Wessling v Police

WESSLING v POLICE
[2004] SASC 51
Magistrates Appeal: Criminal

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 8^th 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 24^th 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.
The defendant was charged with other offences before the offences he committed in August 2003. In April 2003 he was released on bail in relation to those earlier offences, and he was required to appear in court on 13^th October 2003 for sentencing in relation to those earlier offences. While on bail the defendant attended counselling sessions with a drug counsellor from the Southern Fleurieu Health Service at Victor Harbor. The counsellor is Ms Margaret Blacker, and a letter from her was put before the Magistrate. In that letter she states:
“Benjamin Wessling has indicated that he would like to continue counselling with this service on a voluntary basis to assist him maintain abstinence from alcohol & other drugs in the future.
It is my opinion that Ben Wessling has insight into the problems associated with his A&OD use in the past and with ongoing commitment from himself and with support from his family he will be able to achieve his goals to maintain abstinence and reduce the risk of re-offending in the future.”
Mr Bade notes that on 13^th October 2003 the defendant was sentenced to imprisonment for a period of three months suspended on the defendant entering into a two year good behaviour bond. A condition of the bond was that the defendant be under the supervision of a community corrections officer for two years. Mr Bade states that he is presently preparing a case management plan with the defendant’s assistance and that that plan will emphasis drug and alcohol counselling and the implementation of prevention strategies.
Mr Bade concludes his report with the following observations:
“Mr Wessling has been supervised on a Good Behaviour Bond for the past month and there has been progress made in regard to assessing and resolving issues around his use of alcohol and other drugs. He has formulated other goals that he would like to achieve in regard to ongoing employment and possible future studies. The offender has acted responsibly and it is the writer’s belief that a further period of supervision on a Good Behaviour Bond is warranted to bring the outcomes highlighted in the current Good Behaviour Bond, to fruition.
If the Court were to agree that ongoing alcohol and other drug counselling were warranted in this instance, then consideration could be given to releasing Mr Wessling on a Good Behaviour Bond. The offences may warrant a sentence of imprisonment, but in this case that sentence could be suspended, giving Mr Wessling the opportunity of addressing this issue and others that have been identified, in the community.”
The Magistrate was told that the defendant had employment, and that he had the support of his parents.
The Magistrate said that on the face of it the defendant was responding appropriately to the assistance and encouragement that he now had to reform and rehabilitate his lifestyle, and that he had the advantage of parental support. The Magistrate said that it was possibly too cynical to suggest that the defendant’s commitment to his rehabilitation coincided with him being caught committing offences. The Magistrate then discussed the issue of rehabilitation and outlined the matters in favour of not sending the defendant to gaol, but rather allowing him to continue along the path of rehabilitation. As against those considerations, the Magistrate noted the following:
1.Parliament has recognised that special protection is required for police officers discharging their duty on behalf of the community and has enacted penalties accordingly.
2.It has been recognised of late that suspended sentences and good behaviour bonds have little effect in terms of general deterrence.
The Magistrate said that he had regard to the considerations in sections 10 and 11 of the Criminal Law (Sentencing) Act 1988 (“CLSA”), and he had concluded that each offence warranted a term of imprisonment. He said that any other penalty or order would not be a sufficient or adequate punishment for those offences. The Magistrate said that he did not think that there was good reason to suspend the sentences of imprisonment.
Issues on Appeal
The defendant made three submissions on the appeal. First, he submitted that the Magistrate erred in failing to give the defendant credit for his pleas of guilty at an early stage, or in failing to identify the credit he gave the defendant for those pleas. Secondly, the defendant submitted that in imposing sentences of imprisonment, the Magistrate overlooked the provisions of s 11 of the CLSA and the fact that the defendant had taken steps towards his rehabilitation. Thirdly, and I think this is the defendant’s primary submission, the defendant submitted that the Magistrate erred in his consideration of whether the sentences of imprisonment should be suspended. The defendant submitted that there was good reason to suspend the sentences.
An appellate court will only interfere if it is satisfied that the sentencing authority has acted upon a wrong principle or if it allowed extraneous or irrelevant words to guide or affect it or if it did not take into account some material consideration. An appellate court may also interfere if, although it is not clear how the sentencing authority reached the result embodied in the order, the order is upon the facts unreasonable or plainly unjust. In that case the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the sentencing authority (House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 per Gleeson CJ and Hayne J at [3]-[4]).
Credit For Guilty Pleas
