AMIRTHALINGAM v Police - [2015] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
AMIRTHALINGAM v POLICE
[2015] SASC 189
Judgment of The Honourable Justice Lovell
3 December 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - PARTICULAR ACTS OR OMISSIONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
The appellant pleaded guilty to one count of aggravated drive without due care.
The appellant was sentenced to a term of 28 days imprisonment and given a period of licence disqualification for six months. At the time of sentence, the appellant had been in immigration detention for approximately eight months, a relevant factor that was not put before the sentencing Magistrate.
The appellant complained that the sentence was manifestly excessive.
Held: Appeal allowed.
1. The failure to have regard to time spent in immigration detention amounted to a process error.
2. The sentence imposed by the learned Magistrate set aside. The appellant is convicted and upon him entering into a bond to be of good behaviour in the sum of $500 for a period of six months there be no penalty. Driver's licence disqualified for six months.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(o), s 11; Road Traffic Act 1961 (SA) s 45, s 45(2)(b); Criminal Law Consolidation Act 1935 (SA) s 19A(3), referred to.
R v Jongewaard [2009] SASC 346; House v The King (1936) 55 CLR 499, applied.
Darter v Diden & Ors [2006] SASC 152; R v Kellegher [2015] SADC 159; R v Niesen [2015] SASCFC 165, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "due care"

AMIRTHALINGAM v POLICE
[2015] SASC 189
Magistrates Appeal: Criminal
LOVELL J:
Overview

On 13 April 2014 the appellant was the driver of a motor vehicle which was involved in a collision. The appellant failed to give way at an intersection and collided with another vehicle. At the time of the collision the appellant had a blood alcohol reading of 0.082 per cent.
The passenger in the car driven by him suffered serious injuries. The appellant was originally charged with causing serious harm by dangerous driving. This is a major indictable offence. The appellant at the time of the accident was on a bridging visa. The visa was cancelled when he was charged and the appellant was then placed in detention.
The charge was eventually withdrawn and a summary charge of aggravated drive without due care substituted. He pleaded guilty and was sentenced for that offence on 22 December 2014. The sentencing Magistrate was told that he was “in immigration detention” at that time but was not told he had been in detention for nearly eight months. The Magistrate sentenced him to 28 days imprisonment suspended upon him entering into a bond to be of good behaviour for nine months. He was also disqualified from holding or obtaining a driver’s licence for a period of six months.
The appellant complains that the sentence imposed was manifestly excessive. Whilst there were a number of grounds of appeal, the major complaint was that the sentencing Magistrate did not take into account the fact that at the time of sentence the appellant had spent almost eight months in detention.
The appellant sought an extension of time within which to appeal The extension was not opposed by the respondent. I therefore allow the extension.
Factual background
On 13 April 2014 at about 2.55 pm, a two-car collision occurred at the intersection of Applebee Road and Port Gawler Road. The appellant was the driver; he was uninjured. Unfortunately, his passenger sustained head and pelvic injuries. The driver of the other vehicle was not injured and returned a blood alcohol test of zero per cent. Major Crash investigators conducted a vehicle examination which revealed that both vehicles had been in reasonable condition prior to the collision. According to the agreed facts, the appellant had a blood alcohol concentration of 0.082 per cent and had failed to give way prior to entering the intersection. There was no suggestion by the police that the appellant was exceeding the speed limit.
As mentioned, at the time of the collision the appellant was on a bridging visa. The appellant was initially charged with causing serious harm by use of a motor vehicle contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). This is a major indictable offence. As a result of that charge the bridging visa of the appellant was cancelled and he was detained by the immigration authorities. Many months later the charge was reviewed and a fresh complaint filed. The appellant was charged with one count of aggravated drive without due care contrary to section 45 of the Road Traffic Act 1961 (SA) (“the RTA Act”). The aggravating circumstance of the offence was that the appellant had a blood alcohol concentration greater than 0.08 per cent. This is a summary offence. Following the appellant’s plea of guilty to the lower charge of aggravated drive without due care; the Director of Public Prosecutions (“DPP”) withdrew the major indictable offence.
On 22 December 2014, the appellant pleaded guilty in the Adelaide Magistrates Court to the offence. He was entitled to up to 30 per cent discount for his early plea. The maximum penalty for an aggravated offence of drive without due care is imprisonment for 12 months and disqualification from holding or obtaining a driver’s licence for a minimum of six months. The learned Magistrate imposed a sentence of 28 days, wholly suspended upon the appellant entering into a $300 bond to be of good behaviour for nine months, and disqualified the appellant’s driver’s licence for the statutory minimum of six months pursuant to section 45(2)(b) of the RTA Act.
The issue in this appeal is whether the sentence imposed by the learned Magistrate was manifestly excessive; in particular, whether the learned Magistrate:
1.failed to appropriately consider section 11 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”);
2.failed to give sufficient weight to the personal circumstances of the appellant; and
3. erred in imposing a sentence of imprisonment.
