Wilkey v Police - [2013] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILKEY v POLICE
[2013] SASC 55
Judgment of The Honourable Justice Kelly
18 April 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty in the Magistrates Court to one count of non-aggravated serious criminal trespass in a place of residence, one count of theft and one count of aggravated assault - Magistrate imposed one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), of 26 months imprisonment - appellant argued on appeal that the Magistrate erred in his approach to the appellant's antecedents, that the sentencing discretion miscarried because the appellant was sentenced on an information which was bad for duplicity, and that the sentence of 10 months imprisonment for the aggravated assault was manifestly excessive in all the circumstances - whether sentencing process miscarried.
Held: Aside from correcting a technical error in relation to the balance of the appellant's unexpired parole, there are no grounds to interfere with the sentence imposed at first instance - no error in the Magistrate's approach to the prior offending has been demonstrated - there is no duplicity, either patent or latent, in the charge of aggravated assault for which the appellant was sentenced - a starting point of 10 months for the aggravated assault was within the range available to the Magistrate.
Appeal allowed for limited purpose of correcting error in calculation of unexpired parole as at date of offence.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 31(2); Summary Offences Act 1953 (SA) s 6(2); Criminal Law Consolidation Act 1935 (SA) s 20(1)(c)(ii), referred to.
Haskett v Police [2005] SASC 174; Walsh v Tattersall (1996) 188 CLR 77, applied.
Wellington v Police (2009) 105 SASR 215, distinguished.
Lepadatu v Police [1999] SASC 400; Hull v Nuske (1974) 8 SASR 587, discussed.

WILKEY v POLICE
[2013] SASC 55
Magistrates Appeal: Criminal
KELLY J.
Introduction

The appellant, Robert James Wilkey, pleaded guilty in the Magistrates Court to one count of non-aggravated serious criminal trespass in a place of residence and one count of theft, both committed on 10 February 2011. He also pleaded guilty to one count of aggravated assault committed on 29 June 2012.
The appellant was convicted on each count and the sentencing Magistrate, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), imposed one sentence of 26 months imprisonment.
Pursuant to s 31(2) of the Act, the Magistrate ordered that the sentence of 26 months imprisonment be served cumulatively upon the balance of the appellant’s unexpired parole of four months and five days, making a total head sentence of 30 months and five days. The Magistrate set a non-parole period of 20 months to commence from the date the appellant was taken into custody, being 29 June 2012, following his arrest for the offence which occurred on that date. The Magistrate declined to suspend the sentence.
The appellant now appeals on the basis that the Magistrate erred in three respects. The first error was said to be the Magistrate’s determination that in light of an earlier sentence of imprisonment imposed on the appellant for similar offending he had to impose a longer sentence for the current offending.
The second alleged error was said to be the fact that the Magistrate sentenced the appellant on one count of aggravated assault which was bad for duplicity. It was also alleged that, given the Magistrate sentenced on the basis of statements allegedly made by three named victims of the aggravated assault, the sentence was bad for uncertainty.
Finally, it was submitted that the sentence of 10 months for the aggravated assault was in any event manifestly excessive.
Background
The facts giving rise to the charges of non-aggravated serious criminal trespass and theft on 10 February 2011 relate to a break in at the home of an 86 year old woman who resided in Elizabeth East. When she arrived home in the afternoon of 10 February 2011, she found that someone had broken into her home via the rear laundry window and stolen a number of items valued at approximately $1,049.00. A victim impact statement presented to the court revealed that this elderly lady was traumatised by the break in even though she was not actually at home when the break in occurred.
The facts giving rise to the charge of aggravated assault relate to the events which occurred in the evening of 29 June 2012 when police went to a dwelling at Naracoorte and arrested the appellant in respect of an unrelated matter. After he had been arrested and restrained with handcuffs, he complained of not being able to breathe and was removed from the police vehicle and laid on the driveway of the home until ambulance officers could attend. Shortly after 8.00pm that night, following the attendance of ambulance officers, the appellant and the police were engaged in a violent struggle while the police endeavoured to return the appellant to the rear of the police van before transporting him to Mount Gambier. During the course of that struggle, the appellant made several threats to the police officers and kicked one of the police officers in the leg.
