Budiono v Police - [2019] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BUDIONO v POLICE
[2019] SASC 37
Judgment of The Honourable Justice Parker
13 March 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
This is an appeal against the sentence imposed on conviction for 10 offences arising from the use of stolen motor vehicles and other related dishonesty offences, which occurred between 23 January 2018 and 15 February 2018.
The respondent concedes the appeal in respect of counts 1, 2, 3 and 5 (four counts of driving a vehicle without the owner’s consent). Count 5 was incorrectly particularised as having occurred on 2 February 2018 instead of 14 February 2018, with the result that the appellant was convicted of count 5 although the same conduct was the aggravating element in count 7 (aggravated driving dangerously to escape police pursuit).
Held, per Parker J, upholding the appeal, quashing the conviction on count 5 and re-sentencing the appellant on all counts:
1. Conduct that was an aggravating feature in count 7 could not also constitute a separate offence in count 5 (at [45]).
2. The House v The King principle, as applied in R v Kreutzer and in Bridges v Police, says nothing as to whether, in a case where the sentence comprised two discrete elements, it is necessary to resentence the appellant on all counts upon the identification of an outcome error that relates to only one of those discrete elements (at [46]-[48]).
3. The respondent must nevertheless be re-sentenced on all counts (at [49]).
4. Although the starting point of imprisonment for two years adopted by the Magistrate was towards the upper end of the range, it was within the bounds of the Magistrate’s discretion (at [50]-[52]).
5. Because of the fundamental difference between the two types of conduct, it was a permissible use of the Magistrate’s discretion to make the sentences cumulative (at [53]-[55]).
6. There is not good reason to suspend the sentence of imprisonment (at [57]-[62]).
Criminal Law Consolidation Act 1935 (SA) ss 19A, 86A, 144, 144D; Summary Offences Act 1953 (SA) s 41; Motor Vehicles Act 1959 (SA) s 47; Sentencing Act 2017 (SA) ss 26, 45, 96; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Procedure Act 1921 (SA) s 181, referred to.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; Parsons v Police [2008] SASC 339; Jones v Police [2019] SASC 36; R v Morse (1979) 23 SASR 98, applied.
Police v Graham [2016] SASC 78; Stevens v Police (2015) 122 SASR 531; Police v Schutt [2018] SASC 75; White v Police [2016] SASC 94; R v Barnes (No 2) [2014] SASCFC 123; Laidlaw v Police [2008] SASC 340; Thompson v Police [2007] SASC 370; R v Power [2003] SASC 288; Benns v Judd (1992) 58 SASR 295; R v Kreutzer (2013) 118 SASR 211; Bridges v Police [2017] SASC 35; House v The King (1936) 55 CLR 499, considered.

BUDIONO v POLICE
[2019] SASC 37
Magistrates Appeal: Criminal

PARKER J: This is an appeal against the sentence imposed on conviction for 10 offences arising from the use of stolen motor vehicles and other related dishonesty offences, which occurred between 23 January 2018 and 15 February 2018.
For the reasons that follow, I uphold the appeal and re-sentence the appellant.
Extension of time
The appellant was sentenced on 14 September 2018 but his appeal was not lodged until 23 November 2018. He has partly explained the delay on the basis that there was a delay of several weeks in receiving the sentencing remarks and a further short delay before he was granted legal aid. The application is not opposed by the respondent. I therefore grant an extension of time to the extent required.
Grounds of appeal
The respondent also did not oppose the grant of permission to proceed on amended grounds. I therefore grant permission. The amended grounds of appeal are:
1.   The sentence is, in all the circumstances, manifestly excessive.
2.   The Learned Sentencing Magistrate erred in making the sentence for the driving dangerously to escape police pursuit cumulative upon the sentence imposed for the four counts of illegal use.
