Hubbard v Police [2023] SASC 182 (22 December 2023) was an ‘ambitious’ appeal by Mr Hubbard alleging his sentence of 10 months gaol, suspended after six months followed by a two year good behaviour bond was ‘manifestly excessive’.  He had been convicted of numerous offences including two counts of assaulting a prescribed emergency worker (one police officer, one paramedic), ill-treatment of an animal, damaging a motor vehicle, carrying an offensive weapon (a hammer) and two counts of breach of bail ([2]).

The offending

On 23 February 2022 the appellant, Mr Hubbard, had an argument with his partner. He smashed the rear window of her car with a hammer and was later detained with the hammer. This was the basis of the charges of damaging the vehicle and carrying an offensive weapon.

The breach of bail allegations related to failure to comply with the bail conditions on two separate occasions between February and March 2022. He failed to report to police when he was required to do so, and he attended premises that he had been directed to avoid.

On 6 February 2023, in another argument with his partner, he took her rabbit from a cage and holding its hind legs he hit her with it, using such force as to kill the rabbit.

With respect to the assaults on the emergency workers (at [8]):

On 26 February 2022, the appellant assaulted a prescribed emergency worker.  On that day, two paramedics were tasked to assist the appellant following a report that he may have injured himself.  After arguing with the first paramedic who was trying to assist him, the appellant left the scene before returning and pushing the other paramedic, the victim, with enough force to knock him back into the ambulance.  While being restrained, the appellant punched the victim to the jaw and chin area.

The other assault occurred on 6 February 2023 when police attended the dispute that ultimately involved the death of the rabbit. The incident is described at [10]:

The police attended and the appellant was arrested.  After being observed headbutting the wall, the appellant was placed in a padded cell before being conveyed to the Lyell McEwin Hospital for an assessment.  While there, the appellant threatened police and acted aggressively.  While being restrained, he kicked a police officer to the right side of his face with such force as to cause blurry vision and significant pain.

The impact on the victims was set out at [11]-[12]:

Each victim of the assaults provided a victim impact statement.  The paramedic described suffering headaches, back and hip pain, and being unable to eat properly for a number of days after the assault.  He is a paramedic with 20 years’ experience who has been left worried about his ‘ability to safely continue in the profession [he] loves’.  In his statement, he describes the ‘worrying impact’ the assault had upon he and his wife who is also a paramedic and was on duty that night.  The attack was unprovoked, violent and targeted, occurring while the victim was speaking into his radio.  It has caused the victim ongoing anxiety in the workplace and to question his ability to work alone if necessary due to the failure of risk mitigation strategies and de-escalation tactics that are relied upon.

The second assault had a significant effect upon that victim.  The kick left him with blurry vision and significant pain and shock.  He was embarrassed by the fact that hospital staff and members of the public saw him being assaulted.  He experiences ongoing injuries in his neck and back similar to whiplash.  He has been unable to engage in physical play with his young daughter which has caused him to feel angry and bitter.  This has placed pressure on his relationship with his family.

These offences took place over a year. Prior to the first of these the 19-year-old offender had no prior criminal record ([13]). He was at the time of offending, homeless. He was a drug user with no employment history. At [15]:

The appellant first had contact with mental health services when he was 14.  In the opinion of Ms Henrich [a clinical psychologist], the appellant meets the criteria for a borderline personality disorder and a post‑traumatic stress disorder in relation to his experiences of trauma during his childhood.  Ms Heinrich also opined that the greatest risk factor for the appellant re‑offending was his mental health and that treatment was more likely to be effective in the community than in custody.  At the time of sentence, the appellant had been assessed for the ‘Abuse Prevention Program’ and the Magistrate was told that the appellant would commence that program if accepted.

The sentencing magistrate gave a single sentence (rather than a sentence for each offence). She started with the view that the appropriate sentence was 2 years imprisonment. She then applied a 40% discount for the guilty plea on one offence and 30% for the others reducing the sentence to 17 months. The Magistrate also took into account that the prisoner had entered plea of guilty thereby acknowledging his guilt and saving the state and the witnesses the need to bring evidence to prove his guilt. By virtue of the Sentencing Act 2017 (SA) this entitled him to a 30% on the sentence that the magistrate would have imposed if he had been found guilty after a trial ([18]). (There is value in an early plea so every jurisdiction provides for a ‘discount’ for a plea but that does put pressure on people to plead guilty, even if they are not.)

Taking into account the six months and 19 days already served in custody or home detention, she imposed a sentence of 10 months imprisonment. Six months would be served in full time custody, the balance could be suspended upon the prisoner entering into a two year good behaviour bond.  (The point of ‘suspending’ some of the sentence, as with parole for longer sentences, is to give the prisoner the promise of a reward for good behaviour in prison and to allow his release on conditions which, if breached, can see him go straight back to prison. Without those options a prisoner must simply be released into the community at the end of his or her sentence.)

The appellant appealed to the Supreme Court. Justice Kimber did think the Magistrate had made some errors in the calculation of the sentence, and in particular in the level of discount to be applied for the guilty pleas, but these errors were not argued on appeal and further they benefited the appellant ie the Magistrate gave a larger discount than she should have.

