellate intervention.
The Court affirms the Magistrate's decision, holding that the sentences of imprisonment were appropriate given the circumstances and the need for deterrence. The appeal against the sentence and the refusal to suspend it is dismissed.
Orders
Orders of the court
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Background
Background to the litigation
The defendant appeals against the sentences imposed by the Magistrate and the Magistrate’s refusal to suspend them. I will continue to refer to him in these reasons as the defendant.The Facts There was no challenge on appeal to the facts found by the Magistrate. By way of elaboration of what is set out in the Magistrate’s reasons, I received an affidavit from the prosecutor who appeared before the Magistrate, and an affidavit from the defendant’s counsel. The affidavits summarise the submissions which were made to the Magistrate. At about 10.00pm on 8th August 2003 the defendant was in the car park of the Victor Harbor police station. He was heavily intoxicated. He was letting air out of the tyres of various police vehicles in the car park. Mr Mark Williams is a police officer and he was walking across the car park. He noticed the defendant crouched down near a police vehicle letting down one of its tyres. Mr Williams asked the defendant what he was doing and the defendant said, “I hate fucking coppers”. Mr Williams asked the defendant for his name, and the defendant said “Are you a fucking copper?”. Mr Williams took hold of the defendant and made an emergency call for assistance on his police radio. The Magistrate found that by this point the defendant must have known that Mr Williams was a police officer. The defendant struggled with Mr Williams, and in the course of that struggle he bit Mr Williams on the right upper arm. The bite broke the skin thus, as the Magistrate said, “condemning Mr Williams and members of his family to a distressing wait for the results of blood tests”. Police officers Conway and Schwenke responded to Mr Williams’ urgent call for assistance and in the course of assisting Mr Williams in bringing the defendant under control, Mr Conway was elbowed in the stomach and Mr Schwenke was himself bitten. The unlawful purpose for the purposes of the first offence was the interference with motor vehicles in the police compound. That unlawful purpose was admitted by the defendant.The Magistrate’s Reasons The defendant is a twenty‑nine year old man. He pleaded guilty to the charges at an early stage, and the Magistrate said that he was to be given demonstrable credit for that. The Magistrate did not say what credit he gave the defendant for his pleas of guilty. The Magistrate outlined the facts in similar terms to what I have set out above. The Magistrate said that the defendant had minor convictions in the past, including convictions for being on premises for an unlawful purpose and for resisting police. The Magistrate said that these matters appeared not to have been particularly serious, and that the defendant was not to be punished for them again. The Magistrate referred to a pre‑sentence report prepared by a Community Corrections Officer, Mr Michael Bade. The report is dated 24th November 2003. Mr Bade said that the major issue underpinning the defendant’s offending behaviour was his ongoing use of alcohol and drugs. I assume he means by this that the major cause of the defendant’s criminal activity was the fact that he took drugs and consumed alcohol to excess. The Magistrate was told by the defendant’s counsel that apart from one lapse in February 2003, the defendant ceased taking drugs in December 2002, and that he ceased taking alcohol after the offences in August 2003.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Magistrate did take into account the defendant’s steps towards, and prospects of, rehabilitation. In my opinion, the Magistrate was entitled to reach the conclusion that despite that consideration the offences warranted sentences of imprisonment having regard to their seriousness and the circumstances surrounding the commission of the offences.The Decision Not to Suspend The decision whether to suspend the time of imprisonment is governed by s 38 of the CLSA. That section relevantly provides:“38. (1) Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond -(a) to be of good behaviour; and(b) to comply with the other conditions (if any) of the bond.(2) A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.(2a) However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order -(a) direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and(b) suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.(2b) The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.” As I understood the submission, the defendant argued that there are two steps involved in the application of s 38. The first step involved asking whether good reason to suspend the sentence existed. The defendant submitted that steps towards rehabilitation constituted good reason. The second step, assuming good reason did exist, involved the Court deciding whether, in the exercise of its discretion, and having regard to all relevant sentencing considerations, the sentence should be suspended. The defendant submitted that the Magistrate failed to exercise his discretion, and that on appeal I should exercise the discretion to suspend the sentence. I do not accept the defendant’s submission that there is a two stage process under s 38(1) of the CLSA. I think there is but one question, and that is whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences. I do not think that the Magistrate erred in declining to suspend the whole of the sentence of imprisonment which he imposed. The fact that the defendant has taken steps towards rehabilitation was an important consideration. The fact that the defendant had a relatively insignificant criminal history was also an important consideration. The fact that the defendant was employed and had the support of his parents were also important considerations. However, as I have said, the offences were serious offences, and the need for deterrence was an important consideration to be placed in the scales. The decision of the Court of Criminal Appeal in R v Kane [2003] SASC 237 illustrates how a decision whether or not to suspend a sentence of imprisonment can be finely balanced. After considering all the matters put to me, I am not satisfied that in declining to suspend the whole of the sentence of imprisonment the Magistrate made the type of error which would justify the intervention of this Court.