Barnes v Police - [2006] SASC 295

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BARNES v POLICE
[2006] SASC 295
Judgment of The Honourable Justice Gray
28 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against decision of magistrate not to exercise discretion to suspend sentence of imprisonment imposed in respect of charge of drive whilst disqualified - appeal on grounds that when sentencing, magistrate had had regard to two irrelevant considerations - Held - appeal allowed - sentence imposed by magistrate set aside - appellant re-sentenced to six weeks' imprisonment suspended upon his entry into bond to be of good behaviour for two years.
Motor Vehicles Act 1959 (SA) s 91, referred to.
Police v Maxwell (1998) 102 ACrimR 374; Crafter v Police [2001] SASC 316; Duncan v R (1983) 47 ALR 746 at 749; R v Van Der Horst [2006] SASC 243, considered.

BARNES v POLICE
[2006] SASC 295
GRAY J:

This is an appeal against a sentence imposed by a Magistrate for the offence of driving whilst disqualified contrary to section 91 of the Motor Vehicles Act 1959 (SA). This offence occurred on 10 August 2004.
Background
On 5 July 2006, the appellant, Todd Trevor Barnes, pleaded guilty to the offences of theft, driving whilst disqualified, driving with excess blood alcohol and failing to wear a seat belt properly adjusted and fastened. On 31 July 2006, the appellant was sentenced in respect of all of the offending.
This appeal is concerned only with the charge of driving whilst disqualified and the sentence imposed in respect of that charge.
On 10 August 2004 at approximately 6.20 pm, the appellant was apprehended whilst driving on Main South Road at Darlington. He was not wearing a seat belt. His driver’s licence had been disqualified for the period 24 October 2001 to 23 January 2006. The appellant submitted to a breath analysis test for which a result of 0.102 grams in a hundred millilitres of blood was obtained. The appellant was aware that he was disqualified from driving and had no reason for not wearing his seat belt.
The magistrate summarised the submissions put by counsel for the appellant as to the circumstances leading to the offending:
... It was put to me that you had been drinking heavily, that you had an argument with your partner, that you then went to the local shops where you were assaulted. You returned home. You were again drinking. You were on ADHD medication at the time. You were not thinking straight and you therefore drove your vehicle. In relation to the theft charge, it was said that you had some money but you were on limited income hence the reason why you stole the items of food.
The history of this matter is intertwined with another charge of driving whilst disqualified. On 25 July 2004, 17 days prior to the commission of the drive disqualified charge the subject of this appeal, the appellant committed an offence of drive disqualified. This earlier offending was finalised in the Christies Beach Magistrates Court on 7 December 2004, within six months of the date of the offending. The appellant was sentenced to one month’s imprisonment, which was suspended upon entering into a bond to be of good behaviour for 18 months. The appellant successfully complied with the terms of his bond, which had expired by the date of the hearing of this appeal.
The complaint in respect of the offending the subject of this appeal was laid on 7 December 2004, the same day on which the appellant appeared in relation to the earlier charge. This complaint did not come before the court until 19 January 2005, and the appellant did not appear before the court in relation to the subject charges until 22 November 2005. The appellant was not sentenced in respect of the subject offending until 31 July 2006, some two years after the commission of the offences.
Criminal antecedents
The appellant has significant criminal antecedents. These include, a history of driving offences, including convictions for driving with excess blood alcohol or driving under the influence. He has three prior convictions for driving whilst disqualified. He has previously breached good behaviour bonds. He has served a period of imprisonment in relation to charges of driving with excess blood alcohol concentration and driving whilst disqualified.
In addition, as earlier observed, on 7 December 2004, the appellant was sentenced in respect of a charge of driving whilst disqualified, committed on 25 July 2004, to a suspended term of imprisonment. The appellant complied with the terms of an 18-month good behaviour bond.
Personal circumstances
The sentencing magistrate had regard to the appellant’s personal background, to a psychological report prepared on 2 May 2006 and to a report from a support worker with the Personal Support Program run by the Department of Employment and Workplace Relations, which the appellant had been involved in for some seven months as at the date of the report.
The magistrate summarised of the appellant’s personal background and circumstances:
You are 28 years of age, a father who has regular contact with two children. You had a dysfunctional childhood. Your schooling was interrupted because of the ADHD and you did not attain high levels of education. Issues of depression and suicide form part of your background. You have been drinking heavily since an early age and you have abused drugs and the report suggests that you are still using cannabis. One of the reports suggests that your alcohol intake has been kerbed but the psychological report indicates that there is an issue relating to continuing alcohol dependency, at the time of the report at least it being reported that there was daily drinking and an inability to stop over a period of time. I therefore assess that there is a moderate risk of re-offending in view of the continuing alcohol intake.
You have been on the Personal Support Programme and significant efforts have been made in this regard. You have received treatment for ADHD and for anxiety. As I have mentioned, it is suggested in that report that you have got a reduced alcohol consumption though that is not necessarily consistent with what you told the psychologist.
