BROOKS v POLICE No. SCGRG-00-168 [2000] SASC 66

On 24 February 2000 a magistrate imposed a penalty of twelve months' imprisonment with a non-parole period of five months. The sentence was not suspended. On 29 February 2000 the appellant was released on bail pending an appeal to this Court.

The appellant now appeals against the sentence on the ground that it was manifestly excessive and that the sentencing Magistrate failed to give sufficient weight to a number of factors including the appellant's age, the absence of previous convictions for offences of violence, his plea of guilty and his personal circumstances, including his full-time employment and his plea of guilty. He also claims that the sentencing Magistrate gave undue weight to the need for general deterrence. A further ground was added at the hearing of the appeal, namely that having regard to fresh evidence referred to in the affidavit of the appellant's solicitor, the sentence was manifestly excessive.

At the hearing of the appeal counsel for the appellant tendered, by consent, an affidavit of the appellant's solicitor exhibiting a report of a psychologist obtained after the date of sentencing. There was also tendered, by consent, a copy of a medical report of Dr Ling, a plastic surgery registrar, dated 10 September 1999, concerning the injuries sustained by the victim. This report had not been before the Magistrate.

The report of the psychologist did not add greatly to the impression I gained from reading the material placed before the sentencing Magistrate. However, it did confirm a basis for the existence of a number of relevant factors to which I shall refer. It also provided for the first time significant information as to the appellant's early rather disturbed childhood and as to the level of his cognitive functioning.

The concession that fresh evidence should be placed before me on the appeal is tantamount to conceding that I must sentence afresh, because I have before me information which the Magistrate did not have. Nevertheless, I propose to examine whether the Magistrate did err on the material that he had before him, and whether the additional material would or should have made any difference to his approach to the sentence.

The incident the subject of the charge occurred on 9 May 1999 at the New York Bar and Grill, Marion Shopping Centre. It was early on a Sunday morning. The appellant, judging by his later responses to the police, was significantly affected by alcohol at the time. He has little memory of the events in question. He was emotionally affected by the recent break-up of a relationship. The fresh psychological evidence shows that he is an emotionally unstable person, a state no doubt reflecting his disturbed childhood.

It appears that the victim was making his way to the bar to say goodnight to some friends. I infer that it was a reasonably crowded and noisy nightclub. As the victim approached the bar he accidentally bumped into the appellant, causing him to spill his drink. No words were then exchanged. However, after a short time the appellant began yelling at the victim whilst he was conversing at the bar. The victim turned towards the appellant but could not hear what he was saying. He resumed his conversation with his friend. He turned around again to see where the appellant was, and the appellant then hit the victim in the face with a glass, causing severe cuts to his nose and above his left eye.

The earlier bump was accidental, but it appears that that provoked the appellant, in his alcohol-affected state, to retaliate in the quite unjustified way that he did. The injury to the victim was reasonably severe. The Magistrate was told that he suffered a minor fracture to the bridge of his nose which did not require treatment. However, the laceration above the fracture adjacent to the left eye and on the forehead above the left eye required 36 stitches. After treatment in hospital he was discharged to the care of his parents in the evening of 9 May. According to the report tendered at the hearing, the scars, although relatively prominent in the first four to six months following repair, would be permanent, but with time should fade significantly. Whilst later revision was possible, most scars settle without that being required.

The appellant was aged 20 at the time of the offence. At the time of his conviction he had been in steady employment for two and a half years with the same employer. It is an unskilled job, but he has nevertheless remained in it for that time notwithstanding what are now revealed as cognitive functioning problems. I anticipate that he would have great difficulty in finding another job if he were to lose this job as a result of being imprisoned. He had been employed since leaving school in 1994 at the level of Year 9. He has deferred enrolling in an information technology course at a TAFE college pending the outcome of these proceedings. He is single, lives with his mother and half-sister, and for a number of years has played competition football.