The appellant is now 24 years old. He has a poor record of offending while he was still a juvenile and his record as an adult reveals that he has continued to offend with reasonable regularity.
He has been imprisoned on three occasions prior to being dealt with by the Magistrate for the current offending. One of the previous sentences relevant to the current offending was a sentence of 14 months imprisonment imposed on the appellant for an offence of non-aggravated serious criminal trespass and theft committed on 17 February 2010 for which he was arrested on 22 June 2010. He was convicted of those and other offences in the Elizabeth Magistrates Court on 14 October 2010 and sentenced to a total period of imprisonment for 15 months and two weeks with a non-parole period of six months. As the police apprehension report in respect of that offending shows, the circumstances surrounding the offence of non-aggravated serious criminal trespass on 17 February 2010 are not dissimilar to the current offending. At the time the appellant was on home detention bail. When the offence of non-aggravated serious criminal trespass was committed on 10 February 2011, the appellant was on parole for the earlier offending.
The grounds of appeal
I turn now to deal with the first complaint that the Magistrate erred in his approach to the appellant’s previous offending.
The complaint arose out of remarks made by the Magistrate as follows:
[3]In relation to the serious criminal trespass, I make the observation firstly Mr Wilkey has been charged and sentenced on similar offending in the past. This is not his first time before the court on a charge of serious criminal trespass. The last occasion he was before the court for such a charge was on 14 October 2010. He received a term of imprisonment on that charge of 14 months as a head sentence with a non parole period of six months.
...
[5]Although it may have been just another house you broke into Mr Wilkey for that person it is her only home and the effects of what you did to her will be ongoing probably for the rest of her life. Because this is not your only offence of this nature, the sentence to be imposed in my opinion needs to be more than what you previously received for similar offending. For this charge I think a term of imprisonment of 24 months would be appropriate reduced by 25% for the guilty plea.
It was said that, in making those remarks, the Magistrate incorrectly determined that he had no alternative but to impose a heavier sentence for the current offending in light of the earlier sentence of imprisonment imposed for the identical offence on 14 October 2010. The appellant submitted that the error was compounded by the fact that the Magistrate had no information before him about the circumstances of the previous offending on which he could have properly assessed the objective gravity of the earlier offending. It was therefore an error to proceed on the basis that he automatically needed to impose a longer sentence for this offending.
The Magistrate’s remarks at [3] and [5] are to be read in the context of the whole of his sentencing remarks. It can be seen that his Honour was actually saying that, in all of the circumstances, he would need to impose a more severe sentence for the current offending than had been imposed in the past. Those circumstances included the fact that the appellant had been sentenced as recently as 14 October 2010 in respect of another charge of serious criminal trespass, that the victim of the current offending was an elderly woman who had been traumatised by the offending, and that the previous sentence did not seem to have deterred the appellant.
Although his Honour did not explicitly say so, it is clear enough from the whole of his remarks that his Honour considered that the history of the appellant called for a sentence which would act as an effective personal deterrent and that he was not therefore entitled to any leniency which might be afforded to a first offender. It is obvious that the Magistrate concluded that the sentence of 14 months imposed in October 2010 in respect of the earlier offence of serious criminal trespass had not operated as an effective deterrent. That conclusion was plainly open to the Magistrate given that at the date of the current offence on 10 February 2011 the appellant was still on parole for that earlier offence.
I do not agree that the Magistrate’s remarks convey the suggestion that the Magistrate thought he had no option but to impose a heavier sentence. It is obvious from his remarks as a whole that the Magistrate reached that conclusion after considering all of the relevant circumstances. No error in the Magistrate’s approach to the prior offending has been demonstrated. This ground of appeal must be dismissed.
I turn now to consider the complaint that the appellant was sentenced on an offence which was bad for duplicity. The particulars of the charge of aggravated assault to which the appellant pleaded guilty were:
On the 29^th day of June 2012 at NARACOORTE in the said State, [the appellant] Assaulted Constable Adam KUCHEL, Senior Constable Christopher MAILLEY and Senior Constable BAKER.
Section 20(3) of the Criminal Law Consolidation Act, 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender committed the offence against Police Officers, knowing the victims to be acting in the course of their official duty.