3.   The Learned Sentencing Magistrate erred in failing to find that good reason existed to suspend the sentence.
Background
On 14 September 2018, the appellant pleaded guilty to 10 counts. They were:
·four counts of driving or using a motor vehicle without the consent of the owner, contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (counts 1, 2, 3 and 5);
·two counts of driving a motor vehicle with an incorrect number plate, contrary to s 47 of the Motor Vehicles Act 1959 (SA) (counts 4 and 6);
·one count of aggravated driving dangerously to escape police pursuit, contrary to s 19AC of the CLCA (count 7);
·one count of making off without payment, contrary to s 144 of the CLCA (count 8);
·one count of unlawful possession of personal property, contrary to s 41 of the Summary Offences Act 1953 (SA) (count 9); and
·one count of possession of prohibited material, contrary to s 144D of the CLCA (count 10).
The factual background to these 10 offences is as follows.
On each of 23 January 2018, 1 February 2018, 2 February 2018 and 14 February 2018, the appellant drove a different motor vehicle that had previously been reported as stolen (this forms the basis of counts 1, 2, 3 and 5 respectively).
The vehicles driven by the appellant on 2 February 2018 and 14 February 2018 were both fitted with a number plate other than that allocated to the respective vehicle by the Registrar of Motor Vehicles (this forms the basis of counts 4 and 6 respectively).
The significant issue in this appeal is that the Magistrates Court Information incorrectly particularised both counts 5 and 6 as having occurred on 2 February 2018 (as with counts 3 and 4). In fact, the conduct alleged in counts 5 and 6 occurred on 14 February 2018 before or during the police pursuit that forms the subject of count 7 (see below). The appellant was convicted of the offence of driving without consent (count 5) although the same conduct was the aggravating element in count 7.
On 14 February 2018 and extending into 15 February 2018, police officers engaged in a high speed pursuit of a motor vehicle driven by the appellant which had been reported as stolen. This forms the basis of count 7. The pursuit commenced at approximately 11:30 pm and ended well after midnight. It took place from Ridgehaven to Para Hills West and then Glenelg before moving to the Adelaide CBD. The vehicle reached speeds in excess of 120 km/hr in an 80 km/hr zone and an estimated 100 km/hr in a 60 km/hr zone. The appellant ran many red lights and drove with headlights switched off across a median strip to the wrong side of the road so as to evade police road spikes. A police helicopter was engaged to maintain surveillance of the vehicle. Despite this conduct the appellant contends, and the Crown did not dispute, that no other motorist was embarrassed. Counsel’s suggestion that the appellant had slowed before running red lights was also not challenged.
The appellant temporarily escaped the police pursuit long enough to enter a service station at Para Hills West, where he put petrol into the vehicle but drove off without making payment (count 8).
Upon ultimately stopping the vehicle, the appellant attempted to flee but was apprehended. When police searched the appellant and the vehicle, they located numerous items of stolen property including electrical products, garage door remote controls, car keys, various membership cards, passports, a driver’s licence, vehicle handbooks, frequent flyer cards, fuel cards and Myer One cards (count 9). The appellant was also found to be in the possession of blank South Australian driver’s licences (count 10). The blank licences referred to in count 10 are different documents to the completed licence included in count 9.
Personal circumstances
The appellant was born in 1992 and aged 26 years when sentenced. Throughout his teens he was a highly accomplished tennis player. After leaving school during year 11, the appellant worked in his family’s restaurant business and also in the refrigeration industry.
The Magistrate noted that until late 2017, the appellant had a good relationship with his parents and other family. He became estranged from his family as a consequence of his relationship with a young woman who was then a heavy drug user. He has significant drug issues. The Magistrate recorded that the appellant had adopted a drug based lifestyle due to the influence of this woman and her friends, who were also heavy drug users. The appellant has since renewed his relationship with his family. They are supportive but are unaware of the serious nature of the offences he has committed.
At the time of the offending the appellant was living in a house with other drug users. The cars involved in the offending were stolen by persons other than the appellant and were available for use by residents at the house. The appellant was recorded on a security camera driving the stolen cars.
The appellant has several relevant prior convictions. He was convicted in 2012 of driving at a dangerous speed for which he was fined and disqualified from driving for 12 months. In 2016 he was convicted on two counts of possessing prescribed equipment. A fine was imposed. In 2017 he was convicted of driving while disqualified and again fined. The appellant was also convicted of breaching a bail condition in 2016, for which he was fined. He was also convicted in 2017 of an unlawful possession offence and once again fined. He has not previously served a custodial sentence.