From 1994 to early 1997 he committed a series of relatively minor drug-related offences and some minor dishonesty and property offences. For all of these he was dealt with in the Youth Court. He appears to have begun to grow out of that pattern of juvenile offending, for until this offence he had had no recorded offending for two and a half years. This was his first offence as an adult and the first for any crime of violence.

The offence appears to have been unpremeditated, and out of character. No doubt it was contributed to by the excessive amount of alcohol that the appellant had consumed.

There was and is some evidence of shame and contrition on the part of the appellant for what he had done, and realisation now of the seriousness of the offence. He has lost friends because of the offence. However, he has caused significant pain, expense and embarrassment to his victim and substantial distress to his mother.

The sentencing Magistrate recognised the need for the penalty to reflect the seriousness of the offence and to provide an opportunity for rehabilitation. He allowed 25 per cent discount on the sentence he would otherwise have imposed on account of the appellant's cooperation and plea of guilty. It cannot be said that the Magistrate overlooked that. The Magistrate concluded, however, that considerations of deterrence, general and personal, must predominate. It was on that basis that he fixed the sentence and the non-parole period to which I have referred.

As to suspension of the sentence the Magistrate said:

"[U]pon reflection and having regard to all the circumstances of this particular case, bearing in mind that the defendant is a first offender with respect to this type of offending, in my view this is not a case where I should exercise the discretion in favour of the accused."

It was a serious offence. It warranted a sentence of imprisonment. The appellant's counsel, before the Magistrate, properly conceded that. The appellant must learn to realise and others in like situations must also realise that vicious and dangerous assaults in circumstances like that cannot be tolerated. The sentence of imprisonment fixed by the Magistrate was not excessive. It was well within the range appropriate for the nature and circumstances of the offence, notwithstanding that it was the first offence of that type committed by the appellant, and also his relative youth. There is nothing in the additional material before me which would justify review of the sentence. It must remain as a significant reminder to the appellant and to others of their obligations to the community.

However, in my opinion, the Magistrate failed to take into account a number of important and relevant factors in deciding not to suspend the sentence. Those factors, if anything, are strengthened by the additional material now placed before me. I stress that these are factors personal to the appellant, and are not related to the circumstances of the offending.

The first is the appellant's age, and the fact that this was also a first offence of this type.

Secondly, the evidence pointed to the appellant's successful rehabilitation from juvenile offending, and that he had a responsible place in the community, both in work and in community affairs.

Thirdly, for the appellant, the offence was out of character and spontaneous. There was an explanation for it, although not an excuse.

Fourthly, the appellant had shown considerable insight into his offending, and was fully conscious of its seriousness. This has been confirmed by the report of the psychologist. It is unlikely that he will offend like that again. He has good prospects of rehabilitation as a useful member of the community.

Fifthly, he was in stable employment. Although unskilled, he had retained that position for over two and a half years notwithstanding his cognitive difficulties.

In the sixth place his offer, through his counsel before the Magistrate, to undertake a course in anger management was relevant and material, given the circumstances in which the offence was committed. His willingness to undertake such a programme and its desirability has since been confirmed by the psychologist's report. He has shown to be a man of limited emotional stability, and the psychologist "strongly" recommended that he be referred to an anger management programme in order to learn more appropriate skills in dealing with his emotions. He also recommended, incidentally, that he be referred to an appropriate alcohol/drug programme to provide him with more insight into the consequences of abuse of both alcohol and drugs.

Seventhly, although this was not before the Magistrate, the psychologist's report expresses the opinion that the appellant is less likely to offend if he is provided with an appropriate rehabilitation programme to deal with his anger and alcohol problems. If he were required to serve a period of imprisonment, it is likely that he would interact with more seasoned offenders and, being vulnerable, that he would be more open to the potential of offending in the future.

Finally, there is the question of compensation to the victim. Through his counsel before the Magistrate the appellant offered to pay compensation to the victim. That offer was not pursued by the Magistrate, and no further information was sought as to the appropriateness or amount of any order for the payment of compensation.

On this latter aspect a little more needs to be said before assessing the significance of the appellant's offer.

