WOODHOUSE v Police - [2005] SASC 318

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WOODHOUSE v POLICE
Judgment of The Honourable Justice White
22 August 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appeal against sentence imposed by Magistrate - appellant pleaded guilty to offences including an offence of resisting police and breaching a bond condition - Magistrate imposed suspended term of imprisonment of 28 days - whether imposition of term of imprisonment manifestly excessive - whether Magistrate placed undue weight on offences occurring in close proximity to children - whether Magistrate failed to consider appellant's alcoholism as mitigating consideration - discussion of significance of an addiction to alcohol - length of suspended term of imprisonment not excessive - appeal dismissed.
Summary Offences Act 1953 s 6, s 7; Bail Act 1985 s 17, referred to.
R v Proom (2003) 85 SASR 120, applied.

WOODHOUSE v POLICE
[2005] SASC 318
Magistrates Appeal

WHITE J: The appellant was sentenced by a Magistrate for four offences, each of which was committed on 28 May 2005. He had pleaded guilty to each of those offences.
The first offence was that of using offensive language in a public place contrary to s 7(1)(c) of the Summary Offences Act 1953. The second offence was that of behaving in a disorderly manner in a public place, contrary to s 7(1)(a) of the Summary Offences Act. The third offence was that of resisting a police officer in the execution of his duty, contrary to s 6(2) of the Summary Offences Act. The fourth offence was that of contravening, without reasonable excuse, a term of a bail agreement which had been entered into by him on 11 May 2005. The maximum penalty for each of the first two offences is a fine of $1,250 or imprisonment for three months. The maximum penalty for the third offence is $2,500 or imprisonment for six months. The maximum penalty prescribed for the offence of breaching a term of a bail agreement is a fine of $10,000 or imprisonment for two years. However, the penalty imposed for breaching bail in an individual case cannot exceed the maximum penalty that may be imposed for the principal offence.[1] In the appellant’s case, that was an offence of offensive language committed on 11 May 2005 for which, as noted above, the maximum penalty is a fine of $1,250 or imprisonment for three months.
[1] Bail Act 1985, s 17(2).
In respect of the third and fourth offences, the Magistrate sentenced the appellant to a term of imprisonment for 28 days but, on the appellant entering into a bond to be of good behaviour for a period of 12 months and to comply with other conditions, suspended that sentence. In respect of the first and second offences, the Magistrate entered a conviction without imposing further penalty.
Circumstances of the Offending
The appellant is aged 34. He was acknowledged by his counsel, both before the Magistrate and before me, to be an alcoholic who has abused alcohol for several years. Although he has from time to time in the past sought assistance for his alcohol problem, that has had only limited success. The Complaint containing the charges described the appellant as having no fixed place of abode. I was informed that he is homeless and that it is his practice to sleep overnight at various places in the Parklands. His counsel described him as a member of a skid row subculture the life of which centres around the obtaining and consumption of alcohol. He makes regular use of services offered by charitable organisations.
On 11 May 2005, the appellant was charged with the offence of offensive language in a public place, namely, the area of the South Parklands known as Glover Park. That area includes a playground. The appellant was granted bail pending the determination of that charge. It was a term of his bail that he was not, whilst on bail, to enter the area of the South Parklands bounded by Goodwood Road, South Terrace, Unley Road and Greenhill Road. That area included Glover Park.
On the afternoon of Saturday 28 May 2005, the appellant was found by the police lying in the South Parklands in the area to which the bail agreement referred. Having been spoken to by the police, the appellant commenced to walk in a westerly direction on the footpath on the southern side of South Terrace in the area immediately adjacent to the entrance to Glover Park. At that time, a child’s birthday party was taking place in Glover Park The appellant was uttering audible profanities. There were present approximately 25 children ranging in ages from 3 to 12 years, and approximately 35 adults. The appellant’s profanities were clearly audible to these people. The appellant walked to the main entrance gate to the park and attempted to pull the gate open, all the while continuing to utter audible profanities. He then opened and slammed shut violently the gate to the Park three times. The party group was approximately 10 metres away.
The appellant was then approached by the police, who told him that he was under arrest for disorderly behaviour. The appellant resisted the police attempt to arrest him and attempts to handcuff him. The resistance comprised a stiffening of his arms and a waving of them about so as to avoid being detained. Eventually, the police had to take the appellant to the ground in order to handcuff him.
The Magistrate accepted that the appellant was intoxicated at the time.
The appellant was held in custody from the time of his arrest until sentenced by the Magistrate in the mid afternoon of Monday, 30 May 2005.
The Appellant’s Antecedents
The appellant has an extensive offending history. Of particular relevance in the present case is that since coming to South Australia in 1999, and prior to 28 May 2005, he has been convicted twice of the offence of failing to comply with a bail agreement, 10 times for the offence of resisting police, twice for the offence of hindering police, 12 times for the offence of disorderly behaviour and eight times for the offence of offensive or indecent language.
The appellant has previously had the benefit of a bond. On 29 March 2000, he was sentenced for an offence of common assault on a member of his own family. He was released without conviction on him entering into a bond to be of good behaviour for a period of eight months. The appellant complied with the terms of that bond. On 11 April 2003 the appellant was sentenced for a number of offences which included the offences of disorderly behaviour, offensive language and resisting police. He was convicted but released without further penalty upon him entering into a bond to be of good behaviour for a period of 12 months and to comply with certain specified conditions. It is apparent that the appellant did not comply with the terms of that bond. On 6 May 2004 and 10 June 2004 respectively, the appellant was sentenced for offences which included the offence of resisting police. On each occasion he was released on a bond. In the first case, the term of the bond was 18 months and in the second, 12 months. The subject offending occurred whilst those bonds were still current. The appellant also committed other breaches of those bonds.