The Magistrate’s remarks in relation to this offence were at [6] and [7], which read as follows:
[6]In relation to the charge of assault police, I know the assault was more verbal than physical but you were kicking out at police officers. In particular you said to one police officer “you’re fucked, I’ll kill you” and to another officer you said “I hope you’ve got children because I’ll fucking kill you”. I am told the police officers took those words seriously. It is very easy to say after the event I made those threats under the influence of some substance and I did not really mean them and I was angry at the time. The fact is you made the threats and the police took them seriously. They live in a small town where I expect the residences of the police and their families are known to the community. Police in those towns are visible and vulnerable and they did have serious concerns about their own welfare and that of their family.
[7]Police deserve the protection of the law, they have a difficult job to do. That job involves arresting people who may be affected by substances who then make serious and violent threats against them. They deserve protection and they do not deserve to be abused and assaulted as you did. Notionally I think an appropriate sentence of 10 months would be appropriate reduced because of the plea.
At the hearing of this appeal I received an affidavit from counsel for the respondent regarding the submissions made by the prosecution in relation to sentence. This affidavit was particularly helpful in light of the fact that, apart from the sentencing remarks, the whole of the file relating to this charge appears to have gone missing somewhere between the Elizabeth and Mount Gambier Magistrates Courts. The affidavit of Ms Stokes filled in the necessary gaps with respect to the submissions made by the prosecution before the Magistrate.
I was informed by Mr Graham, who appeared for the appellant, that counsel who appeared before the Magistrate at sentencing submissions, Mr Vadasz, had a very poor recollection of what submissions he had made. Nevertheless, it was not in dispute that the appellant made no complaint before the Magistrate about alleged duplicity in respect of the charge of aggravated assault.
Although it is not entirely clear where the Magistrate obtained the facts referred to by him in [6] and [7] of his sentencing remarks, it is plain from statements of officers Kuchel, Mailley and Baker, which were tendered on the appeal, that the facts recorded by the Magistrate accurately reflect the contents of those statements.
The facts giving rise to the charge of aggravated assault are important. On 29 June 2012, the police went to a private residence in Naracoorte and arrested the appellant for an unrelated matter. He was handcuffed and placed in a police vehicle. Once inside the vehicle the appellant became abusive and kicked the door of the vehicle. He then became hysterical, complaining of breathing problems, as a result of which he was removed from the vehicle and placed on the ground and an ambulance was called. He continued to be aggressive, violent and abusive even after the ambulance officers arrived. A further struggle then ensued when three police officers, namely Baker, Kuchel and Mailley, endeavoured to place him back in the police vehicle in order to transport him to Mount Gambier. It was during the course of the struggle to get the appellant back into the vehicle that he uttered a number of threats including one to Baker, “when I get back cunt, your [sic] fucked. I’ll kill you”, one to Kuchel, “I hope you’ve got kids, cos I’m gonna fucking kill you”. Constable Mailley was kicked in the leg during the struggle to get him back into the police vehicle.
It was because the appellant was in such an unpredictable and volatile state that it was decided to transfer him to Mount Gambier, where the lock up facilities were more appropriate. Constable Baker said that the fact that the appellant put up such a violent struggle against three police officers at one time while handcuffed did concern him. He was concerned that the appellant may follow through on his threats.
It can be seen that this offence occurred in the space of a relatively short period of time while the three officers were struggling to control a volatile and unpredictable man and put him in the police vehicle. Viewed in this way, the threats to the officers and the kick to Constable Mailley were part of the one course of conduct and constituted what any reasonable person would regard as a single incident, albeit during the course of a protracted struggle.
I was referred to a number of cases in which the issue of duplicity has been discussed. In Haskett v Police,[1] Doyle CJ characterised an incident involving an assault on a man by a blow with a rock to his head and further blows and kicking as he lay on the ground as one course of conduct. In that case it had been argued that the blow to the head constituted one offence and the kicks another.
[1] [2005] SASC 174.
In Wellington v Police,[2] the appellant was convicted on one count of aggravated assault of her five year old son. The facts were that after the appellant punched the boy in the school yard, she desisted, then paced up and down between the car and the victim in apparent despair and indecision about what to do next. She then returned to where the boy was in the yard and carried or dragged him to the motor vehicle where a further assault by punching occurred in the car. Kourakis J (as he then was) found that there were two incidents involved on those facts, namely one in the school yard and one in the motor vehicle.
