INGOMAR v POLICE No. SCGRG-98-1145 Judgment No. S6875 [1998] SASC 6875

For the assault occasioning actual bodily harm the learned sentencing magistrate imposed a term of four months imprisonment.

On the counts of assaulting police officers in the execution of their duty and resisting arrest, pursuant to s18A of the Criminal Law (Sentencing) Act 1988, the learned sentencing magistrate imposed one sentence, namely a further sentence of four months cumulative on the first sentence.

On the charge of damaging a motor vehicle the appellant was sentenced to two months imprisonment to be served cumulatively on the other sentences.

On the charge of damaging a front door he was convicted without penalty.

In the result there was a total head sentence of 10 months imprisonment which was directed to commence on 27 July 1998, being the date upon which the appellant was arrested on the property damage counts.

The appellant is a young tribal Aboriginal from the Yalata community. He is aged 21 years.

The victim of the aggravated assault charge, that is assault occasioning actual bodily harm, was another resident of the Aboriginal community at Yalata.

According to the affidavit of the police prosecutor, late in the afternoon the victim was at the Nundroo Roadhouse Hotel having a few drinks with other community residents, when he was approached by the appellant. The appellant for no apparent reason struck a heavy blow with a clenched right fist to the victim's mouth. The impact was of such force that it not only knocked the victim to the ground but it caused his front teeth to pierce his top lip. Later the victim received about four stitches to the top lip. At the time the matter was being dealt with in the court below, which was about six months after that assault, he was still suffering from pain in the mouth, sore teeth and gums.

About an hour and half after the assault, police officers attended at the hotel in an endeavour to locate the appellant. He was found sitting in a utility on a scrub track near the hotel. He appeared to be intoxicated and became loud and abusive towards the officers. Attempts to calm him down failed, and he subsequently slammed the door of the utility shut, in the process collecting a police officer's left thigh, causing sharp pain. Other police officers then opened the door of the utility and managed to drag the appellant out of it. As they did so, the appellant kicked at the police with his boots. Eventually, after a further struggle, the appellant was handcuffed and placed in a van.

The police officer whose thigh was slammed in the door received an elongated bruise on the left-outer thigh, and in the subsequent removal of the appellant into the van, received bruises and some skin missing on the shins of both his legs. Another police officer received bruises and injuries to his shins.

The appellant refused to be interviewed and demanded his lawyer.

So far as the offences committed in July 1998 are concerned, namely the causing damage counts, these were committed at Yalata. The appellant caused about $3,000 damage to a sedan motor car parked outside the house of another Yalata resident, whom I have been informed was his former de facto wife. He did so by smashing the windscreen and laying into the body work of the car with either a broomstick or a steel bar.

On the same occasion, when the same lady refused to let the appellant into the house, he hit the front door, causing dents in it but without gaining entry.

Following his apprehension on the same day, the appellant made full admissions during the course of a video interview.

The appellant has a prior record of convictions. These include convictions for assaulting and resisting police and damaging property.

During the course of his sentencing remarks, the learned sentencing magistrate observed:

"Unfortunately, there is no option really but to send the defendant to prison for these offences. They are serious assaults on people and police. I don't know what the future will bring for this defendant but he's obviously got to moderate his drinking and that in turn, I'm sure, will moderate his behaviour."

In the notice of appeal the appellant complains that the effect of the accumulation of the sentences was to constitute an overall head sentence which was crushing, bearing in mind the appellant's youth, and that the learned sentencing magistrate failed properly to take into account the principle of totality.

The appellant further complains that the learned magistrate:

"Erred in allowing extraneous or irrelevant matters to affect his decision, namely his subjective opinion that Mr Ingomar would not stop drinking alcohol and by implication would commit further offences."

I do not mention further that ground of appeal, as it does not stand analysis against the observations made by the learned magistrate in the passage from his sentencing remarks which I have just quoted.

