Coleman v Police - [2010] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COLEMAN v POLICE
[2010] SASC 129
Judgment of The Honourable Justice Gray
7 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL
Appeal against sentence - defendant and appellant convicted of driving whilst disqualified and associated driving offences - sentence of one month imprisonment imposed suspended on entry by the defendant into a good behaviour bond of 18 months - bond breached by defendant driving whilst disqualified and driving with excess alcohol - in respect of breach of bond, Magistrate revoked suspended sentence of one month - in respect of driving whilst disqualified, Magistrate imposed a term of imprisonment of six weeks to be served cumulatively upon the one month term - whether sentence imposed by Magistrate manifestly excessive - whether Magistrate erred in not refraining from revoking suspended sentence - whether Magistrate erred in not suspending six week term imposed - consideration of psychiatric report provided to Court on the hearing of the appeal.
Held: appeal allowed - having regard to further psychiatric evidence with respect to defendant's mental state, imprisonment of the defendant would be counterproductive to his rehabilitation - appropriate in the circumstances to suspend term of imprisonment.
Road Traffic Act 1961 (SA) s 47B(1)(a); Motor Vehicles Act 1959 (SA) s 91; Criminal Law (Sentencing) Act 1988 (SA) s 38, s 57(1) and s 58; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
Police v Cadd (1997) 69 SASR 150; Mill v R (1988) 166 CLR 59; R v Knight (1981) 26 SASR 573; R v Kain (1985) 38 SASR 309; Police v Castelluzzo (1997) 193 LSJS 13; Bates v Police (1997) 70 SASR 66; Fox v Percy (2003) 214 CLR 118; R v Smith (1987) 44 SASR 587 at 588; R v Brain (1999) 74 SASR 92, considered.

COLEMAN v POLICE
[2010] SASC 129
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
This appeal provides a further example of the difficulties that arise when the mentally ill are involved in the criminal law. The defendant has a mental illness. He has received and continues to receive medical and psychiatric treatment. His offending would appear to be related to his illness. His illness does not give rise to a mental incompetence defence though it does have a direct relevance to the assessment of his overall criminality. The evidence before this Court demonstrates that an immediate custodial sentence is not in the interests of the community, nor those of the defendant. His offending does not involve any act of violence. His offending relates to breaches of the Road Traffic Act 1961 (SA), the Motor Vehicles Act 1959 (SA) and then non-compliance with a bond.
Background
On 19 April 2007, Steven John Coleman, the defendant and appellant, was convicted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] SASC 129
Decision Date: 7 May 2010

CaseChat Overview and Summary

The case of Coleman v Police involved Steven John Coleman, who was appealing his sentence imposed by a Magistrate. Coleman had been convicted of driving while disqualified and associated driving offences, and was initially sentenced to a suspended one-month imprisonment term and an 18-month good behaviour bond. The bond was breached when Coleman drove while disqualified and with excess alcohol, leading to the Magistrate revoking the suspended sentence and imposing a six-week imprisonment term for the driving while disqualified offence. Coleman appealed the sentence, arguing that it was manifestly excessive and that the Magistrate erred in revoking the suspended sentence and not suspending the six-week term. A psychiatric report was provided to the Court during the appeal.

The legal issues before the court were whether the sentence imposed by the Magistrate was manifestly excessive, whether the Magistrate erred in revoking the suspended sentence, and whether the Magistrate erred in not suspending the six-week term. The court considered the impact of Coleman's mental illness on his offending, and the potential benefits of psychiatric treatment in preventing future offending. The court also took into account the absence of any act of violence in Coleman's offending and the fact that an immediate custodial sentence was not in the interests of the community or the defendant.

The court concluded that the sentence imposed by the Magistrate was manifestly excessive and that the Magistrate erred in not suspending the six-week term. The court set aside the Magistrate's order revoking the suspended sentence and ordered that Coleman enter into a 12-month supervised good behaviour bond. The six-week imprisonment term for the driving while disqualified offence was to be suspended on Coleman's entry into a supervised good behaviour bond for a period of three years. The court ordered that psychiatric treatment be a term of the bond, in accordance with the directions of the supervising Community Corrections Officer. The bond was to be supervised for a period of two years.