A number of references were supplied to the Magistrate. These referred positively to the appellant’s prospects for rehabilitation following the birth of his daughter and the high level of support available to him from his partner and family. Copies of certificates for two vocational education courses (general education and business) that the appellant had completed while in prison were also supplied. His family also confirmed that work was available for him in their restaurant upon his release.
As the respondent concedes that the appeal must be upheld and the appellant re-sentenced, it did not object to this Court receiving a psychological report that was not before the Magistrate. The report was prepared by Mr Richard Balfour and dated 1 February 2019, i.e. some five months after the appellant was sentenced.
The key passages in Mr Balfour’s report are as follows:
Mr Budiono was fortunate to be raised in a stable and nurturing family. He enjoyed a middle‑class childhood, and attended a good school. His parents are successful small restauranteurs. He is the youngest of four siblings. He had a good childhood. He showed promise as an A-grade tennis player. With appropriate coaching and training, he could have become a professional tennis player. He was keen to follow in his family’s business and to become a restaurateur. Consequently, he was sixteen years old when he was given the opportunity to acquire work experience in a restaurant owned by a man aged in his forties. However, this man skilfully manipulated him to sexually exploit him. This man raped him on three occasions in a store room in a restaurant.[1] Mr Budiono became both confused and traumatised. He then prematurely left his work experience placement to avoid being further sexually assaulted by the restaurant’s male manager.
Due to being repeatedly raped, I believe Mr Budiono developed a Post-Traumatic Stress Disorder (PTSD). His life then dramatically deteriorated. He ceased playing A-grade tennis. He was seventeen years when he failed to sit his final exams for Year 11. He then commenced experimenting with illegal drugs to cope with his sexual traumatisation. He commenced socialising with negative peers. He is an example of the pernicious long‑term psychological effects of childhood sexual abuse. His life has been derailed by his childhood sexual traumatisation.
[1] I note that the alleged perpetrator was not connected with the restaurants run by the appellant’s family.
Mr Balfour stated that the appellant’s offending behaviour is directly related to his drug addiction and that this represents another adaptive coping strategy for his mental health problems that stem from his childhood sexual abuse. At the time of the offences, the appellant was addicted to both Ice and Fantasy. The appellant told Mr Balfour that he was keen to overcome his drug addiction and has not used drugs since he was remanded in custody in March 2018.
Mr Balfour considered that, with the assistance of a supervised and structured rehabilitation program, the appellant had a fair to good prognosis of ceasing offending. Having disclosed for the first time the past sexual abuse, he is now able to actively seek treatment for his mental health problems. The fact of being remanded in custody has acted as a circuit breaker in his life by forcing him to totally abstain from drug use. As a result, his mental and physical health has improved and he has “been able to engage in some constructive introspection regarding his life.” Since his arrest, he has avoided his former negative peer group. He values his relationship with his partner and their daughter, who was aged 17 weeks when the report was prepared. His partner ceased all drug use upon discovering that she was pregnant. She remains supportive and regularly visits him in prison, as do his parents. He wants to become an active father and good role model to his daughter.
Mr Balfour also reported that the appellant does not suffer from any comorbid psychopathology that would complicate his rehabilitation and predispose him to further offending. He does suffer from post-traumatic stress disorder caused by the sexual assaults. Mr Balfour considered that the appellant’s remorse was genuine and not self-serving. His family are supportive of him and his partner and their daughter. The appellant has a strong work ethic and is intelligent. He aims to become a qualified chef and eventually to run a restaurant. These personal strengths will assist in his rehabilitation.
Sentencing Remarks
The Magistrate noted the circumstances of the offending and the appellant’s history. The Magistrate was informed by counsel that the appellant was not personally responsible for the stealing of the motor vehicles he drove in the illegal use charges but he was aware that the vehicles were stolen.
The Magistrate described the offending as serious. The appellant did not challenge the prosecution position that imprisonment was warranted. However, counsel submitted that due to the appellant’s youth, absence of significant prior offending and the fact that until recently he had been a useful member of the community, it was appropriate to suspend the term of imprisonment. The Magistrate held that the appellant’s offending was too serious to permit the suspension of the sentence of imprisonment, either in part or in full.