The information as to the victim's loss and damage placed before the Magistrate was negligible. In the victim impact statement there was a summary of the actual injuries received, a statement that an ambulance charge of $460 had been incurred and that surgery was "Medicare covered". The medical report was not before the Magistrate. One must recognise, however, that at a time when a defendant pleads guilty to a serious offence involving personal injury to a victim, it will not always be possible to make an accurate prognosis of the victim's injuries. There will not always be adequate information available on which to base a proper order for the payment of compensation, if indeed that is appropriate.

A number of sections of the Criminal Law (Sentencing) Act 1988 ("the Sentencing Act") have a bearing on the payment of compensation. So far as is relevant s 53 of the Act provides:

"53 (1) Subject to this section, a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting from the offence of which the defendant has been found guilty or for any offence taken into account by the court in determining sentence for that offence. (2) An order for compensation may be made under this section - (a) either on application by the prosecutor or on the court's own initiative; and (b) instead of, or in addition to, dealing with the defendant in any other way. (2a) Where - (a) a court finds a defendant guilty of an offence, or takes an offence into account in determining sentence; and (b) the circumstances of the offence are such as to suggest that a right to compensation has arisen, or may have arisen, under this section, the court must, if it does not make an order for compensation, give its reasons for not doing so. (3) Compensation under this section will be of such amount as the court considers appropriate having regard to any evidence before the court and to any representations made by or on behalf of the prosecutor or the defendant. ...."

Other subsections of that section provide for the restrictions on the ordering of the payment of compensation where the use of a motor vehicle is involved or in employment related offences. Other provisions relate to the type of orders that may be made and the effect of the section on other rights to payment of compensation.

It will be noted that subsection (2a) provides that the court must give its reasons for not ordering the payment of compensation if it does not do so. No such reasons were given in this case. In many cases, although not expressly stated, the reasons for not awarding compensation will usually relate to inadequate information, either as to the victim's loss and damage or to the defendant's means or both. Nevertheless, the subsection is a salutary reminder that the question of compensation must be considered by a sentencing court in the course of deciding its sentence. Although raised as an issue by counsel for the appellant before the Magistrate, the question does not appear to have been further addressed in this case. In my opinion it should have been.

In many cases the reason for not making an order will relate to s 13 of the Sentencing Act. Compensation is included in the definition of "pecuniary sum" contained in s 3 of the Act. Section 13 provides:

"13 (1) The court must not make an order requiring a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that - (a) the defendant would be unable to comply with the order; or (b) compliance with the order would unduly prejudice the welfare of dependants of the defendant, (and in such a case the court may, if it thinks fit, order the payment of a lesser amount)."

Section 14 of the Act provides that where it is appropriate to make an order for compensation and to make an order for the payment of some other pecuniary sum (e.g. a fine) but the defendant has insufficient means to pay both, the court must give preference to compensation.

Section 10 of the Act, which sets out the matters to which a court should have regard in determining a sentence for an offence, includes in paragraph (f):

"(f) the degree to which the defendant has shown contrition for the offence - (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner."

Finally, it must be noted that s 42 of the Sentencing Act provides that a bond under that Act may include a condition requiring the defendant "to pay compensation of a specified amount (in a lump sum or in instalments) to any person for injury, loss or damage resulting from the offence" (s 42(1)(g)(ii)).