It is not clear to me whether the substance of the defendant’s complaint is that the Magistrate did not give credit for the pleas of guilty at an early stage, or that although he must be taken to have given some credit, he erred in failing to identify the extent of the credit which he gave. The Magistrate said that the defendant was to be given demonstrable credit for his pleas of guilty, although he did not identify the extent of the credit which he gave. I think it is clear that the Magistrate did give credit for the pleas of guilty at an early stage, and if he adopted a starting point of around ten or eleven months that would not have been an inappropriate starting point having regard to the circumstances of the case, and if he then reduced that starting point to eight months that would not have been an inappropriate reduction. As to the complaint that he did not identify the extent of the credit which he gave, it would have been preferable had he done so. However, the failure to do so is not an error of principle nor, in itself, is it a ground for interference with a sentence (R v Place (2002) 81 SASR 395 at [80]‑[83]). I reject this challenge to the Magistrate’s reasons.
Section 11 of the CLSA and Rehabilitation
Section 11 of the CLSA provides as follows:
“(1)A sentence of imprisonment may only be imposed -
(a)if, in the opinion of the court -
(i)     the defendant has shown a tendency to violence towards other persons; or
(ii)    the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)   the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)   any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in s 10(2).
(2)This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.”
The defendant submitted that if the Magistrate had had proper regard to this section and the steps the defendant had taken towards rehabilitation he would not have imposed sentences of imprisonment. The defendant also submitted that the facts of the case did not fall within any of the criteria in s 11(1), and in particular, it was not established that the defendant had shown a tendency to violence towards other persons.
I reject the defendant’s submission. The Magistrate took the view that the case fell within s 11(1)(a)(iv) of the CLSA. Although he used the words “sufficient or adequate” punishment rather than the word, “appropriate”, I think it is clear that he took the view that the gravity and circumstances of the offences were such that any sentence other than imprisonment would be inappropriate. In my opinion, even taking into account the defendant’s steps towards rehabilitation, that was a view which was open to the Magistrate on the facts. The offences, particularly the offence of assault occasioning actual bodily harm, are serious offences. The act of biting Mr Williams had worrying consequences for Mr Williams and his family. The fact that the offences were committed while the defendant was heavily intoxicated is not a mitigating circumstance. The fact that they were committed while he was on bail is an aggravating circumstance. I recognise that it appears that the defendant has taken some steps towards rehabilitation. It appears that he has some insight into his drug and alcohol problems, and he attended counselling for these problems during 2003. According to the defendant, he ceased taking drugs in December 2002, and has been drug free except for one lapse in February 2003. According to the defendant, he gave up alcohol after the offences in August 2003. As against these particular matters which suggest that the defendant has taken steps towards rehabilitation, I note that the defendant committed the offences while on bail and while heavily intoxicated. No doubt the defendant should be encouraged to continue his efforts towards rehabilitation, but at the same time the offences are serious offences which carry significant penalties. Assault occasioning actual bodily harm carries a maximum penalty of five years imprisonment, although the maximum that could be imposed by the Magistrate was two years (s 19(3)(a) of the CLSA). Assaulting a member of the police force in the due execution of his duty carries a maximum penalty of $10,000 or two years imprisonment as does (in the circumstances of this case) being on premises for an unlawful purpose.
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.
However, I think the position is different when consideration is given to whether or not the power in s 38(2a) of the CLSA to suspend part of the sentence should be exercised. It seems that counsel did not refer the Magistrate to s 38(2a) and the subsection is not referred to in the Magistrate’s reasons. Even though counsel did not refer to s 38(2a), this was a case which clearly called for a consideration of whether the power in that subsection should be exercised. The difficulties of striking an appropriate balance in this case between the considerations of deterrence on the one hand, and rehabilitation on the other, were readily apparent. In my opinion, the failure to consider the exercise of the power in s 38(2a) of the CLSA was an error which justifies the intervention of this Court.
In my opinion, this was an appropriate case for the exercise of the power in s 38(2a). The seriousness of the offences and the need for deterrence justified a decision that the defendant should serve a period of the term of imprisonment in prison. On the other hand, the steps the defendant has taken towards rehabilitation and the other matters to which I have referred warranted a suspension of part of the term of imprisonment. In my opinion, the appropriate order is that the defendant serve four months of the term of imprisonment in prison, and that the remainder be suspended on condition that he enter into a bond to be of good behaviour that will have effect on his release from prison.
Conclusions

For these reasons, I would not interfere with the terms of imprisonment imposed by the Magistrate. I would exercise the power in s 38(2a) of the CLSA to direct that the defendant serve four months of the imprisonment in prison and that the remainder be suspended on condition that the defendant enter into a bond to be of good behaviour subject to appropriate conditions. I will hear the parties as to the orders which should now be made, and the appropriate conditions of the bond.

[2004] SASC 51

22 March 2004