You are looking at gaining work skills but you are not currently in employment. I am told today that you are about to commence a course in relation to welding. Obviously if there are issues relating to ongoing consumption of alcohol this is likely to have a detrimental effect on your ability to hold and obtain employment.
You have expressed interest on [sic] working on your numeracy and literacy skills and it appears that you are motivated to make positive lifestyle changes.
In recent times, the appellant has made considerable advances toward rehabilitation. As already observed, he successfully complied with the terms of a good behaviour bond entered into on 25 July 2004. He has not offended since August 2004, when the subject offending was committed. He is a participant in a Personal Support Program, a government program through which he gains assistance in acquiring the necessary skills to gain employment, including assistance with literacy and numeracy.
The sentence
As this was not the first time that the appellant had been convicted of the offence of driving whilst disqualified, the maximum penalty applicable, pursuant to section 91(5) of the Motor Vehicles Act, was a term of imprisonment not exceeding two years. The magistrate sentenced the appellant to imprisonment for six weeks. She declined to suspend the sentence. The magistrate made the following remarks in relation to the drive disqualified charge:
I turn to consider the sentence in relation to driving under disqualification first. In my view this charge does call for a term of imprisonment. I find that the driving was contumacious and in direct disregard of the order of the court. As I have already mentioned, you have three prior convictions for similar offending and you breached a suspended sentence bond in relation to similar offending in the year 2000. You drove, as I have already said, having been shortly before apprehended for driving under disqualification. This type of offending is prevalent. It is difficult to detect and it strikes at the basis of the disqualification which in this case was imposed because of the risk that you constituted to other road users through drink driving offences.
There is a need for me to impose a sentence today which reflects principles of general and personal deterrence and those factors must, in your case, out-weigh factors that are personal to you in relation to your rehabilitation. The starting point for a term of imprisonment in this case, in my view, taking into account all of the factors that I have mentioned and also considering the efforts that you have made to rehabilitate, is a term of imprisonment of eight weeks but I reduce that to a term of imprisonment of six weeks by virtue of the guilty plea that you entered in relation to this matter.
During sentencing submissions, the appellant’s counsel urged the magistrate to suspend the term of imprisonment on the basis of the appellant’s personal circumstances – his dysfunctional, unstable childhood, his mental health issues and his alcohol abuse. More particularly, counsel contended that the custodial sentence ought to be suspended in light of the excellent progress that the appellant had made since the commission of the offending and whilst meeting the obligations of the good behaviour bond. Counsel submitted that to gaol the appellant in such circumstances would only serve to frustrate the progress that he had made. The magistrate, however, declined to suspend the sentence. In doing so, she observed:
Despite thorough and careful submissions put by defence counsel, I am not persuaded that there is good cause to suspend the sentence of imprisonment that I have just imposed. As I have already indicated, there is a need to impose a deterrent penalty in cases such as the case currently before me and that need, in my view, outweighs the personal factors. I, therefore, do not suspend the term of imprisonment that I have just imposed.
The Appeal
The appellant appealed against the sentence on the basis that the magistrate erred in failing to exercise her discretion to suspend the term of imprisonment. On appeal, counsel reiterated the submissions put by defence counsel before the magistrate in relation to the appellant’s personal circumstances. Counsel emphasised that the appellant had met the terms of the good behaviour bond into which he had entered on 25 July 2004 and submitted that, in doing so, he had made significant steps toward rehabilitation.
Counsel for the appellant submitted that the magistrate erred in the exercise of her sentencing discretion by taking into account two irrelevant considerations. First, the magistrate, it was said, identified certain features of the offending that she inappropriately characterised as aggravating circumstances. Second, the magistrate had regard, incorrectly, to the approach taken by the magistrate who dealt with the 25 July 2004 driving whilst disqualified charge, and, in so doing, failed to properly discharge her role as the sentencing magistrate with respect to the present offending.
Consideration of aggravating features
Counsel for the appellant drew the Court’s attention to the following passage of the magistrate’s sentencing remarks, which, counsel contended, indicated error in the magistrate’s reasoning:
The aggravating features of the driving disqualified charge now before me, as I have said, are that you had been apprehended 16 days before driving whilst disqualified and yet you again drove knowing about the seriousness of that offence having previously been imprisoned in relation to a similar offence.
…The aggravating feature of the offending before me is that you have again driven a car at a time when you knew you were disqualified, whilst again being under the influence of alcohol.