Along with these sections must be considered the relevant provisions of the Criminal Injuries Compensation Act 1978. Section 7 of that Act enables the victim to apply to a court for an order for compensation in respect of an injury arising from the offence. The parties to the application are the Crown and, where the offender's identity is known, the offender (s 7(5)). However, the order made is that the victim be paid the appropriate amount of compensation by the Crown (subsection (7)). There are limits upon the amount of compensation which may be ordered (see subsection (8)). Subsections (9) and (9a) provide grounds for reducing the amount of compensation in certain circumstances. Subsection (9b) requires the court not to make any award in respect of hospital or medical expenses incurred, to the extent that such expenses may be recovered from a health fund or scheme. Payment is to be made by the Attorney-General within 28 days of the day on which a copy of the order is lodged with the Attorney-General (s 11). However, the Attorney-General has a discretion to decline to satisfy an order, or may reduce the amount paid, in view of other payments received or likely to be received by the claimant in respect of the injuries. Section 11A provides a right of subrogation in the Attorney-General to the rights of the claimant as against the offender or any other person liable to compensate the claimant for the injury etc. It also confers rights of subrogation to the rights of the offender as against any insurer or other person from whom the offender is entitled to indemnity or contribution in respect of the liability. Section 11A(4) provides that the Attorney-General may recover the amount paid as a debt from an offender who has been convicted of an offence which gave rise to the injury. Subsection (5) provides a simple means of enforcing such a payment as a judgment of the appropriate court.

The combined effect of all these provisions is that, whilst a victim may properly have a claim for compensation under the Criminal Injuries Compensation Act, and that claim is brought against the Crown, the possibility of such a claim eventuating should not inhibit a court from making an order effective against a defendant under s 53 of the Sentencing Act. Nor should it inhibit a court from imposing a condition of a bond requiring a defendant to make payments of compensation if that is an appropriate course. Any amount paid by a defendant can be brought to account in payments made by the Attorney-General in satisfaction of an order under the Criminal Injuries Compensation Act.

The maximum amount payable by the Attorney-General pursuant to an order under the Criminal Injuries Compensation Act is restricted by a number of matters referred to in s 7 and s 11 of that Act. There are no such restrictions on a victim's common law rights against a convicted person or on any amount which a court may order by way of payment of compensation under s 53 or by way of bond under s 42(1)(g)(ii) of the Sentencing Act. However, in fixing any such sum a court must ensure that it is not over-compensating the victim, particularly if the court only has limited information before it. But as I have pointed out, a court in that position will not be restricted by the limitations contained in the Criminal Injuries Compensation Act.

A court will, however, be restricted by the defendant's ability to comply with any order for payment of compensation: s 13 Sentencing Act.

There is a means of enforcing such an order. Compensation is included in the definition of "pecuniary sum" in s 3 of the Sentencing Act. Therefore, subject to s 70 of the Act, an order for payment may be enforced in the same way as an order for the payment of any other pecuniary sum.

It must also be borne in mind that an order for the payment of compensation under s 53 can be properly be regarded as part of the sentence. For the purposes of the Sentencing Act "sentence" is defined as meaning:

"(a) the imposition of a penalty; (b) the decision of a court to offer a defendant an opportunity to enter into a bond; (c) the fixing or extending of a non-parole period; or (d) the making of any other order or direction affecting penalty."

An order under s 53 will obviously have an effect on penalty in cases to which s 14 of the Sentencing Act applies. It would also be a "relevant matter" for the purposes of s 10(o) of the Sentencing Act, being a matter to which the court is to have regard in determining sentence. It is an order or direction affecting penalty and is therefore part of the sentence (para (d)). Similarly, a decision determining that it be a condition of a bond that compensation be paid, whilst not an order of the court, is nevertheless an important part of the bond. It would qualify as part of the sentence under paragraph (b) of the definition. This approach is consistent with what Lander J decided in E v Police (1996) 66 SASR 492.

Viewed in that manner, the payment of compensation, whether by order under s 53 of the Sentencing Act or as a condition of a bond, must be considered as part of the range of sentencing options. It must be used with discretion. It will not be appropriate in every case. But it should be considered.

Finally, it must be noted that where compensation has been paid, it is not the payment of compensation itself which is a relevant matter in determining the sentence. Otherwise there might be one penalty for the defendant who has means and another for the defendant who plainly cannot pay compensation. Lower sentences are not to be bought by those who can afford them. What is relevant is the degree to which the defendant has shown contrition for the offence by taking the action to make reparation (s 10(f) Sentencing Act). Thus, a mere promise to make restitution will carry little weight: R v Rowe (1982) 7 A Crim R 39, but actual restitution could well be powerful evidence of contrition, which could become an important consideration in the sentencing: Police v John (1995) 181 LSJS 20 per King CJ at 22; Kovacevic v Mills [2000] SASC 106 per Doyle CJ, Mullighan, Bleby and Martin JJ at [81] to [82]. It can be a decisive factor in the exercise of a discretion to suspend a custodial sentence: R v Robertson (1984) 115 LSJS 51.

