• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

2. However, his Worship ordered the sentences of imprisonment to be suspended upon the appellant entering into a supervised bond to be of good behaviour for twelve months.
3. The appellant has appealed against the suspended sentences of imprisonment on the ground that those sentences were manifestly excessive. There is no appeal against the fine imposed for the disorderly behaviour.
4. The circumstances of the offences were that on 11 October 1991 between 12.30 am and 1.20 am the appellant was in Todd Mall with several friends. He approached the glass door entrance to a store called Murray Neck Retrovision, took hold of the handle and began pulling it back and forth until the strain of his movements shattered the glass. He then left the area. Later the police spoke to the appellant at his residence where he readily admitted the offence stating, 'Suzie told me to.' He was arrested and later bailed to appear.
5. On 2 February 1992, he was taken to the Alice Springs Police Station watch-house pursuant to s128 of the Summary Offences Act. Once inside, he began to shout. After he began to swing punches at police and to bang his fists on the charge counter, he was taken forcibly to the male "drunk tank." After being placed in a cell, whilst one of the constables was walking away, the appellant spat on his back. This action constituted the charge of assaulting the police officer.
6. The pre-sentence report available to the magistrate was most comprehensive. It annexed a number of reports, including a psychiatric report dated 17 March 1989 (when the appellant was sixteen years of age), a report by Dr Urban, a medical practitioner from a child development clinic dated 16 May 1978 (when the appellant was aged five years two months), a report from a speech therapist dated 2 November 1977, a report from Dr Urban dated 4 October 1977 (when the appellant was 4 years seven months old), a report from the Bindi Centre dated 9 March 1990, a report from Acacia High School dated November 1988, and a report from the Bindi Centre dated 10 March 1989. As well, a report from the Bindi Centre dated 2 November 1991 was tendered. I will not canvass these reports in detail. Suffice it to say that the reports show that the appellant has a number of handicaps affecting motor function, and a degree of intellectual handicap, attributable to brain damage at birth. His level of mental retardation was considered to be "mild" or "moderate." The psychiatric report noted that "mild intellectual retardation is quite a handicap." He nevertheless could understand right from wrong. He has a long history of unacceptable behavioural problems. He is easily influenced by his peers, and "quick to show off, as a possible means of being part of the group." He has limited literary and mathematical ability, and a short attention span, but nevertheless capable of obtaining employment. His period at the Bindi Centre was spent attempting to improve his life skills to the level where he could obtain employment. Efforts to train him and find employment for him have so far failed. He spent his time wandering the streets day and night, and formed friendships with young men who were also in trouble. Nevertheless it was still felt that with supervision and a structured routine environment with systematic instruction, he could still join the work force.
7. The appellant's sole means of income is an invalid pension of $300 per fortnight. His friends tended to take advantage of him and his money, and to goad him into silly acts. He had only minimal awareness of this. He lacks social skills, and lives an itinerant lifestyle.
8. The author of the pre-sentence report expressed the opinion that he doubted whether the appellant would understand the implications of a supervised bond; a community service order would probably be breached as he had no recognised work ethic; home detention was not an option as he lacked a permanent address; and imprisonment would be counter-productive as it "would serve little purpose other than to create a self-perceived hero image ... and increase his standing with his peers."
9. The learned magistrate, with whom I feel great sympathy, was given a difficult sentencing task.
10. The appellant, through his solicitor, had agreed to make full restitution for the damage to the door. Agreement was reached as to the value of the loss ($1480) which the appellant was repaying at $20 per week by means of a bank authority.

