DANIELE v South Australia Police

[2020] SASC 76

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

DANIELE v SOUTH AUSTRALIA POLICE

[2020] SASC 76

Judgment of The Honourable Chief Justice Kourakis (ex tempore)

30 April 2020

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

Appeal against sentence imposed by a Magistrate.

On 2 January 2020, an officer of the respondent observed the appellant driving a Harley-Davidson motorcycle, and wearing Rebels OMCG colours, in the vicinity of the On the Run service station at Kadina. The officer attempted to stop the appellant, but the appellant resisted, and a high-speed chase along the Copper Coast Highway ensued. On several occasions, the appellant crossed onto the incorrect side of the road. The efforts of the officer to stop the appellant continued until the officer had no option but to terminate the pursuit due to the appellant’s dangerous driving. At the time of offending, the appellant was disqualified from holding a driver’s licence for the period of 19 September 2018 until 18 September 2021.

On 17 January 2020, the appellant was sentenced to 13 months and five weeks imprisonment with a non-parole period of eight months for offences committed on 2 January 2020, and a breach of two suspended sentence bonds. The sentence was ordered to commence on 10 January 2020. The sentence was imposed on the appellant’s conviction following a plea of guilty to an offence of aggravated drive dangerously to escape police pursuit contrary to s 19AC(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (the aggravated drive dangerously charge).

On 30 January 2020, the appellant pleaded guilty to and was sentenced, by another Magistrate, on one count of basic assault to four months and one week imprisonment, to be served cumulatively on the sentence of 13 months and five weeks.

The appeal is brought on the following grounds:

1.    The effective starting point of 15 months imprisonment for the offence of aggravated driving dangerously to escape police pursuit was manifestly excessive.

2.    The non-parole period of 10 months was excessive having regard to the appellant’s personal circumstances.

3.    The Magistrate on 17 January 2020 had impermissible regard to a ‘rule of thumb’ that a sentence of 20% of the maximum penalty should be imposed for a first offender.

4.    The Magistrate on 17 January 2020 gave insufficient discount for the appellant’s plea of guilty.

Held per Kourakis CJ, allowing the appeal:

1.    Minds might differ as to whether the Magistrate’s sentence was too long. However, the failure of the Magistrate to explain the approach on which the sentence was based, renders the Magistrate’s reasons inadequate.

2.    There is no such sentencing principle that a sentence for a first sentence should approximate one-fifth of the maximum penalty.

3.    The Magistrate gave no reasons for not reducing the sentence by 40%, despite strong reasons for doing so.

4.    The sentence imposed by the Magistrate on the aggravated drive dangerously charge is set aside, and the appellant is re-sentenced 

5.    The appellant is sentenced to six months imprisonment with respect to the aggravated drive dangerously charge, to be served cumulatively on the revoked suspended sentences.

6.    The sentence of four months and one week imposed on 30 January 2020 for the offence of basic assault is to commence at the expiration of the sentence for the aggravated drive dangerously charge now fixed.

7.    The total head sentence is 13 months and six weeks. A non-parole period of seven months and two weeks is fixed to commence on 10 January 2020.

Summary Offences Act 1935 (SA) s 6A; Motor Vehicles Act 1959 (SA) s 91; Criminal Law Consolidation Act 1935 (SA) s 19AC, referred to.

DANIELE v SOUTH AUSTRALIA POLICE
[2020] SASC 76

Magistrates Appeal:         Criminal

1. KOURAKIS CJ:     This is an appeal against sentence.  On 17 January 2020, the appellant was sentenced by a Magistrate to 13 months and five weeks imprisonment with a non-parole period of eight months for offences committed on 2 January 2020 and the breach of two suspended sentence bonds.  The sentence was ordered to commence on 10 January 2020.

2. The particulars of the suspended sentences, which were revoked, were as follows. On 19 November 2018, the appellant committed the offence of threatening unlawful violence contrary to s 6A of the Summary Offences Act 1935 (SA). He was convicted and was sentenced to three months imprisonment which was suspended upon him entering a suspended sentence bond on 12 June 2019. Further, on 2 January 2019 the appellant committed the offence of drive disqualified contrary to s 91(5) of the Motor Vehicles Act 1959 (SA). He was convicted and sentenced to five weeks imprisonment which was also suspended.

3. The sentence of imprisonment against which the appellant appeals was imposed on his conviction following a plea of guilty to an offence of aggravated drive dangerously to escape police pursuit contrary to s 19AC(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (the aggravated drive dangerously charge). The maximum period of imprisonment prescribed for that offence is five years.

4. On 30 January 2020, the appellant pleaded guilty to and was sentenced, by another Magistrate, on one count of basic assault to four months and one week imprisonment, to be served cumulatively with the aforementioned 13 months and five weeks.  The non-parole period was extended to 10 months.  The appellant has appealed against that sentence, but only for the purpose of allowing this Court to make any necessary consequential variations to that sentence should he succeed on his appeal against the sentence imposed on 17 January 2020.

