Budiono v Police

Case [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

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Budiono v Police [2019] SASC 37
Case
[2019] SASC 37
Decision Date

CaseChat Overview and Summary

The appellant in Budiono v Police appealed against his sentence for multiple driving offences, arguing that it was manifestly excessive and that the magistrate made several errors in imposing the sentence. The court had to determine whether the sentence was appropriate and whether there were any errors in the magistrate's decision-making process. The court found that the magistrate erred in several respects, including imposing a cumulative sentence for one of the offences and failing to consider the possibility of suspending the sentence. The court also found that the sentence was manifestly excessive, taking into account the appellant's early guilty plea and other mitigating factors. The court re-sentenced the appellant, reducing the overall sentence and imposing a non-parole period of eight months. The court also amended the particulars of two of the offences in the Magistrates Court Information to reflect the correct dates of the offences. The court quashed the conviction on one of the offences and ordered that the appellant be re-sentenced on all counts.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 14th day of February 2018 rather than the 2nd 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.

Ratio Decidendi

Legal Principle Established

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.