It was submitted by Mr Allen, counsel for the appellant, that a suspended sentence of imprisonment was a last resort before imposing a custodial sentence, and that, bearing in mind the appellant's relatively good prior record, his youth, his intellectual handicap, his immaturity, the fact that he had agreed to make full restitution, and the effect that a sentence of imprisonment, even a suspended sentence of imprisonment, could have on the appellant's future job prospects, the learned magistrate's sentence was manifestly excessive, particularly as the probation and parole officer doubted whether he would understand the implications of a supervised bond. In effect, Mr Allen submitted that a breach of the bond was most likely with the consequence that the appellant could go to prison. Mr Allen submitted that the proper sentence was to impose a fine, and that although the appellant's means were small, as he lived an itinerant lifestyle, he could afford a small fine if given time to pay. Further, it was submitted that a fine would have more impact on the appellant towards rehabilitation than a bond. 12. Counsel for the respondent, Mr Roberts, did not seek to uphold the sentence so far as it related to the charge of assault police, which it was conceded, was a very minor offence, warranting only a fine. Mr Roberts submitted that the learned magistrate's sentence was otherwise in keeping with the Bindi Centre's recommendation that he "needed supervision with a routine environment with systematic instruction to be successful." Whilst I doubt that the kind of supervision available through a probation officer is able to fully meet these criteria, nevertheless there is much sense in this submission. However, if the learned magistrate's sentence in the end is to be thus justified, the same result could be achieved by an order either under s4 or under s5(1) of the Criminal Law (Conditional Release of Offenders) Act. The critical question therefore is whether it has been shown that the learned magistrate erred in imposing a suspended sentence of imprisonment pursuant to s5(1)(b) of the Act. 13. In Wood v Samuels (1974) 8 SASR 465 at 468, Walters J said: "I reject any suggestion that a suspended sentence has been used as a "soft option", or as what might be described as a mere loophole in a case where a Judge has not been quite certain what to do. After all, a sentence of imprisonment, followed by a suspension, remains a sentence of imprisonment (R v O'Keefe (1969) 2 QB 29, per Lord Parker LCJ at 32; Kennedy v Spratt (1972) AC 83 at 91, per Lord Reid); and an offender dealt with in this way will continue to be at risk, during the period of the suspension, of having his suspended sentence reactivated on re-conviction, with the original term unaltered. Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court's clemency. Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided. ... the considerations governing the choice between a custodial sentence and a suspended sentence cannot be identified by any constant ratio. The factors to be taken into account must invariably be different in the particular circumstances of each particular case. But, as I see it, the ultimate questions which the court will have to decide are those postulated in the statement of Lord Parker LCJ in R v O'Keefe at 32, where his Lordship said: "It seems to this Court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, should be: is immediate imprisonment required, or can a suspended sentence be given?"" 14. Given this to be the correct approach, I consider that the learned magistrate ought not have concluded that a suspended sentence was warranted. The appellant is young, with no serious prior convictions, and is intellectually handicapped. As Young CJ observed in R v Mooney (unreported, CCA Victoria, 21/6/78): "General deterrence should often be given little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others." 15. This is to be contrasted with the view of Bray CJ in R v Masolatti (1976) 14 SASR 124-5: "The deterrent effect of punishment, or what we must assume, despite altered conditions of court reporting, to be its deterrent effect, is not limited to its effect on persons of intelligence, responsibility and psychological and physical condition similar to those of the defendant under sentence. The court has to look at the effect generally of its sentences on those minded to commit the crime under consideration, no matter what their motives or their physical or mental state." 16. In my view the sentencing court's first task is to look at the culpability of the offender. A person who is mentally handicapped is often not as culpable as someone of normal intelligence, and in those circumstances, it may be appropriate, having regard to that fact, to give little or no weight to general deterrence. In this case, the material before the learned magistrate showed that the appellant was easily lead by peer pressure, with "minimal awareness" that his peers "goad him into silly acts." The pre-sentence report states: "The options open to Halsey are limited. He either complies with the wishes of his peer group and influence and is taken advantage of, or refuses and has no friends." 17. It is important to recognise also that the appellant had entered into arrangements to make restitution. Clearly this was a mitigating factor. As Brinsden J observed in Mickelberg and Pozzi (1984) 13 A Crim R 365 at 370: "The courts ought to encourage restitution and obviously one way for them to do that is to offer some inducement in the form of a lesser penalty." 18. Although the offence of unlawfully damaging property is a serious one (with a maximum penalty of seven years' imprisonment) the objective circumstances of this offence put the offence very much at the lower end of the scale. Taking into account the other matters which Mr Allen submitted, and correctly submitted in my view, were mitigating circumstances personal to this offender, I consider that the sentence imposed was manifestly excessive and cannot stand. In my opinion the circumstances called for a release upon a bond under s5(1)(a) of the Act and a small fine. Accordingly the appeal is allowed, the sentences are set aside, and in lieu thereof: (a) in relation to the conviction for unlawful damage to property, the appellant will be released upon his own recognizance in the sum of $500 to be of good behaviour for twelve months subject to the following conditions: (i) that the appellant be subject to supervision by a probation officer appointed by the Director of Correctional