The Sentence
The Magistrate would have imposed a sentence of one year imprisonment covering counts 1, 2, 3 and 5 — the four counts of driving or using a motor vehicle without consent. His Honour reduced this by 40% to seven months and two weeks due to the appellant’s early guilty pleas. His Honour further imposed a one year licence disqualification for each of these four offences, to be served concurrently.
The Magistrate convicted the appellant without further penalty on counts 4 and 6 — the two incorrect number plate offences.
The Magistrate adopted a starting point of imprisonment for two years for count 7 — the charge of aggravated dangerous driving to escape police pursuit. His Honour reduced this by 40% in recognition of the appellant’s early guilty plea to a term of imprisonment for 14 months and two weeks. This sentence was to be served cumulatively with the term of seven months and two weeks imprisonment for counts 1, 2, 3 and 5. His Honour further imposed a two year licence disqualification for this offence, to be cumulative on the one year disqualification for counts 1, 2, 3 and 5.
For count 8 — the offence of making off without payment — the Magistrate imposed a term of 14 days imprisonment, which took into account the 40% guilty plea discount. This sentence was to be served concurrently with the 14 months and two weeks sentence for count 7.
His Honour imposed a term of imprisonment for four months on count 9 — the offence of unlawful possession of personal property — which was reduced by 40% due to the guilty plea discount to two months and two weeks. This was to be served concurrently with the sentence of 14 months and two weeks for count 7.
For count 10 — the possession of prohibited material — the Magistrate would have imposed a term of six months imprisonment to be reduced by the 40% guilty plea discount and served concurrently with the sentence imposed for count 7.
The total sentence imposed by the Magistrate was imprisonment for a term of 21 months and four weeks, with a non-parole period of 13 months to commence from 1 March 2018. The three year licence disqualification was to commence upon the appellant being released from custody.
Appellant’s submissions
The appellant contends that the concession made by the respondent (see paragraph [35] below) requires the Court to resentence him on all counts and not merely counts 1, 2 and 3. The appellant also submits that the Magistrate misdirected himself on the question of suspension of the sentence of imprisonment. The basis for the error is said to be that the Magistrate merely considered that the offending was too serious to permit suspension, notwithstanding the fact that none of the offending was of a major indictable character. In that respect the appellant relies upon the decisions in Police v Graham[2] and Stevens v Police.[3]The only test to be applied when deciding whether suspension is appropriate is “good reason” in accordance with s 96 of the Sentencing Act 2017 (SA). The Magistrate failed to address this question. The appellant also points to the fact that s 96(5) allows for a partial suspension and this question was also not considered by the Magistrate.
[2] [2016] SASC 78.
[3] (2015) 122 SASR 531.
The appellant also suggests that count 10 is duplicitous with the particulars in count 9. The duplicity was said to arise because both counts referred to the possession of driver’s licences. However, I have already noted that the police apprehension report makes clear that the blank licences referred to in count 10 are different documents to the completed licence included in count 9.
The appellant submits that he should be resentenced taking into account all matters, including the report of Mr Balfour. A fresh, lesser, sentence should be suspended.
Respondent’s submissions
The error in the Magistrates Court Information
The respondent concedes the appeal, but solely in relation to the single sentence of seven months and two weeks imprisonment imposed for counts 1, 2, 3 and 5. The basis for that concession is the error made in respect of count 5 (see paragraph [9] above). That resulted in the appellant being punished twice for the same conduct. Despite this concession, the respondent contests each of the appellant’s three grounds of appeal.
Ground 1 — manifestly excessive sentence
The respondent submits that consideration of whether a sentence is manifestly excessive involves addressing the following four factors:
1The maximum penalty prescribed by law for the offence;
2The standard of sentences customarily observed for offences of the kind in question;
3The relative seriousness of the offence committed when compared with other offences of its kind; and
4The personal circumstances of the person sentenced.

The maximum sentence available for count 7 (the high speed pursuit offence) is imprisonment for a term of five years. The Magistrate adopted a starting point for this offence two years imprisonment, less than half the available maximum.