[2] (2009) 105 SASR 215.
In Wellington Kourakis J reviewed a number of authorities which discuss the limits of conduct which can be included in a single count without breaching the rule against duplicity. His Honour pointed out that generally speaking a narrower view has been taken in cases involving conduct which can properly be encompassed within a single count of causing harm than has been taken in cases which deal with assaults simpliciter. It is much more difficult to characterise, for example, a broken nose caused by a blow with a fist and a wound to the abdomen caused by stabbing with a knife, even if caused very shortly thereafter, as one single offence.[3]
[3] Wellington v Police (2009) 105 SASR 215 at [19].
While the facts in Wellington are readily distinguishable from the allegations in this case, nevertheless, Wellington illustrates the difficulties faced by courts in attempting to produce a technical verbal formula of precise application when determining whether the common law rule against duplicity has been infringed. As Kirby J observed in Walsh v Tattersall,[4] that is something the courts have never managed to do. However, all these authorities demonstrate that the question whether the evidence discloses one or more offences is necessarily one of fact and degree.
[4] (1996) 188 CLR 77 at 108.
Indeed one may contemplate any number of factual scenarios which might involve separate applications of force, but which on any reasonable view of the facts constitute only one course of conduct or one incident. For example, it is doubtful whether anyone would argue that in a case where a person fires three shots at another person, it is necessary to charge three counts of attempted murder in respect of each shot fired.
In Walsh Kirby J said:[5]
Ultimately, what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion.
[footnotes omitted]
[5] Walsh v Tattersall (1996) 188 CLR 77 at 108.
Kirby J observed that clearly a great deal depends on the nature of the offence under consideration and went on to say:[6]
Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature; and in other anomalous cases.
[footnote omitted]
[6] Walsh v Tattersall (1996) 188 CLR 77 at 109.

In Lepadatu v Police,[7] the appellant was convicted of one charge of resisting three named police officers in the execution of their duty, contrary to s 6(2) of the Summary Offences Act 1953 (SA). The appellant contended that the charge was duplicitous.
[7] [1999] SASC 400.
In determining that the appeal should be dismissed, Martin J observed that no prejudice had been identified by the appellant in the charging of one offence only as opposed to three. The appellant knew what he had to meet. In finding that the charge itself was not duplicitous, his Honour referred to an earlier case of Hull v Nuske[8] in which Walters J said:
It seems to me that the offence of resisting a police officer in the execution of his duty is a "conduct offence" and that the actus reus can properly be made up of behaviour consisting of the one set of circumstances which form the central feature of the offence. The fact that the behaviour alleged to constitute a resistance of a police officer is aimed or directed at two police officers, lawfully engaged in the joint performance of the one and the same duty, does not in my opinion lead to the consequence that there are two independent actus rei which may be separately charged. In my view, it would be going too far to say that in relation to each officer, the external facts arising out of the one set of circumstances and involving a resistance of that police officer, in the execution of a duty being lawfully performed by him jointly with another police officer, can lead to the commission of two distinct offences. I think an unjust result would follow if an offender were to be convicted of two or more separate offences arising out of a continuous act or proceeding which gave rise to a resistance, at the same time, of more than one police officer in the execution of duty. It seems to me, therefore, that in the circumstances of this case, the conviction for breach of s 6(2) of the Act is not bad for duplicity, simply because it is recorded in the language of the complaint. It follows that I do not think the complaint was defective; it disclosed only one offence.
[8] (1974) 8 SASR 587 at 593.
It needs to be borne in mind that the rule against duplicity rests upon basic considerations of fairness to an accused, namely that he should know what case he has to meet.
In this matter there are a number considerations which have led me to the conclusion that, notwithstanding that three police officers have been named as the victim of the offence, there is no duplicity either patent or latent in the charge of aggravated assault.
Although not necessarily decisive, it is relevant to observe that experienced counsel Mr Vadasz who appeared before the Magistrate made no complaint at any stage concerning any alleged duplicity or uncertainty about the basis on which the appellant should be sentenced. Secondly, the appellant was unable to identify the prejudice he suffered in this case by the charging of only one count in respect of the threats made to the police officers. The appellant was also unable to satisfactorily explain why the Magistrate should not, irrespective of whether one or three charges were laid, have sentenced the appellant on the basis of the events which occurred in that short space of time as the police endeavoured to place him in the police vehicle and transport him to Mount Gambier.