Furthermore, it is not simply the actual payment of compensation or restitution that is relevant. It is "the action taken" to make reparation that is important in assessing the degree of contrition. It is that action, and whether it shows contrition, which has the effect on the sentence. In my opinion, relevant action for the purposes of that paragraph will include an expression of willingness of the defendant to enter into a bond, a condition of which includes the payment of compensation. This is something more than an open-ended promise to pay compensation. It is a solemn undertaking to pay a fixed amount or amounts, breach of which undertaking may give rise to forfeiture of the bond and, in the case of a suspended sentence, to forfeiture of the defendant's liberty.

It can be seen that the Sentencing Act gives some prominence to the question of compensation to victims. It is not something to be left merely to action taken under the Criminal Injuries Compensation Act. Where a defendant has the means to pay compensation or make restitution, he or she should be expected to make the payment in any event. This is so especially in the case of fraudulent or like conduct where the defendant has enjoyed the benefits of that crime. But where a defendant exhibits genuine contrition borne out of a desire to pay compensation, but does not have the means to pay it (usually because the defendant never has had the means), and where it can be seen that some payment, periodic or otherwise, which the defendant can afford, may well have some therapeutic benefit in the rehabilitation of the offender, it can become a useful sentencing tool. This is so particularly where the alternative of imprisonment will mean loss of a job, a negation of any ability to pay compensation or to reimburse the Attorney-General, and a denial of any opportunity to the offender to become a useful member of the community. The impact of a custodial sentence on a person's ability to make restitution is a matter properly to be taken into account: Ruggiero v R (Unreported, Court of Criminal Appeal (Cox, Prior and Olsson JJ) 1 December 1998, Judgment No S6989) at [42] - [43].

Although the matter of compensation was not pursued before the Magistrate, given that I was required to sentence the appellant afresh, it was pursued before me, after I gave the parties an opportunity to consider the position. The appellant has now deposed to his financial circumstances and to his willingness to make payments of compensation which a court might order him to pay.

Through his counsel the appellant has also indicated his willingness to enter into a bond and to submit to the making of such payment as a condition of the bond. Default in compliance with such a condition would mean that any suspended sentence might have to be served. In my opinion, that is "action taken" for the purposes of s 10(f) of the Sentencing Act. It cannot be ignored as evidence of the appellant's contrition.

Along with the disclosure of his financial situation it is an offer which, when taken in conjunction with the other seven factors I have identified, turns the scales clearly in favour of suspending the sentence fixed by the Magistrate.

The circumstances which demand suspension in this case will not apply to every case. I wish to stress that an individual approach is needed in each case. As King CJ said in Yardley v Betts (1979) 22 SASR 108 at 112 - 113:

"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm.... The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so. How are these principles to be applied to offences of assault? Assaults vary very greatly in seriousness. Some result in injury to the victim and some do not. Some are committed under provocation in the heat of the moment and others are wanton and premeditated attempts to impose the offender's will on the victim by force. Some are mere man to man altercations and others are terrifying and cowardly examples of mass violence. Many other variations could be mentioned. The offenders vary from the normally law-abiding person who is caught up in a situation of stress which erupts into violence, to the habitual bully and thug. In some cases a term of imprisonment may turn a usefully employed person into a frustrated unemployed person, may deprive the offender of the best and most stabilizing influences in his life by disrupting a good family situation, and may increase a propensity to crime by placing him in the company of criminals. The need for deterrent punishment will vary according to the circumstances of the offence. A consideration of these factors leads to the conclusion that cases of assault require individual assessment and treatment. In my opinion there can be no presumption one way or the other as to whether imprisonment is the appropriate way of dealing with any particular case. A judicial policy which were to embody such a presumption in respect of assaults generally, or assaults which could be characterized as 'serious', or assaults where 'some injury is caused to the victim', would not, in my view, be justified. It is worth pointing out that the degree of injury suffered by the victim is not in every case a satisfactory measure of the gravity of the offence or the culpability of the offender."