Orders

Orders of the court

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Background

Background to the litigation

This appeal provides a further example of the difficulties that arise when the mentally ill are involved in the criminal law. The defendant has a mental illness. He has received and continues to receive medical and psychiatric treatment. His offending would appear to be related to his illness. His illness does not give rise to a mental incompetence defence though it does have a direct relevance to the assessment of his overall criminality. The evidence before this Court demonstrates that an immediate custodial sentence is not in the interests of the community, nor those of the defendant. His offending does not involve any act of violence. His offending relates to breaches of the Road Traffic Act 1961 (SA), the Motor Vehicles Act 1959 (SA) and then non-compliance with a bond.Background On 19 April 2007, Steven John Coleman, the defendant and appellant, was convicted of driving whilst disqualified and associated driving offences. A Magistrate on that occasion imposed a sentence of imprisonment of one month. That was suspended upon the defendant entering into a good behaviour bond of 18 months in the amount of $400.00. On 14 June 2008, the defendant was arrested and charged on complaint with the following offences:On the 14th day of June 2008 at SEAFORD in the said State, [the defendant] drove a motor vehicle namely a Mitsubishi sedan South Australian registered … on a road namely Commercial Road while there was present in his blood the prescribed concentration of alcohol as defined in S47A of the Road Traffic Act, 1961. Section 47B(1)(a) of the Road Traffic Act, 1961.This is a summary offence.It [was] further alleged that the concentration of alcohol was 0.194 grams in a hundred millilitres of blood. …On the 14th day of June 2008 at SEAFORD in the said State, [the defendant] drove a motor vehicle namely a Mitsubishi sedan South Australian registered … on a road namely Commercial Road while he was disqualified from holding or obtaining a licenceSection 91 of the Motor Vehicles Act, 1959.This is a summary offence. The police applied for the enforcement of the 19 April 2007 bond, pursuant to section 57(1) of the Criminal Law (Sentencing) Act 1988 (SA). The particulars were as follows:on the 19th day of April 2007 [the defendant] entered into a bond to which court file number MCCHB-CRIM-07-1077 refers …The applicant alleges the [defendant] has failed to comply with a condition of that bond in that he has not been of good behaviour in the manner which is attached hereto.A copy of the complaint, particularising the drink driving and driving disqualified offence of 14 June 2008 was annexed to the application. On 16 September 2009, the defendant appeared before the Magistrates Court in respect of the drink driving offence of 14 June 2008, as well as a further drink driving offence and breach of probationary licence conditions, which occurred the month before, on 10 May 2008. Following the entry of guilty pleas, the presiding Magistrate sentenced the defendant in respect of the drink driving and other driving offences. However, having regard to a psychologist’s report recommending that the defendant be “assertively psychiatrically treated”, the Magistrate refrained from sentencing the defendant in respect of the drive whilst disqualified offence of 14 June 2008, to allow for the defendant to engage in psychiatric treatment and to allow for the preparation of a further report dealing with the defendant’s psychiatric state. The Magistrate made it clear on that occasion that he would delay sentencing until the defendant had received treatment for his psychiatric condition.

Evidence

Evidence Before The Court

Counsel for the Police emphasised that there was no suggestion that the offending was connected to the defendant’s mental condition. He offered no compelling explanation for driving. His blood alcohol reading was high. It was further contended that there was nothing in the circumstances of the offending, as advanced by the defendant that suggested that the offending was anything but contumacious. It was said that the defendant’s apprehension for drink driving and driving whilst disqualified while subject to a good behaviour bond imposed for the offence of driving whilst disqualified, demonstrated a deliberate defiance by the defendant.[4] Finally, it was pointed out that there was nothing in the psychological assessment report of 26 June 2009, that provided any insight into the defendant’s decision to drive whilst disqualified, or the reasons for breaching the bond. [4] Police v Cadd (1997) 69 SASR 150 at 179 (Mullighan J); Police v Castelluzzo (1997) 193 LSJS 13; Bates v Police (1997) 70 SASR 66 at 73 (Perry J).Further evidence On the hearing of the appeal, counsel for the defendant asserted that the defendant had been receiving psychiatric treatment since the time of the Magistrate’s order on 16 September 2009. Counsel applied to adjourn the matter in order to obtain a report from the treating psychiatrist. That application was not opposed. On 26 March 2010, a report from the treating psychiatrist, Megan Ferris, was provided to the Court and the matter was called on for further hearing. Dr Ferris has been the treating psychiatrist for the defendant since early October 2009 and has seen him on four occasions since that time as an outpatient at James Nash House. Dr Ferris summarised the treatment of the defendant’s condition as follows:Since October 2009, [the defendant] has been appropriately and eagerly participating in engagement with Forensic Mental Health Services. This has involved regular outpatient appointments with myself at James Nash House and administration of regular anti-psychotic medication … for treatment of his condition. In addition, he has participated in psycho-education in regards to the diagnosis of Schizophrenia and learnt psychological techniques provided by home visits through the nursing staff from the Forensic Community Team. Resolution of his symptoms has also been possible through his abstinence from illicit substances which have been felt to further increase his risk of relapse. During the course of the report, Dr Ferris commented on the impact that the six days spent in prison in January had on the defendant: In January 2010, I note that [the defendant] spent a week in Yatala Labour Prison as ordered by the Court. He found the whole experience extremely distressing and suffered re-emergence of his psychotic symptoms, increased anxiety and deterioration in his mental state. Upon his release from Yatala Labour Prison, he has re-instated his anti-psychotic medication and contact with the Forensic Community Team and has resumed an improvement in his mental state.

Decision

Reasons for decision

GRAY J

In accordance with the power contained in section 38 of the Sentencing Act, I consider it appropriate that the defendant enter into a three year good behaviour bond suspending the six week term of imprisonment imposed in respect of the offence of driving whilst disqualified. That bond is to be supervised for a period of two years. It should be a condition of the bond that the defendant undergo psychiatric treatment in accordance with the directions of his supervising Community Corrections Officer.Conclusion The appeal is allowed. The order of the Magistrate revoking the suspended sentence is set aside on the defendant entering into a 12 month supervised good behaviour bond. It is to be a term of the bond that the defendant undergo psychiatric treatment in accordance with the directions of his supervising Community Corrections Officer. The term of imprisonment of six weeks with respect to the offence of driving whilst disqualified is to be suspended on the defendant’s entry into a supervised good behaviour bond for a period of three years. That bond is to be supervised for a period of two years. Again it is to be a term of the bond that the defendant undergo psychiatric treatment in accordance with his supervising Community Corrections Officer.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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