5. The appeal is brought on the following grounds:

   1The effective starting point of 15 months imprisonment for the offence of aggravated driving dangerously to escape police pursuit is manifestly excessive.

   2The non-parole period of 10 months was excessive having regard to the appellant’s personal circumstances.

   3The learned sentencing Magistrate on 17 January 2020 had impermissible regard to a ‘rule of thumb’ that a sentence of 20% of the maximum penalty should be imposed for a first offender.

   4The learned sentencing Magistrate on 17 January 2020 gave insufficient discount for the appellant’s plea of guilty.

6. For the reasons that follow I allow the appeal.

7. On 2 January 2020, the appellant was driving a white Harley-Davidson motorcycle and wearing Rebels OMCG colours.  He was seen by a motorcycle police officer in the vicinity of the On The Run service station at Kadina.  The officer attempted to stop the appellant but the appellant resisted and sped off.  A high-speed chase ensued along the Copper Coast Highway with speeds estimated at 170 km/h.  On several occasions the defendant crossed onto the incorrect side of the road.  On one of those occasions the appellant was confronted by an oncoming vehicle, but he managed to swerve back onto the correct side of the road.  A collision was avoided without the oncoming motorist taking any evasive action.  The pursuing police officer was left with no option but to terminate his pursuit because of the appellant’s dangerous driving.  The registration plate of the motorcycle was partially concealed by the rear mud guard, however, the pursuit had been recorded on a police helmet camera and the appellant was later arrested.  At the time of the offending the appellant was disqualified from holding a driver's licence for the period from 19 September 2018 until 18 September 2021.

8. The appellant is 26 years old.  He left school after completing year 10 and commenced work at McDonalds.  Since then he has been employed in manufacturing and demolition and has operated a car dealing business.  He is currently in partnership in a scaffolding business.  In a letter received by the Magistrate, the appellant’s business partner Mr Pullino, who was aware of the appellant’s offending, hoped that the appellant might nonetheless soon return to work in their business.  Mr Pullino described the difficulties he faced in running that business on his own.  The appellant's responsibilities in the business were both managerial and operational.

9. The appellant’s father passed away in 2010 of non-Hodgkin's lymphoma.  The appellant had enjoyed a close relationship with his father and did not respond well to his bereavement.  He drank heavily, ignoring his mother’s advice to obtain professional help to deal with his grief, and has continued to struggle with alcohol and illicit substance abuse.  His mother has, however, continued to provide support to her son and attended at the Magistrates Court for that purpose.

10. The appellant’s grandfather assumed the role of a father figure to the appellant after his father’s death.  The appellant and his grandfather spent much time together, particularly on family holidays at Wallaroo.  In April 2019, the appellant’s grandfather was diagnosed with epithelioid mesothelioma.  To maximise his quality of life he has refused chemotherapy.  He has already surpassed his medically predicted life expectancy.  The appellant’s grandfather has also assumed the role of a father figure to the appellant. They spend much time together, particularly on family holidays at Wallaroo.

11. The appellant has a long antecedent criminal history, including a number of counts of driving whilst disqualified, and more serious offending including drug trafficking for which he has been imprisoned.

12. The appellant pleaded guilty on his first court appearance.  He expressed remorse in a letter provided to the court.

13. During the course of sentencing submissions there was an exchange between the Magistrate and the appellant’s counsel on whether a partially suspended sentence was a realistic option having regard to the length of the likely head sentence.  In the course of that exchange, the Magistrate said:

    Well if you look at across the board offending and what the Supreme Court says about what percentage ought to be imposed for a first offender then it's something in the order of 20%, so we start off at 12 months anyway and this is not, in my view, the sort of matter that deserves such a low percentage. 

14. The appellant’s counsel questioned the approach postulated by the Magistrate of applying a particular percentage to the maximum sentence.  The Magistrate responded that he was bound by the Supreme Court to take that approach.  Counsel submitted that he knew of no authority to that effect.  The Magistrate then referred to a ‘rule of thumb’ which emerged, the Magistrate thought, from a range of authorities on various offences.

15. In his remarks on penalty, the Magistrate summarised the circumstances of the offence of aggravated drive dangerously.  The Magistrate noted that the appellant had never contested the charges and had entered guilty pleas to the aggravated drive dangerously charge on the very first occasion on which he had appeared.  The Magistrate accepted that the appellant was entitled to a discount of up to 40%.  The Magistrate then summarised the appellant’s personal circumstances, before concluding:

    I would have sentenced, given the maximum sentence prescribed by parliament, the defendant to a term of imprisonment for count 1 of 15 months but which I reduce to 10 months. That is to be added to the three months and five weeks making a total head sentence of 13 months and five weeks.