During the hearing of the appeal Mr Sykes who appeared for the appellant put at the forefront of his argument a further criticism of the learned sentencing magistrate, namely that he had failed to take into account sufficiently the appellant's cultural background and the disadvantaged circumstances in which he and other tribal Aborigines lived in the Yalata community. Indeed, most of the argument advanced by Mr Sykes was directed to that aspect of the matter.

However, before developing his submissions as to the appellant's aboriginality, Mr Sykes drew attention to the decision of Bray CJ in Hallion v Samuels[1]

. That case is authority for the proposition that where a defendant is charged with resisting a police officer in the execution of his or her duty and also with assaulting a police officer in the execution of his or her duty, and the acts said to constitute the resistance are the same as the acts said to constitute the assault, a conviction on one charge is a bar to a conviction on the other.[2]

24 The proper course to take in these circumstances is to vacate the conviction for count four on the information, that is, resisting the police officers in the execution of their duty. That would leave the appellant convicted on the two assault counts as against the two police officers.

25 The question then becomes whether any ground has been made out to interfere with the sentence of four months imprisonment imposed on those two counts.

26 There is the question of the disadvantaged circumstances of the appellant stemming from his situation at Yalata, the fact that he is a young tribal Aboriginal, the fact that a prison sentence is more likely to impact more heavily on him than might be the case with defendants not suffering from that disadvantage and that background, and the fact that his drinking problem is an expression of that situation of economic and cultural disadvantage. Mr Sykes urged that I allow him to obtain more background information, as to these matters, either specifically to do with the circumstances of the appellant or of a more general kind.

27 I declined to give him that opportunity, as it seems to me that the courts in this country have already had long experience in dealing with Aborigines and in sentencing them. There is no reason to think that even although he did not refer to such factors in his sentencing remarks, the experienced sentencing magistrate in this case, sitting as he was at Port Augusta, was not well aware of those matters. It is of course another question whether or not it may fairly be said that having regard to those matters, the overall sentence which he imposed was excessive.

28 In his helpful and thorough submissions, Mr Sykes referred to a number of authorities touching on the special position of Aborigines who come forward in the criminal justice system. He referred to Houghagen v Charra and Ors[3], and in particular the observations made by Bollen J in that case[4]; where he observed:

"One cannot, in my opinion, as a general rule, impose the same penalties, at least for some offences, on tribal Aborigines living at Yalata, with no advantages in their life or background, as one would impose on a person living a comfortable life in the suburbs."

"I think that one must remember the effect of prison on a tribal Aboriginal."

Mr Sykes also referred to the decision of the Court of Criminal Appeal of Western Australia in Juli[6]

. In particular, he referred to the observation of Malcolm CJ in that case, in which he repeated dicta which he had given in Rogers v Murray and Anor[7], where he observed:

"It is a notorious fact that the increased use of alcohol by Aboriginal persons in relatively recent times has caused grave social problems, including problems of violence, in the communities in which they live. The general circumstances which have led to problems associated with the consumption of alcohol may themselves provide circumstances of mitigation ..."

To much the same effect was the dictum of Wood J in Fernando[8]:

"It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment."

So that there is a considerable body of authority borne out of the experience of the courts, pursuant to which the courts are prepared to recognise as a mitigating circumstance, the disadvantageous position of Aboriginal persons with respect to the criminal justice system. In particular the allowance which must be made with respect to offences of violence which are a product of abuse of alcohol which so often accompanies their existence, living as they are in economically deprived circumstances.

It is equally clear from the authorities that the effect of imprisonment upon an Aboriginal person is a matter to be taken into account whenever imprisonment is being considered as a sentencing option.

Although, as I have said, Mr Sykes sought an opportunity to put further material before me with respect to those aspects of the matter, I declined to do so because the courts have long recognised the importance of those factors in sentencing of Aborigines. I am prepared to take judicial notice of them for present purposes. I assume in the first place, that the appellant has an alcohol problem which is a product, at least in part, of the deprived circumstances in which he lives at Yalata, and further that imprisonment will have a greater impact upon him than would be the case for non-Aboriginal defendants.