High speed pursuit offences commonly attract periods of imprisonment.[4] However, there is limited utility in comparing this matter to other cases due to the range of circumstances in which such offences occur and the variety of factors that may influence sentencing.
[4] See, eg, Police v Schutt [2018] SASC 75; White v Police [2016] SASC 94; Stevens v Police (2015) 122 SASR 531; R v Barnes (No 2) [2014] SASCFC 123; Laidlaw v Police [2008] SASC 340; Parsons v Police [2008] SASC 339; Thompson v Police [2007] SASC 370.
As the starting point for count 7 was less than half of the available maximum penalty, it is apparent that the Magistrate regarded the offence as serious, but not the most serious offending of its type. The respondent submits that this assessment was correct.
The respondent submits that consideration of all of these factors in combination does not lead to the conclusion that the sentence imposed was plainly unreasonable or unjust.
Ground 2 — accumulation of sentences
The accumulation of sentences under s 45(1) of the Sentencing Act 2017 will generally be appropriate where the offences represent separate incursions into criminal activity.[5] The appellant’s offending on 23 January, 1 February, 2 February and 14 February 2018 represent four fresh criminal incursions involving four different vehicles owned by four different victims. The respondent therefore submits that four cumulative penalties were prima facie warranted.
[5] A-G (SA) v Tichy (1982) 30 SASR 84.
The respondent further submits that whether offences should be regarded as a single course of conduct is a matter of fact and degree.[6] The ultimate question on appeal is whether the final sentence is in the appropriate range for the offending.[7]
[6] Ibid.
[7] R v Power [2003] SASC 288 at [22] (Sulan J).
Ground 3 — suspension of sentence
The respondent submits that there is no demonstrated error in the Magistrate’s exercise of his discretion under s 96(1) of the Sentencing Act 2017 to decline to suspend the sentence of imprisonment. The appellant was a young man facing gaol for the first time. While the Magistrate was obliged to consider whether the sentences should be suspended, he expressly declined to suspend in part or in full due to the seriousness of the offences.
The appellant’s offending is comprised of a series of serious offences over an approximately three week period, with an element of persistence and escalation. Ongoing offending, even by a relatively young offender being sentenced for the first time, is a factor which may make a suspended sentence inappropriate.[8]
[8] Benns v Judd (1992) 58 SASR 295.
Consideration
The Magistrate was led into error by the allegation in count 5 that the driving of a vehicle without consent of the owner occurred on 2 February 2018. The relevant conduct actually occurred on 14 February 2018 and was the same conduct as the aggravating feature in count 7 (i.e. driving a motor vehicle without the owner’s consent). Conduct that was an aggravating feature in count 7 could not also constitute a separate offence in count 5.[9]
[9] Parsons v Police [2008] SASC 339; Jones v Police [2019] SASC 36.
The Magistrate exercised the power under s 26 of the Sentencing Act 2017[10] to impose one penalty in respect of counts 1, 2, 3 and 5, i.e. the charges of driving a vehicle without the consent of the owner, contrary to s 86A of the CLCA. The respondent concedes that the appellant must be resentenced in respect of counts 1, 2 and 3. However, the respondent does not concede that the appellant should be resentenced on all 10 counts.
[10] The successor provision to s 18A of the repealed Criminal Law (Sentencing) Act 1988 (SA).
The appellant takes the contrary position. He submits that the judgments of the Court of Criminal Appeal in R v Kreutzer[11] and that of Stanley J in Bridges v Police[12] require re-sentencing on all counts. In Kreutzer, Kourakis CJ held that where an outcome error of the type referred to in House v The King has occurred in sentencing, the sentence must be quashed. Stanley J held in Bridges held that because a House v The King error had occurred the appellant must be resentenced.
[11] (2013) 118 SASR 211 at 214-215 [8]-[10] (Kourakis CJ).
[12] [2017] SASC 35 at [19] (Stanley J).
