DARLING v POLICE No. SCGRG-98-1282 Judgment No. S6938

DARLING v POLICE
[1998] SASC 6938

OLSSON J. This is an appeal from a sentence imposed by a stipendiary magistrate in relation to various offences committed by the appellant; and orders made in respect of the breaches by him of two separate bonds to be of good behaviour.

On 16 April 1998, the appellant appeared before the learned magistrate and pleaded guilty to one count of illegal use, one count of driving without lights, one count of driving without due care, one count of driving whilst under disqualification, and one count of failing to comply with a direction to submit to a breath analysis.
On the same occasion he admitted having breached two separate bonds to be of good behaviour, which had been entered into by him. Those breaches arose from the offences already referred to.
One of the bonds was entered into on 7 July 1997. It related to an offence of driving whilst disqualified and two other associated charges of driving an uninsured and unregistered vehicle. The three offences had given rise to a sentence of 14 days’ imprisonment, suspended upon the appellant entering into a bond to be of good behaviour for a period of twelve months.
The other was entered into on 1st May 1997. This related to an offence of assault occasioning actual bodily harm, in relation to which the appellant was sentenced to a period of eight months’ imprisonment, suspended upon entry into a bond to be of good behaviour for a period of two years.
Having considered the contents of a pre-sentence report and also a report received from the Drug and Alcohol Services Council, the learned magistrate felt constrained to impose a single penalty of six months imprisonment in respect of all charges to which the appellant had pleaded guilty before him. He also revoked the suspensions of the previous custodial sentences, with the result that the appellant was liable to serve a total head sentence of 14 months and 14 days. In view of the personal circumstances of the appellant revealed by the pre-sentence report, he fixed a non-parole period of four months.
In essence, the appellant now complains that the sentence imposed in relation to the admitted offences was manifestly excessive and that the learned magistrate erred in not exercising his discretion to suspend it. He further complains that the learned magistrate erred in revoking the sentences previously suspended. An alternative contention was developed. It was said that, in any event, there should have been a reduction of the eight month sentence.
The appellant is a young person only 21 years of age. He already has a significant number of convictions as an adult. These include street offences, illegal use, resist police, assault occasioning actual bodily harm, drive with excess blood alcohol, drive without licence, drive without due care, driving under disqualification, and driving unregistered and insured vehicle. Certain of those offences, of course, related to the two bonds already referred to.
The offences now under consideration were committed at about 2.00 a.m. on 21 November 1997. The owner of the vehicle involved had parked it in the driveway of his home and locked it at about 11.30 p.m. the preceding evening. He was awakened, at about the time of the offence, by a noise outside the house. He looked out of the window and saw a male person near his vehicle. The owner woke his son and friends who were staying at the house. They all went outside. When they emerged they saw a male person, whom they recognized as the appellant, seated in the driver’s seat of the vehicle, pushing it down the driveway. The appellant was, in fact, a friend of the owner's son. The occupants of the house attempted to stop the appellant, but he managed to start the vehicle and drove off to the north, with no lights illuminated on the vehicle.
The vehicle was recovered a little later. The appellant was subsequently located and arrested. The vehicle had suffered substantial damage when it struck a kerb and was abandoned about two kilometres from the owner's home. When arrested, the appellant smelt strongly of alcohol. He refused to undergo a blood analysis test and denied all offences put to him by the police. He did, however, enter a timely plea when arraigned on the charges.
The report obtained from the Drug and Alcohol Services Council certified that the appellant did not suffer from alcoholism. On the other hand, the pre‑sentence report indicated that the appellant had a history of substance and alcohol abuse. It suggested that, by the age of 17, the appellant was a binge drinker; and that, by the time he was 18, he was smoking up to 20 cones of marijuana a day. Since May 1997, in relation to one of the bonds above referred to, the appellant has attended a number of courses and undergone counselling for drug and alcohol abuse.
The pre-sentence report suggests that, notwithstanding that situation, the appellant still drank on a binge basis. He had, on occasion, been absent from work for that reason. It was said that, on the day on which the illegal use occurred, he and a friend had consumed almost a full bottle of spirits.