In Police v Maxwell,[1] Bleby J cast doubt upon whether such circumstances as those identified by the magistrate can be viewed as aggravating features of the offence of driving whilst disqualified. Bleby J observed:[2]
Here the offence is driving whilst disqualified. All that is required is an act of driving. The circumstances of aggravation or otherwise will relate to the circumstances in which the defendant came to be driving, whether the act of driving was trifling or substantial, and the reasons and the purpose for which the defendant was driving. Above all, it will depend on whether the offence can be said to be contumacious, in the sense discussed by Mullighan J in Police v Cadd (1997) 69 SASR 150 at 179. That is, whether the defendant was driving with an attitude of total disregard of a disqualification in disobedience to the authority which imposed the suspension.
…
I have already said that this offence will seldom be aggravated by the manner of driving, and that that will normally be the subject of the separate penalty. What aggravates this type of offence is the reason for, and circumstances of the driving itself, and the nature and extent of the disregard of the law, given that the disqualification itself will invariably have been imposed by a court or competent statutory authority because of some other breaches of the law. Unlike many other offences, the offender’s previous record may well indicate a continuing attitude of disobedience to the law which is directly relevant in assessing the gravity of the offence in question.
[1] Police v Maxwell (1998) 102 ACrimR 374.
[2] Police v Maxwell (1998) 102 ACrimR 374 at 378-379.
In Crafter v Police,[3] Mullighan J remarked to similar effect:[4]
The learned Magistrate obviously took a very serious view of the manner of driving of the appellant. It is fair to say that he behaved as a lout and he is fortunate that he was not charged with a more serious offence. However, as he must be separately punished for the offence of damaging a road, this conduct should not be regarded as a matter of aggravation when considering the sentence for driving disqualified. He is not to be punished twice for the same conduct: Long v Police (1998) 72 SASR 515.
[3] Crafter v Police [2001] SASC 316.
[4] Crafter v Police [2001] SASC 316 at [15].
The circumstances of the July 2004 offending were relevant to an assessment of the appellant’s conduct and whether it was contumacious. However, the treatment of the appellant’s drink driving conduct as an aggravating factor was inappropriate. As observed by Bleby and Mullighan JJ, such conduct cannot be viewed as a circumstance of aggravation. Such conduct gave rise to a separate offence. The approach of the magistrate was incorrect. It also left open the possibility that the appellant could be punished twice in respect of the drink driving conduct.
Regard to the approach of the earlier magistrate
When addressing the question of suspension, the magistrate considered the decision of the magistrate who had dealt with the 25 July 2004 offence of driving whilst disqualified to suspend the sentence of imprisonment on that occasion:
The difficulty I have in considering the approach taken by the Magistrate in 2004 is that that sentence would have been passed on the basis of there being a single incident of driving disqualified and the Magistrate would not have been aware that 16 days after the incident with which he was dealing, [the appellant] had again driving whilst disqualified. I am, therefore, not able to assess whether the Magistrate on that occasion would have suspended your sentence if he had been aware that there was not one but two breaches of the order for disqualification.
The task of the magistrate in the present proceedings was to sentence the appellant in respect of the August 2004 offending having regard to the relevant events that had occurred. By speculating as to what another magistrate may have done on a previous occasion if certain facts were known, the magistrate has failed to consider properly the matter before her. What sentence another magistrate may have hypothetically imposed on an earlier occasion was not a relevant consideration. In this way, the magistrate in the present proceedings erred by having regard to an irrelevant consideration.
It was relevant however, for the magistrate to have regard to the fact that the appellant had successfully completed the 18-month suspended sentence bond and that the appellant had not offended since that time. The effect of the magistrate’s reasoning was to “downplay” relevant matters by speculating as to what another magistrate may have done.
Re-sentence
Having identified error in the approach of the magistrate, it is necessary to re-sentence the appellant. In doing so, I have regard to the circumstances of the offending and to the submissions made in respect of the appellant’s personal circumstances and history.
Counsel for the appellant accepted that the sentence of six weeks’ imprisonment was appropriate. This was a correct concession. The offending - a repeat offence - was serious and called for a sentence of imprisonment. In the circumstances, six weeks could be considered at the lower end of the range.
Given the appellant’s progress made toward rehabilitation in recent times and, in particular, his positive response to the conditions imposed upon him pursuant to the good behaviour bond with respect to the July 2004 offending, I do not consider that immediate imprisonment is appropriate. Immediate imprisonment at this stage in the appellant’s life is likely only to frustrate the rehabilitative progress made to date.[5] This consideration weighs particularly heavily in light of the fact that the appellant committed the subject offence some two years ago, prior to the progress just outlined, and that the appellant has not offended in any way since August 2004.
[5] Duncan v R (1983) 47 ALR 746 at 749, R v Van Der Horst [2006] SASC 243 at [35].
In these circumstances, I have concluded that there is good reason to suspend the term of imprisonment.
Conclusion
This appeal is allowed. The sentence imposed by the magistrate in respect of the charge of driving whilst disqualified is set aside. The appellant is sentenced to six weeks’ imprisonment, suspended upon his entry into a supervised bond to be of good behaviour for two years. In all other respects, the orders of the magistrate remain unchanged.