16. The Magistrate fixed a non-parole period of eight months, both the sentence and non-parole period commencing on 10 January 2020.

17. I allow the appeal on two grounds.  First, even though remarks made by judicial officers in the course of submissions are not reasons, and therefore cannot be relied on as a manifestation of error, in this case after the exchange with counsel earlier referred to, it was incumbent upon the Magistrate to explain how he arrived at the head sentence which he imposed.  In the exchange counsel had, in effect, submitted that there was no authority for the proposition that a sentence for a first sentence should approximate one-fifth of the maximum penalty.  That submission is plainly right.  There is no such sentencing principle.

18. A statistical study of sentences imposed for a particular offence, a class of offences, or all offences, could of course reveal an average, a minimum, a maximum, a median, a most frequently imposed or any number of other statistical measures for the sentences studied.  I know of no such universal or comprehensive study for this particular offence or for all offences generally.  Statistics are sometimes retrieved on sentence appeals for particular offences over a limited period.  However, appeal courts have always warned against either any use of, or placing too much weight on, statistical analysis of that kind.

19. Any statistics which may be derived from such a study are, in any event, the result of applying sentencing principles, not mathematic formulae.   Whatever such study might show, it would be to fundamentally depart from sentencing principle, to adopt, as a starting point, a statistical measure derived from that study.  Indeed, to do so would then skew sentencing and the resulting sentencing patterns would be very different to those from which the statistical measure was obtained. 

20. As it transpired, the Magistrate’s sentence was, as he had anticipated in the exchange, a little more than one-fifth of the sentence, because of the more serious view his Honour had foreshadowed taking of the appellant’s offending.  In those circumstances, it was incumbent on the Magistrate to explain whether he arrived at the notional sentence by applying the supposed principle to which his Honour had referred, or whether he had approached the matter, correctly, by weighing the competing sentencing considerations against the yardstick of the maximum penalty.  If it were the former, then plainly an error of law would have been exposed; if it were the latter then the only question would be whether the sentence was manifestly excessive.  The failure to explain the approach on which the sentence was based, renders the Magistrate’s reasons inadequate.

21. I would also allow the appeal on the ground that there was no good reason in the circumstances of this case not to apply the maximum reduction for the appellant’s early plea of guilty; it was a plea of guilty given at the earliest possible opportunity and only several weeks after the offence.  Neither the gravity of the offence, nor the need for preventative detention was so great as to justify denying the appellant a significant part of the statutorily available reduction.  Again, the Magistrate gave no reasons for not reducing the sentence by 40%, despite the strong reasons for doing so.

22. On resentencing the appellant, I accept that the offence is a serious one, however, in this particular case the distance covered and the time taken was not great.  That may well have been a result of the police officers’ cautious approach in calling off the pursuit.  Whatever the reason for the relative shortness of the distance and period of time, the objective fact is that the risk to others was reduced.  Moreover, it was the appellant who was on a motorbike.  The greatest risk in his conduct was to the police officer in pursuit and to himself.  I accept of course that drivers of cars who may have taken evasive action were also put at risk, but as I earlier observed, no such action was necessary in this case.

23. I have also taken into account in mitigation of the sentence which might otherwise have been imposed, the importance of giving the appellant an opportunity to continue his rehabilitation by resuming his part in the scaffolding business.  Engagement in constructive employment will assist in his rehabilitation and, of course, be a long-term benefit to the public, if it is successful.  I have also taken into account, as a matter of mercy, and because it may also help the appellant in his longer- term rehabilitation, that a shorter sentence than might otherwise have been imposed may give him an opportunity to spend some time with his grandfather.

24. I commence with a notional sentence of 10 months, which I reduce to six months having regard to the appellant’s early plea of guilty; I would order that the sentence of six months be served cumulatively, as did the Magistrate on the revoked suspended sentences of three months and five weeks respectively.  I order that the sentence imposed for the offence of basic assault imposed on 30 January 2020 by another Magistrate, commence at the expiration of the sentence that I have now fixed.  The total head sentence is 13 months and six weeks.  I would fix a non-parole period of seven months and two weeks to commence on 10 January 2020.

25. Your appeal has been successful basically because of what might be described as a technical error of law in the way the Magistrate proceeded.  Minds might well differ as to whether the Magistrate’s sentence itself was too long, or whether my sentence is too low, but whatever the case be, you have been given some opportunity to get out and get on with your life a little bit earlier than would otherwise have been the case.  What use you make of it is up to you, but you must realise that you have now reached the age where you have to take responsibility for how you respond to bereavements and losses of people who are important to you. You taking responsibility is the best way that you can honour those two important men in your life, and associating with organisations like that whose colours you were wearing on this occasion, is no way to honour them or help yourself.