Bing v Police No. Scgrg-97-1393 Judgment No. S6426

[1997] SASC 6426

BING  v  POLICE

Perry J   (ex tempore)

The appellant appeals against a sentence of six months imprisonment imposed upon him following his plea of guilty in the Magistrates Court sitting at Adelaide to a charge that on 22 March 1997 at Adelaide and other places he drove a motor vehicle without first obtaining the consent of the owner, contrary to s86a of the Criminal Law Consolidation Act 1935.

In addition to the sentence of imprisonment the learned sentencing Magistrate disqualified the appellant from holding or obtaining a driver's licence for a period of twelve months, and ordered payment of compensation in the amount of $2,205 to the owner of the vehicle.  The compensation was ordered to be paid as to $800 forthwith and the balance over a period of twelve months.

At the outset of the appeal, I was informed by counsel for the appellant, Ms Griffith, that there was no appeal against the order for payment of compensation or the order of disqualification.  The appeal was limited to the sentence of imprisonment.  Furthermore, she intimated that it was not suggested that the case warranted the suspension of the term of imprisonment.

So that the appeal comes down to the question of the length of the term of imprisonment which was imposed.

The appellant is 26 years of age.  Since leaving school he has had various occupations of a relatively unskilled kind, but at the time of the present offending he was unemployed and living on Social Security.  He had a girlfriend who was due to give birth to a child in September 1997.

According to the facts given to the learned sentencing Magistrate by the police prosecutor, whose affidavit was put before me on the hearing of the appeal, a witness observed what turned out to be the appellant reversing the vehicle the subject of the charge (a car), in broad daylight, on a Saturday morning, from a parked position in Tam O'Shanter Place in the city.  That witness later spoke with the owner of the car who informed her that it had been stolen.

In the early afternoon of the same day, a witness working on his hills property at Corkscrew Road, Montacute, heard the noise of a car travelling towards Gorge Road.  He heard the car hit the embankment on two occasions, and then saw the car stationary in the middle of the roadway.  He noticed that it was severely damaged.  He assumed that to have resulted from the collisions with the embankment.  At that stage, the appellant was in another car travelling behind the illegally obtained car.

The appellant and two other males were then observed pushing the subject car off the road.  Whether accidentally or not is not clear, but it ended up going down an embankment into a small creek.  The men then drove away in the other car, which was owned by the appellant.

The damage to the car resulting from that incident rendered it a write-off.  The compensation order relates to the estimate of its value together with towing charges.

About a month later the appellant was interviewed.  He admitted taking the car from Tam O'Shanter Place on the day in question, but said that another young man drove it from a position to which the appellant had driven it, elsewhere in the city, to Corkscrew Road where the events unfolded to which I have referred.  The appellant was involved in the attempts to push the car off the side of the road.  He asserted that it had accidentally rolled over the embankment.

At the time of the hearing in the court below, the appellant was represented by counsel.  She indicated that the appellant had sold some of his personal possessions in order to raise $800, which he offered by way of part compensation to the owner of the car.  That explains that part of the order for compensation which required the payment forthwith of that amount.

On the hearing of the appeal Ms Griffith, emphasised the making of the offer of compensation, which she described as a substantial offer.

She suggested that overall the circumstances were such that it would have been proper for the learned sentencing Magistrate to invoke his discretion under s17 of the Criminal Law (Sentencing) Act 1988 and impose a lesser penalty than the minimum prescribed.

Having regard to the fact that this was a second offence, the minimum prescribed by s86a of the Criminal Law Consolidation Act was a term of imprisonment of not less than three months and not more than four years.

S17 of the Criminal Law (Sentencing) Act (1988) creates a discretion to reduce the minimum, but only in the circumstances identified in the section. They are when such a reduction is justified, having regard to the character, antecedents, age, physical or mental condition of the defendant, or the fact that the offence was trifling, or any other extenuating circumstances.

I am quite unable to discern in the case any feature of it which could possibly justify the application of the sentence so as to reduce the minimum penalty. With respect to Ms Griffith, there was nothing in the submissions put by her which could possibly satisfy any of the criteria laid down in s17.

Ms Griffith submitted that there were unusual features in the background of the appellant which justified more lenient treatment than might otherwise have been the case.  I have already referred to his general circumstances.  The learned sentencing Magistrate was also informed by an offender history report of a number of prior convictions.

The appellant was convicted in the Adelaide Children's Court in 1988 of a charge of carrying an offensive weapon, and of being in possession of a controlled substance and equipment to administer it.

In 1990 he was convicted of driving with excess blood alcohol and other driving offences, as to which he was fined and a licence disqualification was ordered.  In 1991 he was convicted of larceny which from the penalty imposed, namely, a community service order, may not have been very serious.

In July 1992 he was convicted of further traffic offences.

More importantly for present purposes, in January 1994 he was convicted of driving or using a motor vehicle without consent.

It is that conviction which renders the conviction now under appeal, a second offence.

For the first offence he was ordered to be imprisoned for one month, but this was suspended upon his entry into a two year good behaviour bond. Presumably that dates from 7 January 1994.

In September 1994, he was convicted of an offence of possessing a controlled substance, the offence date being 1 June 1994.  In February 1995, he was convicted of damaging property, the offence date in that case also being in December 1994.

The last two mentioned offences operated as a breach of the bond upon which the appellant was released in January 1994.  In those circumstances, it is surprising that it does not appear that he has been charged with breach of the bond.

Even allowing full weight for all of the matters put by Ms Griffith on the hearing of the appeal, I am quite unable to discern any unusual features as to the background of the appellant which could possibly have justified a more lenient approach to sentencing him.

The only unusual feature as to his background is that he was not charged with breach of the bond which was imposed in 1994.

This offence was a serious one of its kind.  No explanation or excuse has been offered for taking the car, other than the fact that the appellant had apparently had too much to drink.  Subsequently, he was party to an incident which resulted in the car being damaged beyond repair.  That serves to distinguish the case and put it into a more serious category of offending than those examples of this offence which involve no more than what has euphemistically been described as joy riding.

Given the fact that, as I have indicated, the minimum sentence was three months imprisonment and the maximum four years imprisonment, in my opinion, the sentence imposed was moderate and could not possibly be characterised as manifestly excessive.

Ms Griffith has not identified - indeed, she does not claim to be able to do so - any error in the sentencing remarks delivered by the learned sentencing Magistrate.

In all of those circumstances, in my view, the appeal must be dismissed.

There is no order as to costs.