If the present sentence in this case is carried out, there is little prospect of the appellant ever being able to contribute towards the compensation of the victim. He would lose his only source of income, and would have great difficulty in obtaining another job upon his release. A suspended sentence, with payment of compensation as one of the conditions, will not only give the appellant a substantial prospect of successful rehabilitation, but will enable him to contribute in a material way to his victim's welfare and to society, by reducing the burden on the public purse of compensation for the victim's injuries.

Taking all these factors into account, and bearing in mind also that the appellant has served five days of his sentence, in my opinion the sentence should be suspended, but subject to his entering into a bond, a condition of which should include periodic payments of compensation.

The only difficulty in either ordering the payment of compensation or in making its payment a condition of a bond is the lack of evidence before me as to the full nature and extent of the victim's loss and damage. The evidence shows that he has instructed solicitors in connection with a criminal injuries compensation claim which has not yet been formulated. That fact should not prevent the Court from recognising the appellant's act of contrition, nor should it prevent the Court from giving effect to the appellant's offer if it is otherwise appropriate to do so.

In the absence of comprehensive information, the amount must be conservative, but consideration of that amount is not restricted by conditions applicable to an award under the Criminal Injuries Compensation Act. It should be done in a way which does not otherwise limit the appellant's liability either to the victim at common law or to the Attorney-General for any reimbursement under the Criminal Injuries Compensation Act.

I have sufficient information before me to conclude that there is a prima facie entitlement to compensation by the victim. He was required to pay, out of his own pocket, the sum of $460 ambulance fees. I have already summarised the injuries as they were described to the Magistrate. The most recent information suggests that the scarring is permanent from the bridge of the victim's forehead to the end of his nose. He does not suffer from headaches or any form of pain at present, but is considering plastic surgery. Whatever may be his ultimate entitlement, I consider that the appellant should be required to undertake to pay a sum of not less than $2,000 over a period of not more than 12 months, and by monthly payments of not less than $175. I am satisfied on the information before me that he would be capable of complying with such a requirement if it were made an order of the Court (s 13, Sentencing Act). I hasten to add that I am not ordering the appellant to make a payment under s 53. I am merely indicating that it will be a condition of a bond which the appellant is free to undertake if he wishes to have the sentence suspended.

The appeal will therefore be allowed. The sentence of imprisonment imposed on the appellant by the Magistrates Court of South Australia on 24 February 2000 is confirmed. That sentence will be suspended upon the appellant entering into a bond in the sum of $800 to be of good behaviour for a period of two years. The conditions of the bond will be:

1. That he be of good behaviour, and comply with all the conditions of the bond.

2. That he be under the supervision of a probation officer for a period of two years and obey the lawful directions given to him by his probation officer.

3. In particular that he comply with any directions of his probation officer to attend and participate in a course in respect of anger management and/or alcohol and drug abuse.

4. That without prejudice to any other rights which Daniel Woods may have against the appellant and without prejudice to any rights which the Attorney-General may have against the appellant under the Criminal Injuries Compensation Act 1978, the appellant on or before 31 May 2001 pay to the Magistrates Court of South Australia by way of compensation for loss and damage sustained by the said Daniel Woods as a result of the offence committed by the appellant the sum of $2,000. Payment of such sum shall be by monthly instalments of not less than $175 until payment in full is made, the first of such payments to be made on or before 31 May 2000 and thereafter on or before the last day of each calendar month.

5. That he report, within two working days of having signed the bond, at the appropriate office to be nominated of the Department of Correctional Services.

In all other respects, the order of the Magistrates Court is confirmed. I will hear the parties as to costs.