The House v The King principle, as applied in Kreutzer and in Bridges, says nothing as to whether, in a case where the sentence comprised two discrete elements, it is necessary to resentence the appellant on all counts upon the identification of an outcome error that relates to only one of those discrete elements. Accordingly, I do not consider that these authorities are directly relevant and nor do they assist the appellant.
Notwithstanding that conclusion, for the following three reasons, I consider that the appellant must be resentenced on all counts. First, the fact that the appellant was incorrectly sentenced for counts 1, 2, 3 and 5 may have affected the approach taken by the Magistrate on all counts to the issues of concurrency and accumulation of sentences and the totality principle. Secondly, as the non‑parole period was fixed by reference to the total head sentence, any reconsideration of an element of the head sentence must necessarily affect the non‑parole period. Thirdly, the information supplied in the report from Mr Balfour, which was not available to the Magistrate, is relevant to sentencing on all counts. The respondent concedes that Mr Balfour’s report must be taken into account and is favourable to the appellant.
I turn to the three grounds of appeal raised by the appellant. The principles to be applied in determining whether a sentence was manifestly excessive were explained by King CJ (with White and Mohr JJ agreeing) in R v Morse.[13] King CJ stated:[14]
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
[13] (1979) 23 SASR 98.
[14] Ibid at 99 (King CJ).
It has not been alleged that other road users were actually embarrassed by the driving involved in count 7. Thus, it falls short of the most serious examples of this offence. Nevertheless, the conduct was very serious. The appellant’s driving created a real risk of harm to others as he drove at speeds far in excess of the speed limit, for a long distance across much of Adelaide, sometimes on the wrong side of the road and without lights and in disobedience of many traffic signals while being pursued by police cars and a helicopter. The fact that he slowed before running red lights would have somewhat reduced, but not removed, the danger to others. It was also relevant to sentencing that the appellant has prior convictions for driving at a dangerous speed and driving while disqualified.
The authorities referred to by the respondent indicate that a sentence of imprisonment is generally appropriate for conduct of the type I have described.[15] The gravity of the conduct in the cited cases varied, and in some instances the offending was aggravated and in others it was not. After considering the sentences imposed in the cited cases, the matters referred to in Morse, the appellant’s personal circumstances and offending history, and allowing for the fact that the Magistrate did not have the assistance of Mr Balfour’s report, I consider that the starting point of imprisonment of two years adopted by the Magistrate was clearly towards the upper end of the range. However, I consider that the sentence was within the bounds of the Magistrate’s discretion. I am not persuaded that the sentence was manifestly excessive.
[15] Police v Schutt [2018] SASC 75; White v Police [2016] SASC 94; Stevens v Police (2015) 122 SASR 531; R v Barnes (No 2) [2014] SASCFC 123; Laidlaw v Police [2008] SASC 340; Parsons v Police [2008] SASC 339; Thompson v Police [2007] SASC 370.
I turn to the appellant’s contention that the sentence imposed for counts 1, 2, 3 and 5 should have been made concurrent with that for count 7 rather than cumulative.
In Attorney-General (SA) v Tichy, Wells J held that:[16]
[w]here there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.
[16] (1982) 30 SASR 84 at 93 (Wells J).
I consider that the Magistrate did not err in imposing cumulative sentences. The four (and now three) counts of driving a vehicle without the consent of the owner were fundamentally different to the aggravated offence of driving dangerously to escape police pursuit. The first group of offences concern the unauthorised taking and use of property. There is no suggestion that the stolen vehicles used in counts 1, 2 and 3 were driven in a manner that caused any danger to others. In contrast, count 7 was concerned with driving that created a real risk to others. Because of the fundamental difference between the two types of conduct, I consider that it was a permissible use of the Magistrate’s discretion to make the sentences cumulative.
I consider that the Magistrate correctly applied the principles of concurrency and totality in relation to the other counts. The conduct involved in counts 8, 9 and 10 was part of the same incursion into criminal conduct as count 7 and the sentences of imprisonment imposed for those three counts were appropriately made concurrent with that for count 7. The conviction without further penalty on counts 4 and 6, being the number plate offences, was also appropriate on the basis of totality given that a sentences of imprisonment were imposed for the unauthorised use and police pursuit offences. The use of false number plates was incidental to those offences.
