Contreras v Police No. Scciv-00-1121

CONTRERAS v POLICE
[2001] SASC 100

Magistrates Appeal

1................ DUGGAN J..... The appellant has appealed against a sentence imposed in the Elizabeth Magistrates Court. The learned magistrate imposed a global penalty pursuant to the Criminal Law (Sentencing) Act, 1988 s 18A for a number of offences committed over the period of time from 25 October 1998 to 9 January 2000.

When the matter came before me there was confusion as to the number of offences included in the global penalty. I found it necessary to obtain a report from the learned magistrate and I accept that the appellant was sentenced in relation to nine matters, the details of which are set out in the following table:

“DATE OF OFFENCE	DETAILS OF OFFENCE
3/3/99	1. Illegal use of motor vehicle; 2. Drive under influence of drug; 3. Dangerous driving; 4. Drive disqualified.
17/1/99	Possess heroin
15/1/99	Illegal interference with a motor vehicle
18/1/99	Illegal interference with a motor vehicle
9/1/2000	False name
25/10/98	Drive disqualified”

At the hearing of the appeal Mr Vadasz, for the appellant, submitted that the magistrate’s sentence was confined to the offences which took place on 3 March 1999. The magistrate stated in her report that she sentenced the appellant on all matters referred to in the above table and that she imposed a global sentence in respect of all the listed offences. The endorsement on the consolidated file MCPAR-99-2016 supports this assertion. Although the offences were not listed in the sentencing remarks, as I think they should have been, it is to be inferred from her Honour’s remarks that the offending for which the appellant was being sentenced extended beyond the events of 3 March 1999 and included the other offences in the table. The same inference can be drawn from the remarks which her Honour made at an earlier hearing on 25 February 2000.
Mr Vadasz drew my attention to the court’s Certificate of Record for 25 February 2000 which records that various orders were made in relation to the offences which were committed on days other than 3 March 1999. He said the record suggests that the appellant was convicted without penalty on these offences on 25 February 2000. I agree that the record is somewhat confusing in that it records costs orders on that date, but I accept the magistrate’s explanation that the appellant was not sentenced for any offences until an adjourned date, namely, 29 September 2000.
The appellant entered pleas of guilty to the charges on 25 February 2000. One of the victims of the offences committed on 3 March 1999 then gave victim impact evidence. At the conclusion of this hearing the magistrate released the appellant on bail for a period of six months with his mother as guarantor and subject to various conditions relating to supervision. It was explained to me that the release on bail was by way of a “Griffiths remand” (Griffiths v The Queen (1977) 137 CLR 293). The purpose of the remand was to delay sentence for a period during which the appellant’s conduct could be assessed and then taken into account at the time of sentencing. The appellant was told that any sentence of imprisonment which was imposed would be suspended if he kept to the conditions of bail for the six month period. However, he was given to understand that an immediate custodial sentence would result if he breached any of the conditions.
On 4 August 2000 the Department of Correctional Services reported to the magistrate that the appellant had been an excellent weekly reporter for the first three months of his bail bond, but that his mother had then reported that she wanted to withdraw as guarantor of the bond because the appellant was not living at home and that, according to her, his behaviour had been unsatisfactory. The appellant had also stopped reporting to the Department of Correctional Services. The failure to reside with his mother and the failure to report were breaches of the conditions of bail.
On 4 September 2000 a warrant of apprehension was executed on the appellant and on 29 September 2000 he appeared before the learned magistrate for sentencing. He was sentenced to imprisonment for three years and five months on the nine offences referred to above and a non-parole period of 14 months was imposed.
The appellant’s counsel has argued that the head sentence and non-parole period are manifestly excessive and that the magistrate erred in refusing to suspend the sentence. Other points raised by counsel are dealt with below.
It is necessary to say something about the offences to which the appellant pleaded guilty. On 18 November 1997 the appellant’s driver’s licence was suspended from 18 November 1997 to 11 May 1999. On 25 October 1998 the appellant drove a motor vehicle whilst disqualified. Then on 15 January 1999 he illegally interfered with a motor vehicle. On 17 January 1999 he committed the offence of possess heroin and on the following day he again illegally interfered with a motor vehicle.
The appellant committed a number of offences on 3 March 1999, namely, illegally using a motor vehicle, driving under the influence of a drug, dangerous driving and driving whilst disqualified. On this occasion he illegally used a vehicle which he took from the car park of a school at Parafield Gardens. While driving the vehicle at high speed he crashed through the fence of a house and the vehicle smashed through the wall and a window of the house narrowly missing some of the occupants including a young child. The appellant was affected by drugs at the time. The vehicle was a write-off and damage amounting to approximately $25,000 was caused to the home and contents. The final offence of providing a false name to the police took place on 9 January 2000.
The magistrate was advised that the appellant has a prior history for offences of dishonesty including housebreaking and illegal use of vehicles. Furthermore, he had been convicted on at least six previous occasions of driving without a licence or driving whilst disqualified.
The appellant was 24 years of age at the time he was sentenced. His counsel told the magistrate that the appellant had not committed any offences during the period of the remand. Counsel said the appellant had left his mother’s address because of a disagreement with her. In an affidavit filed on the hearing of the appeal the appellant claims that he had informed the Department of Correctional Services of his change of address. He did not answer the allegation that he failed to report to the department after a period of time.
One of the complaints made by the appellant is that he was told by the magistrate prior to the Griffiths remand being granted that a greater sentence would be imposed if he did not adhere to the conditions of the remand. The transcript records that when the magistrate was explaining the Griffiths remand prior to releasing the appellant on bail she said:
“A Griffiths remand is where someone is given an opportunity to demonstrate that they are genuine and they are told at the start of it that if there is any offending in that six month period or any going back to old ways then they will get a sentence which is longer than any sentence that would be imposed if they were sentenced on the spot. Alternatively if they complete that period of time the longer sentence will be suspended, a suspended sentence. In other words they get a period like six months to discover, demonstrate whether they’re for real or not.”
It seems to have been in the magistrate’s mind that a longer sentence than she had intimated would be appropriate in the case of a breach of the conditions of the Griffiths remand. In my view this demonstrates an error of sentencing principle. The purpose of such a remand, as I understand it, is that it provides an opportunity for a defendant to demonstrate an attitude towards reform, at least during the period of the bail agreement. I am conscious of what Perry J said in R v McMann (1997) 70 SASR 1 at 9; the appellant’s behaviour during the period of the remand is a relevant factor to be taken into account when sentencing. However, in my view, it is inappropriate to nominate a period of imprisonment as being appropriate prior to ordering the Griffiths remand and then to intimate that the sentence will, as a matter of course, be longer if the bail bond is breached.
At a later stage in the hearing at which the Griffiths remand was ordered the learned magistrate is reported as saying:
“In relation to this matter for the whole of the offending committed in that year long period I would be looking at a head sentence of two years and 6 months with a non-parole period of 18 months.”
Later still her Honour said:
“In relation to this matter the defendant will be told here and now that if you breach any single one of the conditions of your release into the community you are on a one way ticket to Yatala for three years and 6 months.”
In the report provided by the magistrate her Honour said that she did not think the remarks in the first sentence were reported accurately. She said it is probable that a word is missing and that she said “In relation to this matter but for the whole of the offending committed in that year long period, I would be looking at a head sentence of two years and six months with a non-parole period of 18 months”.
The magistrate said she was drawing attention to the gravity of the offences on 3 March 1999 which she thought were serious enough, in themselves, to merit the penalty of two years and six months. She said her recollection is supported by a note she made on the file on that day:
“Deft told s 18a head sentence of 3 yrs 6 months, npp 2.5 yrs will be imposed on 25/8. The only question will be suspension; it will be suspended if the deft successfully completes the Griff adjt conditions.”
Whilst accepting her Honour’s explanation, it does not overcome the difficulty caused by the earlier remark which suggested that the sentence would be longer if the appellant breached the bail conditions. The matter is further confused by her Honour’s sentencing remarks after the appellant had been apprehended and brought back to the court. She said:
“I remain of the view that a total head sentence of 3 and a half years imprisonment is the appropriate sentence for the whole of the offending. At the time when the Griffiths adjournment was given I was of the view that were the defendant to breach, the appropriate number would be 2 and a half years.”
These circumstances have raised sufficient concern in my mind to lead me to set aside the sentence and consider the sentencing discretion afresh. There is a further reason for setting aside the sentence. I have said that the learned magistrate imposed a global penalty pursuant to the Criminal Law (Sentencing) Act in respect of all matters. The offences included a charge of dangerous driving contrary to the Road Traffic Act, 1961 s 46. The appellant was to be sentenced for this offence on the basis of a first offence of its type and the penalty was restricted to a fine of not less than $300 and not more than $600.
In cases where a global term of imprisonment is imposed the individual offences must be punishable by a term of imprisonment. (Hermel v Police (2000) 76 SASR 336; Sideris v Police [2001] SASC 90). Furthermore, the learned magistrate attached particular significance in her sentencing remarks to the offending on the occasion of the dangerous driving incident. It was, of course, appropriate to view the dangerous driving seriously, but it could not be taken into account in determining the length of the term of imprisonment. The other offences committed as the same time as the dangerous driving could have that effect.
I am also concerned that insufficient allowance was made for the time the appellant spent in custody prior to being sentenced. After the appellant was arrested on the warrant for breach of his bail conditions, he spent a month in custody before being sentenced. When sentencing the appellant on 29 September 2000 her Honour said that the appropriate non-parole period was 15 months, but she acknowledged that this should be reduced by reason of the month which the appellant had spent in custody immediately prior to being sentenced.
However, it is not in dispute that the appellant was in custody for a period of two months prior to the granting of the Griffiths remand. Her Honour referred to this on the occasion when she ordered the Griffiths remand, but did not make mention of it when imposing sentence. There is some doubt, therefore, as to whether this further period was taken into account when fixing the head sentence and the non-parole period. The appellant also spent a period of one month in custody waiting for the bail agreement and guarantee to be finalised. Her Honour did not mention this period when sentencing the appellant. In any event, these periods in custody, totalling four months, are to be taken into account by me in fixing the head sentence and non-parole period.
The offending took place over a considerable period of time. During this period the appellant demonstrated a clear contempt for the law. In particular, he took no notice of the fact that his licence had been disqualified. His previous record demonstrates the same contempt for orders of the court. The appellant has not responded to leniency in the past and he is of an age at which he must realise that punishment will follow for breaches of the law. In my view a custodial sentence is appropriate and there is no reason why it should be suspended.
I allow the appeal. The sentence imposed by the learned magistrate will be set aside. I take into account the period of four months which the appellant spent in custody. I impose one head sentence and a non-parole period pursuant to s 18A of the Criminal Law (Sentencing) Act in relation to all matters in the table except the offence of dangerous driving. The head sentence will be imprisonment for one year and eight months. I fix a non-parole period of nine months. The sentence and the non-parole period will commence on 29 September 2000. I impose a fine of $400 in relation to the offence of dangerous driving. The appellant will be disqualified from holding a driver’s licence for a period of 12 months from 29 September 2000. The fees and levies imposed by the learned magistrate will remain as part of the sentence.

[2001] SASC 100

3 April 2001