In one respect, it might be thought that the appellant is fortunate to have had only one conviction for assault recorded against him instead of a number arising out of this incident. I would add, having read the whole of the transcript of what transpired after the appellant’s arrest at Naracoorte, that he is perhaps fortunate not to have been charged with any further offences. On the whole of the transcript it appears that the appellant was behaving in an abusive, violent and at times threatening manner over a protracted period of time.
The appellant complains that there is a lot of uncertainty about the basis on which the Magistrate sentenced the appellant. I do not agree. The Magistrate’s sentencing remarks made it plain that the basis for sentence of the aggravated assault was the two threats to the police officers referred to previously and the kick in the leg to Constable Mailley as they struggled to return him to the rear of the police vehicle. That factual basis is supported by the statements of each of the police officers.
Counsel for the appellant submitted that there could not have been any real apprehension by the police that the appellant would carry out his threat. This was because the assault occurred at a time when the appellant was handcuffed and was not in a position to carry out his threat.
That submission can be dealt with shortly. It is plain from the provisions of s 20(1)(c)(ii) of the Criminal Law Consolidation Act 1935 (SA) that in order to constitute an assault under that section all which needs to be established is that there are reasonable grounds for the victim to believe that there is a real possibility that the person will carry out the threat. It is beside the point that at the time he uttered the threats the appellant was not presently in a position to carry out the threat. The fact is that this offence occurred, as the Magistrate noted, in a small country town. In those circumstances, the police officer’s apprehension that the appellant might return and pose a threat when released was not unreasonable.
In my view, the appellant has not demonstrated any prejudice as a result of the particularisation of the charge of aggravated assault. There is no uncertainty about the factual basis on which the Magistrate sentenced. That factual basis was open to him in light of the evidence as to what occurred. The decision to lay only one count instead of multiple counts of assault appears to have been a pragmatic decision made in order not to overload the information. In my view such an approach should be encouraged, not discouraged.
For these reasons I have concluded that the conduct which gave rise to the offence of aggravated assault constituted only one course of conduct which should properly be regarded as a single incident. This ground of appeal must also be dismissed.
Finally, I turn to the complaint that the sentence of 10 months imposed for the offence of aggravated assault was manifestly excessive. The maximum penalty for an offence of aggravated assault is three years. The appellant had numerous previous convictions for offences of violence. One of those offences included convictions on 30 October 2009 for an offence of disorderly behaviour, assault police and resisting arrest. For that offence, the appellant was placed on a bond to be of good behaviour for 18 months and to come up for sentence if called upon. In fact, the offence of non-aggravated criminal trespass and theft committed on 10 February 2011 breached that good behaviour bond. It is obvious that the appellant was not entitled to any leniency in respect of this further offence committed against police.
Furthermore, the courts have always been vigilant to emphasise that assaults on police officers carrying out their lawful duties must attract sentences which will act as an effective deterrent to others. In this case, I would add that in light of the appellant’s history the sentence also needed to act as an effective personal deterrent to this particular appellant. In these circumstances, a starting point of 10 months before any discount for the guilty plea was well within the range available to the Magistrate.
I would add that, even if I am wrong in concluding that there has been no error, if called upon to exercise the sentencing discretion afresh I would not have imposed a different sentence. It is unfortunate that the appellant, who is still a relatively young man, has spent a substantial portion of his youth both as a child and as an adult in custody. However, it is an unfortunate fact too that when released on parole the appellant has continued to offend. His history demonstrates an inability to comply with court orders. The issue of personal deterrence must loom large in sentencing the appellant.
For these reasons, apart from the technical error acknowledged by both parties in relation to the date from which the unexpired parole should be calculated, I am not prepared to interfere with the sentence imposed except to correct that technical error.
After making allowance for that period of eight days, I make the following orders:
1The appeal is allowed for the limited purpose of correcting the date from which the unexpired parole was calculated. That period is 3 months and 28 days. Accordingly I impose a head sentence of 29 months and 28 days. The non-parole period is 19 months and 22 days. Both the head sentence and the non-parole period will run from 29 June 2012.