The final ground of appeal is that the Magistrate erred by failing to suspend the sentence of imprisonment. The observation by the Magistrate “that the offending is too serious to permit me to suspend it, either in part or in full” is said to be erroneous.
The preceding observation by the Magistrate followed immediately after his Honour’s statement that he had given due consideration to the matters that had been raised by the appellant’s counsel. The Magistrate had referred at paragraph [20] of his ex tempore sentencing remarks to the various matters raised by counsel that were relevant to the favourable exercise of the discretion to suspend the sentence of imprisonment. I do not doubt that the Magistrate weighed the various factors favourable to the appellant against the seriousness of his offending and reached the conclusion that good reason could not be found to suspend the sentence.
The appellant seeks to draw support from the judgment of Peek J in Police v Graham.[17] In Graham, while the Magistrate’s sentencing remarks were not recorded, counsel had stated in an affidavit that the Magistrate “considered that the offending was too serious to suspend any of the sentence”. Counsel submitted that the Magistrate had misdirected himself to the effect that “a sentence for the type of offences involved here could not be suspended”. In fact, a report from the Magistrate indicated that his Honour had concluded, after taking into account the appellant’s history, the number of offences before the court, his continued lawless behaviour and the fact that he had breached a previous suspended sentence bond, that there was no basis upon which the sentence could be suspended, either wholly or in part. Peek J held that it was apparent that the Magistrate did not consider that there was good reason to suspend the sentence. In the present matter there is no basis for a conclusion that the Magistrate proceeded on the basis that a sentence for the type of offences involved here could not be suspended. In my view, the observation by his Honour that “the offending is too serious” was a reference to the actual conduct of the appellant rather than a generic conclusion that sentences for offences of this type cannot be suspended.
[17] [2016] SASC 78.
The second authority relied on by the appellant in support of the submission that the sentence should have been suspended is the judgment of Kelly J in Stevens v Police.[18] The appellant in that case had been convicted of one count of driving dangerously to escape police pursuit. The Magistrate sentenced the appellant to three months’ imprisonment and declined to suspend the sentence. Kelly J found that the Magistrate had concluded that the need for specific and general deterrence had outweighed the rehabilitation of the appellant. The appellant was a first offender aged 20 years at the time of the offending and would lose his employment if imprisoned. Kelly J upheld the appeal on the basis that the Magistrate had failed to consider properly the appellant’s prospects of rehabilitation.
[18] (2015) 122 SASR 531.
In the present matter, the Magistrate did not have the assistance of Mr Balfour’s report when he imposed sentence. However, he did take into account all of the matters referred to by the appellant’s counsel, i.e. his age, absence of significant prior history of dishonesty offences or illegal use of vehicles and the fact that until recently he had been a useful member of the community who had been led astray by his association with drug users. While those considerations were favourable to a decision to suspend the sentence, the fact is that the appellant was guilty of the aggravated, rather than the simple, offence of driving dangerously to avoid police pursuit and that pursuit had occurred over a protracted period, and he also fell to be sentenced for numerous other offences. In those circumstances I consider the Magistrate had proper grounds to find that there was not good reason to suspend the sentence.
I have taken into account the additional information provided by Mr Balfour which suggests that the appellant has reasonable rehabilitation prospects now that the apparent cause of his descent into criminal behaviour has been identified. However, I am not persuaded that this outweighs the considerations of general and specific deterrence in view of the nature and extent of his offending. I therefore find that there is not good reason to suspend his sentence of imprisonment.
Re-sentencing
The Magistrate adopted a starting point of 12 months’ imprisonment in respect of counts 1, 2, 3 and 5 and reduced that to seven months and two weeks on account of the early guilty plea. In fact, the appellant should only have been sentenced on counts 1, 2 and 3 and I will quash the conviction on count 5. He must be re-sentenced on counts 1, 2 and 3.
The respondent has conceded that the matters referred to by Mr Balfour are favourable to the appellant and must be taken into account when fixing sentence. In light of the matters referred to by Mr Balfour, and as the appellant is now to be sentenced for one less count of driving a vehicle without consent, I would adopt a starting point of eight months’ imprisonment in respect of counts 1, 2 and 3. That must be reduced by 40% on account of the early guilty plea. I therefore fix a sentence for those three counts of four months and 24 days.
