Baiton v Director of Public Prosecutions (SA)

[2022] SASCA 145

Supreme Court of South Australia

(Court of Appeal: Criminal)

BAITON v DIRECTOR OF PUBLIC PROSECUTIONS (SA)

[2022] SASCA 145

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice David)

13 December 2022

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS

The appellant was sentenced in the District Court for a number of offences, including one count of driving whilst disqualified. 

The appellant appealed against sentence on the basis that the two year sentence imposed for driving while disqualified was manifestly excessive. 

The Court, delivering its judgment ex tempore (allowing the appeal) held:

1.      The sentence imposed for driving whilst disqualified was manifestly excessive.

2.      The sentence is set aside and the appellant will be resentenced in the District Court.

Motor Vehicles Act 1959 (SA) s 91, referred to.
Police v Chilton (2014) 120 SASR 32; Police v Nissen (2014) 120 SASR 50; Police v Cadd (1997) 69 SASR 150; Measures v R [2021] SASCA 82, considered.

BAITON v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2022] SASCA 145

Court of Appeal – Criminal: Livesey P and David JA

THE COURT: 

Introduction

1. On 5 September 2022, the appellant was sentenced in the District Court for having breached three good behaviour bonds as well as for further offending, which included one count of driving whilst under disqualification or a suspension. 

2. This was a subsequent offence for which the maximum penalty was two years’ imprisonment under s 91(5) of the Motor Vehicles Act 1959 (SA).

   The sentence imposed

3. The sentencing judge addressed the appellant’s offending in the following way:

Count	Offence	Date	Maximum penalty	Sentence imposed	Reduction for plea	Notional sentence
1	Driving whilst disqualified	9 February 2021	Two years imprisonment[1]	Two years	30%	One year, four months and 25 days
2	Stating false personal details	9 February 2021	Three months imprisonment or a $1,250 fine[2]	Seven days	30%	Five days
3	Theft	11-12 May 2021	10 years imprisonment[3]	Eight months	30%	Five months and 19 days
4	Theft	11 May 2021	10 years imprisonment	Six months	30%	Four months and seven days (to be served concurrently with the other theft)
5	False information to second hand dealer	12 May 2021	$10,000 fine[4]	Conviction without further penalty	30%	-
6	Carrying an offensive weapon	14 May 2021	Six months or a $2,500 fine[5]	21 days	30%	15 days
7	Stating false personal details	26 May 2021	Three months imprisonment or a $1,250 fine[6]	Conviction without further penalty	30%	-
8	Possessing controlled drug	26 May 2021	Two years imprisonment and/or a $2,500 fine[7]	Conviction without further penalty	30%	-
9	Possessing equipment for use with a controlled drug	26 May 2021	Two years imprisonment and/or a $2,500 fine[8]	Conviction without further penalty	30%	-

[1]     Motor Vehicles Act 1959 (SA), s 91(5).

[2]     Summary Offences Act 1953 (SA), s 74A(3)(b)(ii).

[3]     Criminal Law Consolidation Act 1935 (SA), s 134.

[4]     Second-Hand Dealers and Pawnbrokers Act 1996 (SA), s 22.

[5]     Summary Offences Act 1953 (SA), s 21C(1).

[6]     Summary Offences Act 1953 (SA), s 74A(3)(b).

[7]     Controlled Substances Act 1984 (SA), s 33L(1)(a).

[8]     Controlled Substances Act 1984 (SA), s 33L(1)(c).

1. Together with the suspended sentences which were revoked, and after allowance for time spent on home detention, the sentencing judge imposed a head sentence of three years, one month and seven days.  His Honour fixed a non-parole period of one year, six months and 26 days. 

2. Having regard to the appellant’s personal circumstances, which included a tumultuous life with episodes of domestic violence, homelessness and only recently diagnosed mental illness, the sentencing judge found that it was appropriate to order that the sentence be served on home detention.

   The appeal – imposition of the maximum penalty

3. By Notice of Appeal dated 17 October 2022, the appellant contends that the sentence for the offence of driving whilst disqualified was manifestly excessive, with the result that the overall sentence was manifestly excessive.

4. At the callover last week, the prosecution did not oppose an extension of time and conceded the appeal.  Although the prosecution mooted a cross-appeal, following brief submission today that has not been pressed and it is unnecessary to rule on it. 

   Determination of the appeal

5. We have considered the materials before the sentencing judge, together with his careful and detailed sentencing remarks. 

6. We are satisfied that the sentence imposed for the offence of driving whilst disqualified is manifestly excessive.[9] The sentencing judge started with a sentence of two years, being the maximum penalty. The imposition of the maximum penalty is reserved for the worst example of offending of the kind prescribed by the offence. The Director was, with respect, correct to concede that the appellant's offending did not fall into the worst category of offending of the kind captured by s 91(5) of the Motor Vehicles Act 1959 (SA). We are satisfied that the sentence did not pay sufficient regard to the sentencing guidance provided by Police v Cadd and the cases which have followed it.[10]

   [9]     Cf, Police v Chilton (2014) 120 SASR 32; Police v Nissen (2014) 120 SASR 50.

   [10]   Police v Cadd (1997) 69 SASR 150. See also Police (SA) v Chilton (2014) 120 SASR 32; Police (SA) v Nissen (2014) 120 SASR 50.

7. Although each case must turn on its particular facts and circumstances, a sentence of imprisonment in the order of between one and three months may have been appropriate in connection with offending of this kind, even allowing for the circumstances of dishonesty associated with giving a false name when the appellant was stopped by police. 

8. Whether home detention or suspension are open to be considered will inevitably depend on the particular facts and circumstances of the offending and the offender in contemplation.[11] 

   [11]   This was recently explained in Measures v R [2021] SASCA 82, [17]-[25] (Livesey and Bleby JJA).

9. A material error in one constituent element of the sentence will usually call into question the whole sentence.  We are satisfied that the sentence which was ultimately imposed is manifestly excessive.  It follows that the sentence must be set aside.

10. Whilst the Director by the cross-appeal submitted that the home detention order could not be imposed where a bond was revoked and the term of imprisonment relating to it is to be served, it is not necessary to rule on that cross-appeal.  Whether and to what extent that principle applies will turn in part at least on the periods of imprisonment in contemplation.  Here, the order for home detention related to new offending as well as to the revocation of a bond imposed in connection with earlier offending.

    Conclusion

11. The orders of the court are:

    1.The appeal is allowed.

    2.The sentence imposed in the District Court on 5 September 2022 is set aside.

    3.The appellant is to be remitted to the District Court for resentence.