On 18 January 2005 the appellant was sentenced by the Magistrates Court for a number of offences which included six charges of resisting police officers in the execution of their duty. He was sentenced to six weeks imprisonment but that sentence was suspended upon him entering into a bond to be of good behaviour for a period of 18 months and to comply with other conditions. The subject offending occurred whilst that bond was current. Finally, on 28 February 2005, the appellant was sentenced to imprisonment for one month for an offence of common assault on a person other than a family member. That sentence was suspended upon him entering into a bond to be of good behaviour for a period of 18 months. The subject offending occurred whilst that bond was current.
The Appeal
On the appeal, the appellant did not complain of the Magistrate’s decision to impose a sentence of imprisonment for the third and fourth offences. He submitted, however, that a shorter period of imprisonment than the 28 days imposed by the Magistrate was appropriate. In the appellant’s submission, a sentence of imprisonment of 28 days, even though suspended, was excessive in the circumstances of his offending.
The appellant argued two matters in support of that contention. The first can be dealt with quite shortly. It was submitted that the Magistrate placed undue weight, as an aggravating factor, on the fact that the appellant’s conduct had occurred in close proximity to a large number of children. It is true that the Magistrate did say “What I find aggravating about these offences is that they occurred in the presence of young children and families on what should have been a happy afternoon birthday party.” However, in my opinion, those remarks were directed to the offences of disorderly behaviour and offensive language. The sentence of imprisonment was not imposed in respect of those offences. It is not reasonable to understand the Magistrate’s remarks as being directed to the offence of breach of bail conditions, as the presence or otherwise of the children was not relevant to that offence. Further, the presence of the children had only a limited relevance to the offence of resisting the police officers.
The second matter upon which reliance was made on the appeal was the appellant’s alcoholism. It was submitted that the appellant has a pathological addiction to alcohol. Because of that addiction, it is difficult for him to modify his behaviour. Further, it was submitted that the very nature of his lifestyle gave rise to an uneasy relationship with the police, with the mere presence of police, even without their intervention, being viewed with hostility by the appellant and other members of his subculture. This results in a lack of cooperation and resistance to the police. Whilst I understand the force of those submissions, I do not consider that they indicate that the decision of the Magistrate was in error.
The significance of addiction to illegal drugs, especially where the addiction leads to criminal conduct directed to obtaining the means with which to assuage the craving produced by the addiction, was considered recently by the Full Court in R v Proom[2]. Many of the observations concerning the significance of addiction in those circumstances are also apposite in the present case. On the one hand, the appellant’s alcohol addiction serves to reduce his moral culpability. Offending which occurs whilst he is intoxicated can be attributed, at least in part, to the intoxication. Offending which occurs whilst he is sober can be attributed, at least in part, to his craving for further alcohol. The lifestyle he leads is likely to bring him into contact with the police in circumstances such that no matter how reasonable their conduct, it is likely to be viewed with irritation, if not resentment. But as was pointed out in Proom, moral culpability is not the only relevant consideration.[3]. The appellant’s addiction makes the risk of re-offending very real. The appellant’s counsel acknowledged, quite frankly, that the prospects for improvement in the appellant’s behaviour in the future depended on his willingness to give up alcohol. I was informed that the appellant admitted quite candidly that he did not intend to give up alcohol even though he recognised the great harm it was doing to him and the trouble which it was causing. In those circumstances, it seems likely that whatever sentence is imposed will not have any significant rehabilitative effect on the appellant. It also indicates that a sentence of imprisonment may not have all the deterrent effect which the law supposes is usually the case. Perhaps these considerations underpin the lenience which the appellant has received in the past. But given the appellant’s repeated offending involving resisting or hindering police, the Magistrate was entitled to conclude that a more severe penalty was now appropriate.
[2] (2003) 85 SASR 120.
[3] R v Proom (2003) 85 SASR 120 at 130 [48].
I agree with the appellant’s counsel that a sentence of imprisonment is a somewhat crude and blunt instrument in the present circumstances. However, the appellant has to accept legal responsibility for his conduct. His alcoholism does not relieve him of the obligation to comply with the law. The appellant has been offered lenience in the past. Given his history of continued offending whilst subject to a good behaviour bond, the Magistrate was entitled to take the view that release, with or without conviction, on a further bond was inappropriate. It seems to me to be difficult to hold that the Magistrate should have concluded that a short term of imprisonment would be sufficient to meet the punitive, rehabilitative and deterrent objectives of sentencing in this case but that 28 days was excessive. Account was taken by the Magistrate of the appellant’s alcohol addiction. Were it not for that addiction, the appellant’s offending, in the light of his antecedents, would probably have resulted in a longer period of imprisonment.
In my opinion, the appeal should be dismissed.