As for the claim that the sentence was ‘manifestly excessive’ the court said (at [40]):

It is not sufficient for an appellate Court to merely conclude that it would have come to a different decision from that reached by the Magistrate, or that the sentence imposed is markedly different from the sentences imposed in other cases. For a sentence to be manifestly excessive, it must be established that the Magistrate came to a decision that was unreasonable or plainly unjust, or that a specific error was made. To put this another way, absent specific error, the sentence must be ‘outside the permissible range of sentences for the offender and the offence’ before an appellate Court may intervene.

The appellant argued (at [43) that he was entitled to leniency because of:

… his lack of previous convictions; that he had not been in custody before his remand for the offences; the time in custody of about two months and three weeks; that he had gained insight; his mental health issues at the time of the offences; the subsequent diagnoses and treatment; the availability of support and accommodation; and his partner being about five weeks’ pregnant at the time of sentence … and the opinion of Ms Heinrich that treatment was much more likely to improve his mental health in the community than in custody.

With respect to the assaults on the emergency workers, the court said (at [49]):

The circumstances of the appellant in favour of leniency had to be balanced with the seriousness of the offending.  Some offences were serious examples of the offence.  The two assaults are summarised above.  The maximum penalty for each offence was five years.  As the Chief Justice observed in Stenecker v Police, ‘the community has through Parliament, expressed its concern that condign punishment be imposed for assaults on police officers and other persons who put themselves at risk of violence in the course of the execution of their important public duties’.  General deterrence was a particularly important consideration and its significance was not diminished due to the mental health of the appellant.  Each assault resulted in ongoing harm…

The court concluded (at [50] and [52]):

In all the circumstances, notwithstanding the matters emphasised by the appellant, a single sentence of ten months, after the reductions for the pleas of guilty and time in custody and on home detention, was not manifestly excessive…

… a sentence of 10 months was proportionate for the offences and this appellant.  It was not a crushing sentence.  

The appellant argued that the entire sentence should have been suspended. The sentencing magistrate had said:

I must consider whether there are good reasons to suspend your term of imprisonment.  Your age, your background and your mental health challenges are good reason to partially suspend your sentence of imprisonment.  I am of the view you will benefit from support and assistance in the community.  However, it is important to send a message to you and the community that the violence you have displayed and the harm you have caused will not be tolerated.  In my view, this means you must spend some time of your sentence in custody.  I am ordering that you serve six months in custody commencing today.  I suspend the remaining four months of your custody on a $500, two year good behaviour bond.  Under the good behaviour bond, you are to follow the lawful directions of Community Corrections and undertake such assessment and treatment as they order.

The appeal court found no error in the Magistrate’s decision.

All grounds of appeal were dismissed.

Discussion

Minds will differ on what might be an appropriate sentence. That is the point Kimber J was making when he said that it was not sufficient for judges on appeal to think they may have imposed a different sentence, rather an appellant must show a legal error by the sentencing magistrate or judge.  The issue of whether to suspend the sentence, and how much to suspend were matters for the Magistrate. There was no formula and she had to weigh up many factors. Having done that she decided to suspend four of the 10 months and that was within the range open to her.

One also has to consider that the sentence was not ‘six months imprisonment’.  It was six months on top of the six months and 19 days already spent in custody and home detention.  It will also be followed by two years of having to report to and be accountable to correction authorities who can compel him to undergo treatment and otherwise comply with directions as to his behaviour.

No amount of gaol time will actually undo the harm done to the victims. Sentencing is not designed to find the ‘price’ of the harm done.  The offender’s criminality is the same whether the victims are traumatised by the event or can brush it off. However, the level of aggression or violence are indeed aggravating factors and the fact that there are long term effects suggests that more force was used – more violence inflicted – than in cases where there are no consequences.

Finally, despite claims of general deterrence, sentencing does little to discourage future offenders. The next drug affected, homeless 19yo with PTSD is unlikely to stop and decide not to assault a police officer or paramedic because Mr Hubbard went to gaol for six months or six years.

But these were serious offences – directed not only to the emergency workers but also to his victim.  Mr Hubbard be under effective sentence and control with associate deprivation of his liberty for a total of three years (ie six months custody and home detention prior to sentence, six months full time custody and two years supervised liberty in the community). That is not an insignificant sentence. Prison is an inadequate safety net for the mental health service so hopefully Ms Heinrich is correct and treatment in the community will do more to improve his mental health than any treatment in custody. Equally, hopefully, he has gained insight into his behaviour and its affects and with both direction and support he may seek to get on top of his behavioural problems.

Judges do not send people to prison lightly so the recognition that some of this sentence for a young first offender must be spent in full time custody should give some comfort that courts do take these offences seriously.  An effective sentence of restricted liberty for three years for a 19yo first offender is indeed a significant sentence.

The bigger concern to me is the delay. The first assault occurred on 26 February 2022, the second on 6 February 2023. Even though he had been charged in February 2022 (which we know, because he breached his bail in February and March 2022) he did not enter guilty pleas to any of the offences until 26 June 2023 ([24]). He was sentenced on 24 August 2023 ([54]). It follows that he served the 6 months and 19 days in custody/home detention from 6 February to 24 August inclusive. What we don’t know is what was happening with the legal process, and his care, between 26 February 2022 and 6 February 2023. Given the legal system could deal with him in six months, one wonders what might have happened if it had been able to deal with him in six months after the first offending ie by August 2022? If he’d been able to get treatment and if the process had given him ‘insight’ then perhaps the police officer, the victim’s partner and the rabbit may all have been spared.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.