At the end of the day, bearing those factors in mind, the question arises whether or not the appellant has established that the overall sentencing package of 10 months imprisonment is manifestly excessive. In approaching that question it is necessary for me to have regard to the fact that, as I have indicated, I think it proper to vacate the conviction on the charge of resisting arrest.

There is a further adjustment to be made which I have not so far referred to.

At the time of the offence committed on 11 December 1997, the appellant was on parole, having been released from a term of imprisonment imposed for unrelated matters. There were 17 days left of the sentence, that is, the unexpired term of the sentence as at 11 December was 17 days.

Shortly afterwards, on 15 December 1997 the Parole Board exercising their powers under the Correctional Services Act, issued a warrant for his arrest. In consequence of his arrest under that warrant and pursuant to s74 of the Correctional Services Act 1982, he was imprisoned for 16 days, leaving one day of the unexpired portion of the sentence upon which he had been released on parole.

Given that the offence of 11 December 1997 was committed while the appellant was on parole, s75 of the Correctional Services Act was of application. This obliged the court, when the appellant was sentenced in July 1998 on the offences now in question, in the first place not to backdate the sentence, and in the second place, to make whatever sentence of imprisonment was imposed cumulative on the unexpired balance of the sentence upon which he was on parole at the time the offence was committed.

Ms Ryan did not, however, suggest that the section should be applied literally, but that credit should be given for the 16 days served under the warrant. So that the proper course for the sentencing magistrate to have taken in this case was to recognise that the appellant would serve one day's imprisonment as the unexpired balance of the sentence on which he had been on parole, and then serve the sentence of 10 months which he was imposing. It was not open to him, as he did, to backdate the sentence, even although he backdated it by only four days.

He did not take the course required of him by s75 because he was not made aware of the fact that the December 1997 offences were committed while the appellant was on parole, so that no criticism can be made of the learned sentencing magistrate in that respect. The fact remains, however, that I must now give appropriate application to s75.

In all the circumstances it seems appropriate for me to deal with the matter on the footing, that although no error appears manifest in the sentencing remarks of the learned sentencing magistrate, he must be regarded as having proceeded in error in imposing the sentence which he did in the first place, because of the doubling of the resist arrest conviction with the two counts of assault of police and because of the technical failure to apply s.75. In those circumstances I think that the proper course is to reconsider the sentence afresh.

The assault occasioning actual bodily harm was, for the reasons which I have indicated, a serious one. Furthermore, the offence of assaulting police officers in the execution of their duties, was likewise a serious offence. The damage to the car was extensive.

Against those observations, however, every allowance must be made for the comparative youth of the appellant. Although he has some criminal record, it is not extensive. And the factors associated with his Aboriginal descent, more particularly the alcoholism which has blighted his existence must be accorded appropriate weight. There is no question but that both of these offences were committed while the appellant was very much under the influence of liquor.

In ordinary circumstances that does not afford an excuse, but in the case of this appellant it may warrant allowance as a circumstance of mitigation.

In all the circumstances, I think that the justice of this case will be met if I was to leave the three sentences of imprisonment, that is the two sentences of four months and the sentence of two months' imprisonment intact, but direct that the sentences for the two assaults on police officers in the execution of their duty of four months be served concurrently with the other sentences, which between themselves will be cumulative. The total will then amount to six months.

In the result I would allow the appeal for the purpose of effecting that change to the sentencing package, and to direct that the reduced sentence of six months be served from the expiration of the one day which the appellant must serve as from 31 July 1998, being the balance unexpired of the sentence upon which he had been released on parole when the offences of 11 December 1997 were committed.

I order the respondent to pay the appellant's costs of and incident to the appeal, which I fix at $150 plus filing fee.

(1978) 17 SASR 558

[3] (1988) 50 SASR 419

[6] (1990) 50 A Crim R 31 at 36

[7] (1989) 44 A Crim R 301 at 305

[8] (1992) 76 A Crim R 58 at 62

[9] (unreported) 20 August 1998 Judgment No. S6786.2