While the conduct involved in count 7 was not the worst example of its type, it was nevertheless a serious instance of driving dangerously to escape police pursuit and also an aggravated offence. While no other driver was actually embarrassed by the appellant’s conduct, such extreme driving creates a real risk of death or serious harm to other road users. For that reason Parliament has fixed the maximum sentence for an aggravated offence at imprisonment for five years.
The Magistrate adopted the starting point of imprisonment for two years on count 7 but in recognition of the guilty plea reduced that to imprisonment for 14 months and two weeks. In light of the matters identified in the report from Mr Balfour, I would adopt a starting point of imprisonment for 16 months in respect of count 7 and reduce that by 40% to 9 months and 18 days.
The Magistrate commenced with a starting point of 14 days imprisonment in respect of count 8. His Honour noted that the appellant was entitled to a discount of 40% but did not specify the actual sentence. As the sentence was concurrent with that for count 7, and very short, I do not consider it necessary to adopt a different sentence.
The starting point adopted by the Magistrate for count 9 was imprisonment for four months which his Honour reduced to two months and two weeks in recognition of the guilty plea. That sentence was to be served concurrently with the sentence imposed for count 7. In light of Mr Balfour’s report, I would adopt a starting point of imprisonment for three months which should be reduced to eight weeks due to the guilty plea, to be served concurrently with the sentence for count 7.
In relation to count 10 the Magistrate applied a starting point of six months’ imprisonment. That was to be reduced by 40% for the guilty plea but his Honour did not state the actual sentence. No doubt that was because the sentence was to be served concurrently with that for count 7. Clearly, the sentence was intended to be about 3.6 months. Having regard to the prospects of rehabilitation referred to by Mr Balfour, I would resentence the appellant by adopting a starting point of four months’ imprisonment and, after a reduction of 40% for the guilty plea, impose a sentence of imprisonment for two months and 12 days, to be served concurrently with that for count 7.
Like the Magistrate, I impose no penalty in respect of counts 4 and 6.
The licence disqualifications of one year for counts, 1,2, 3 and 5 and two years for count 7 imposed by the Magistrate were the mandatory minimum periods under ss 86A and 19AC of the CLCA respectively. I must impose the same licence disqualifications as the Magistrate. For the reasons already given, the periods of disqualification should be cumulative.
Conclusion
I extend the time for lodgement of the notice of appeal until 23 November 2018. I grant permission to file the amended notice of appeal dated 8 February 2019. I uphold the appeal.
I order under s 181(2) of the Criminal Procedure Act 1921 (SA) that counts 5 and 6 in the Magistrates Court Information dated 10 September 2018 be amended to refer to the 14^th day of February 2018 rather than the 2^nd day of February 2018.
I quash the conviction on count 5.
I re-sentence the appellant as follows:
·On counts 1, 2 and 3, I adopt a starting point of eight months’ imprisonment to be reduced by 40% on account of the early guilty plea to four months and 24 days. I also impose a one year licence disqualification for this offence to commence upon release from custody.
·I impose no penalty on counts 4 and 6.
·On count 7, I adopt a starting point of imprisonment for 16 months and reduce that by 40% to nine months and 18 days. I also impose a two year licence disqualification for this offence, cumulative upon the disqualification for counts 1, 2 and 3 to commence upon release from custody.
·On count 8, I adopt a starting point of 14 days imprisonment and reduce that by 40% to 8 days to be served concurrently with that for count 7.
·On count 9, I adopt a starting point of imprisonment for three months reduced to eight weeks due to the guilty plea. The sentence is to be served concurrently with that for count 7.
·On count 10, I adopt a starting point of imprisonment for four months reduced by 40% to imprisonment for two months and 12 days to be served concurrently with that for count 7.
·The total sentence of imprisonment is 13 months and six weeks to commence from 1 March 2018.
·The total period of licence disqualification is three years to commence upon release from custody.
·I set the non-parole period at 8 months commencing on 1 March 2018.