Personal circumstances
The appellant is currently 25 years old. He is single and has no children. He was born in Sri Lanka. His native language is Tamil. The appellant has no antecedent history in this jurisdiction. Sadly, the appellant has experienced many traumatic events in his life. Whilst living in Sri Lanka his village was bombed by the government and he was injured by the shell blast as a result. He has been a victim of torture and has lost family members as a result of the civil war. In 2012, the appellant managed to flee Sri Lanka and came to Australia as a refugee. He spent some time in immigration detention before being released on a bridging visa. He suffers from anxiety, depression and post-traumatic stress disorder as a result of his experiences in Sri Lanka.
Submissions before the Magistrate
The learned Magistrate referred to the circumstances of the offending; namely the appellant’s blood alcohol level and his failure to give way at the intersection. The learned Magistrate also considered the appellant’s personal circumstances to which I have earlier referred. His Honour also noted that the appellant continues to have the support of the victim, who it was submitted through counsel, considers the appellant to be a safe driver. The learned Magistrate also took into consideration the fact that the appellant had a driving job in Sri Lanka. The appellant had no prior convictions.
I have reviewed the submissions made by counsel for the appellant before the Magistrate. The submissions set out in some detail the personal circumstances of the appellant. An agreed factual summary was tendered. Whilst counsel mentioned that the appellant’s bridging visa had been cancelled he did not address the issue of how long the appellant had been in detention. Further, he did not address the circumstances in which the original charge had been withdrawn and a lesser offence charged. While the fact of a change of charge would have been known to the Magistrate, there were no submissions directed to whether his bridging visa would have been cancelled if a summary offence had been originally charged.
The Magistrate proceeded to sentence upon the completion of the submissions. His reasons are comprehensive and deal appropriately with all the matters that had been addressed before him. His Honour moved straight from submissions to sentence which no doubt reflects his busy list. However, his reasons show that he did not deal with the matters mentioned above, no doubt because they were not drawn to his attention.
Discussion
The offending and subsequent charge has led the appellant to be placed into immigration detention. The appellant’s bridging visa had been cancelled. He has applied for a protection visa and is at risk of being deported.
The Magistrate could not take into account the appellant’s future status as a refugee. On appeal, Mr Armstrong for the appellant submitted however, that the time spent by the appellant in immigration detention up until the time of sentence was a highly relevant factor.[1] He submitted that this factor was not properly canvassed before the learned Magistrate and the Magistrate did not specifically address it. Mr Wright, counsel for the respondent, agreed that this was an appropriate case where time spent in immigration detention was a relevant factor for the purposes of section 10(1)(o) of the Sentencing Act.
[1] Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(o).
In further written submissions, counsel helpfully referred me to the recent authorities where periods of immigration detention could be taken into account in sentencing for offences.[2] I note here that at the time of sentence, the appellant had spent some eight months in immigration detention.
[2] Darter v Diden & Ors [2006] SASC 152; R v Kellegher [2015] SADC 159.
In my view, this was a case where time spent in immigration detention was a highly relevant factor. The learned Magistrate when fixing the sentence did not take this factor into account.
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[3] where Doyle CJ said:[4]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[3] [2009] SASC 346.
[4] [2009] SASC 346 [40].
As was stated in R v Niesen[5] a court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[6] does the appeal court have the power to quash the sentence passed below. If the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the appeal court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous matters (a process error), the court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[5] [2015] SASCFC 165.
[6] (1936) 55 CLR 499.
In my view, the failure to take into account the time the appellant had spent in detention up to the time of sentencing amounted to a process error. As a result, the sentencing discretion has miscarried and the appellant will be re-sentenced.
Re-sentence
Mr Armstrong, whilst acknowledging the effect of the blood alcohol reading, still submitted that the offending was towards the lower end of the scale for this type of offending. However, he stressed the fact that the appellant has now been in detention for around 19 months. Mr Wright conceded that it is unknown whether the appellant’s visa would have been cancelled had the summary offence been charged initially rather than a major indictable offence. The period in detention is clearly a factor to which I can have regard.
Taking his personal circumstances into account and the fact that the appellant has now been in detention for about 19 months, in my view this matter can be appropriately dealt with pursuant to section 39 of the Sentencing Act. The offending is serious enough to warrant a conviction being recorded.
I would set aside the sentence imposed by the Magistrate. I order that pursuant to section 39 of the Sentencing Act the appellant be convicted and that, upon him entering into a bond to be of good behaviour in the sum of $500 for a period of six months, there be no penalty. Like the Magistrate, I impose a disqualification of his driver’s licence for a period of six months.
During the course of submissions, Mr Armstrong referred to the Magistrate’s remarks that indicated the Magistrate could not impose a fine nor order community service as the appellant was in detention. They were of course practical matters that faced the Magistrate.
When, as here, a court cannot have regard to what may happen to a defendant’s detention and visa status, the question arises as to whether a court should disregard sentencing options simply due to that detention. Whether the fact of detention (as opposed to custody) can limit a judicial officer’s sentencing discretion in that way raises an interesting question, but I do not need to decide it to dispose of this appeal.
Order
I set aside the sentence imposed by the Magistrate. I order that pursuant to section 39 of the Sentencing Act the appellant be convicted and that upon him entering into a bond to be of good behaviour in the sum of $500 for a period of six months, there be no penalty. I disqualify the appellant from holding or obtaining a driver’s licence for a period of six months.