Supreme Court of SA|2003-10-07|Before: Bleby J

BIRCH v POLICE No. SCCIV-03-1264 [2003] SASC 354 (7 October 2003)

1 BLEBY J: The appellant was originally charged with six offences as follows:

4. Resisting a member of the police force in the execution of his duty;

5. Assaulting a member of the police force in the execution of his duty; and

6. Giving a false name and address to a member of the police force.

2 At pre-trial conferences he had indicated an intention to plead guilty to counts 2 to 6 inclusive but not guilty to count 1. On the day of his trial, 22 August 2003, count 1 was withdrawn and the plea of guilty was duly entered to the other counts. On those counts he was sentenced to five months imprisonment, the sentence being suspended upon the appellant entering into a bond in the sum of $50 to be of good behaviour for a period of two years. He now appeals against that sentence.

3 The charges to which the appellant pleaded guilty arose out of a course of conduct which occurred at about 1.10 am on Saturday, 8 March 2003. Police attended at a disturbance at Teusner Drive, Morphett Vale. The appellant was in a group of people. He was grossly intoxicated and was behaving in a loud and abusive manner waving his arms about and stumbling. That was the essence of count 2.

4 The appellant was heard to say, "What the fuck do you want that for?", "I don't have to tell you shit", and "Fuck off cunt." That was the basis of the charge of offensive language, count 3.

5 The appellant was then arrested by the police and was restrained by them. He began to resist the efforts of the police to restrain him, trying to free his arms and jumping up and down in an effort to free himself. That was the basis of count 4, resisting the police.

6 During the ensuing struggle the appellant spat saliva out of his mouth. Some of that came into contact with the police with whom he was struggling. That formed the basis of count 5, assaulting a member of the police force. Nevertheless, it was accepted by the prosecution that there was no deliberate attempt to spit at police. It was accepted that the appellant was recklessly indifferent as to whether saliva would come into contact with the police during the struggle.

7 The appellant was eventually conveyed to the Christies Beach Police Station having previously given a false name and address to the police. He gave his correct name and address at the police station. The giving of the false name and address forms the basis of count 6.

8 On the appellant's behalf it was put that he had attended a social gathering at a friend's house on Teusner Drive. He had consumed a substantial quantity of alcohol. He was suffering from depression for which he was prescribed medication, and the combination of the anti-depressant medication and alcohol exacerbated his level of intoxication. His general behaviour and his behaviour towards the police was a direct result of that level of intoxication. He had been accused by the police of damaging a fence being the subject of count 1. He became agitated with police for accusing him of that which he denied and which he continued to deny, that count ultimately being withdrawn. His struggle with police was predominantly because he was trying to avoid physical discomfort resulting from pressure being applied in the course of his being handcuffed by police. It was further put that the offensive language and disorderly behaviour were of minimal effect because they occurred late at night, few if any members of the public were affected, and the offences involving the police did not result in any injury.

9 The appellant was aged 19 at the time. He was engaged in full-time employment as a metal spinner and had been in employment since leaving school some four years previously. He lived at home with his parents and younger sister. He had one previous court appearance as an adult for offences of disorderly behaviour and hindering police for which he was fined $300. He had also been convicted in the Youth Court of resisting police for which he was fined $200 and was subject to a Youth Court obligation in the sum of $200. There were no previous convictions for assaulting police or for other offences involving violence.

10 The Magistrate accepted that the pleas of guilty had been effectively entered at the first opportunity. He accepted that the appellant's state of intoxication was caused by the combination of alcohol and the prescribed medication. He accepted that the appellant did not deliberately spit at the police.

11 It became apparent during the course of submissions to the Magistrate that the Magistrate was considering an immediate custodial sentence. His counsel therefore directed submissions as to suspension of the sentence. From his sentencing remarks it is clear that the Magistrate was influenced by the fact that police were spat on, albeit recklessly, and that general deterrence was the important factor. He considered that the gravity of the offence warranted imprisonment, but that it should be suspended as an inducement to ensuring compliance with his bond to be of good behaviour.

12 Among other things the appellant complains that the Magistrate failed to consider the effect of s 11 of the Criminal Law (Sentencing) Act 1988. That section relevantly provides that a sentence of imprisonment may only be imposed 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."

13 There is nothing in the material before me to suggest that the Magistrate addressed his mind to that section. However, that does not mean that he did not. It is significant, however, that during the course of the appellant's submissions the Magistrate expressed the view that the starting point should be a period of imprisonment.

14 Whether or not the Magistrate did consider s 11 there is nothing in that section which, in the circumstances, would have precluded the Magistrate from imposing a sentence of imprisonment. The appellant's previous offences and these offences did show, in my view, a tendency to violence towards other persons and the appellant had previously been convicted of offences punishable by imprisonment. I make that observation notwithstanding dicta to the contrary expressed by Lander J in Telfer v Police (2001) 80 SASR 570, at par [45]. However, in the circumstances of this case it is not necessary to venture further into that matter.

15 Even if the criteria of s 11 are met, that does not mean that a sentence of imprisonment was appropriate in all the circumstances. The appellant was only 19 at the time. He had a good record of employment and was still in employment. He appears to have had the support of his family. The behaviour appears to have been exacerbated by a combination of prescription medication and alcohol resulting in a high level of intoxication. Whilst his behaviour was plainly reckless and foolish, driven by the level of intoxication, the assault was not intentional. While on paper, and taken together, the offences appear significant, they were at the lower end of the scale of offending.

16 In my opinion personal deterrence was in this case a much more significant factor than general deterrence. Taking all the factors I have mentioned into account, particularly the appellant's age and personal circumstances, a sentence of five months imprisonment, even though suspended, was manifestly excessive. It was not justified by way of personal deterrence.

17 I said that personal deterrence was in my view a significant factor in sentencing this appellant. His previous offending and his behaviour on this occasion should make him realise the sort of trouble he can get into by drinking excessive amounts of alcohol, particularly while he is undergoing a course of medication. He needs a strong incentive and a constant reminder that that sort of behaviour is unacceptable and will not be tolerated. He must realise that any re-offending of that nature will put his employment and his liberty in jeopardy. He needs a strong reminder that anti-social behaviour of that nature on his part will not be tolerated in future.

18 I do not consider that a once-off fine would be an adequate reminder. I agree with the Magistrate that he needs a strong incentive over a period of time not to offend again. In my opinion that is best achieved by placing him on a bond to be of good behaviour for two years and in the knowledge that, if he offends again, he will be liable to be punished for this series of offences as well. He should realise that if he is recalled for sentence for these offences the penalty might well include a period of imprisonment.

19 Accordingly, the appeal is allowed, conditional upon the appellant appearing and entering into the bond which I am about to mention. The sentence imposed by the Magistrates Court will be set aside. In respect of each of the offences of which the appellant has been convicted he is required to enter into a fresh bond. The fresh bond will run for a period of one year, 10 months and 15 days from the date on which it is entered into, being the balance outstanding of the period of the bond fixed by the Magistrate as at today's date.

20 The condition of the bond is that he be of good behaviour and that he will appear before the Magistrates Court for sentence if he fails during the term of that bond to comply with the condition of the bond. He must realise that if he breaches the bond not only will he be liable for sentence for these offences but that he will be a required to forfeit a significant sum. The bond will be in the sum of $500. There will be orders accordingly.

BIRCH v POLICE No. SCCIV-03-1264 [2003] SASC 354

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BIRCH v POLICE No. SCCIV-03-1264 [2003] SASC 354 (7 October 2003)

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