The learned magistrate was told that the appellant had a troubled background. His father was violent and abusive; and separated from his mother when he was only 12 years of age. His father’s behaviour had a serious and adverse effect upon him. He was teased at school, did not do well, and suffered from eneuresis. He left school at the age of 15 and held continuous employment for about eight months. Thereafter, he seems only to have had occasional work. At the time of the offending he was in receipt of Social Security benefits and significantly in debt.
The probation officer reported to the learned magistrate that the appellant had been extremely conscientious in reporting, had satisfactorily engaged in the courses and counselling process and was generally cooperative.
There is no doubt that the learned magistrate carefully considered all relevant aspects of the reports and submissions placed before him. He particularly had regard to the recommendation by the probation officer suggesting a further period of supervision and counselling. He expressed considerable concern that there had been a previous, albeit not so serious, offence of illegal use; and that the offending conduct occurred notwithstanding that the appellant had, in the recent past, received the benefit of two other bonds. This was also his second offence of driving whilst disqualified. The fact that the two offences in question were second offences of their types automatically attracted very substantial maximum statutory penalties.
At the end of the day, and notwithstanding the appellant’s reported favourable response to bond conditions, the learned magistrate felt unable to conclude that there was proper reason, for the purposes of s58 of the Criminal Law (Sentencing) Act 1988, to decline to revoke the suspensions of the earlier custodial sentences. He also felt unable to suspend the custodial sentence which was plainly attracted by the most recent offending. However, he clearly recognized the various mitigating circumstances, personal to the appellant, by imposing what, by any standard, was a very short non-parole period.
On the hearing of this appeal Mr. Mancini, of counsel for the appellant, essentially relied upon and, to some extent, reiterated what had been put to the learned magistrate. Having emphasized, in his affidavit, the troubled early background of the appellant and the alcohol and substance abuse which appeared to have stemmed from it, he argued that insufficient regard had been had to the positive features identified in the pre‑sentence report - particularly the comments related to the response of the appellant to supervision. Reference was made in his affidavit to various family matters which had caused stress to the appellant and his family generally. He contended that the learned magistrate ought, in the circumstances, to have given the appellant a further opportunity of building on what progress had already been made towards rehabilitation. He emphasised that there was a qualitative difference between the matters before the court and the offence of assault occasioning actual bodily harm. He also submitted that there had not been a return to the earlier level of offending and that due regard should be had to the reported progress of the appellant towards rehabilitation. Finally, he argued that the sentence of six months imprisonment imposed was simply too severe for the offending in question, given the nature of the offences and the personal circumstances of the appellant, and that favourable consideration ought to have been given to reducing the period of the sentence for assault occasioning actual bodily harm in the event that its suspension was properly revoked.
It is to be noted that it had been put to the learned magistrate that the appellant is really unable to explain his conduct on the night in question, other than that he had been drinking, was anxious and worried about the fact that his brother had been arrested in New South Wales for a serious offence, and may well have been reacting to the strain that this was creating within the family.
Ms Lieschke, counsel for the respondent, refuted the validity of the submissions made on behalf of the appellant. It was pointed out that the commission of an offence by an offender who is already in the community on conditional liberty, by reason of a bond, is a clear circumstance of aggravation (Readman v The Queen (1990) 47 A Crim R 181 at 184). It was argued that the need, adequately, to punish the appellant for the quite serious offences committed, to protect the community from his criminal acts, and to deter both him and other persons from committing such offences, manifestly outweighed any factors personal to the appellant that could warrant a more lenient approach than that adopted. This was particularly so in light of his antecedent history. So it was, the respondent argued, it simply could not be established that the learned magistrate had fallen into error.
I have carefully considered all of the material placed before me and, in particular, the pre-sentence report and detailed affidavit sworn by Mr Mancini.
Whilst it is true that the nature of the offending which gave rise to these proceedings is of a different nature from that which gave rise to the earlier suspended sentence of eight months’ imprisonment, the fact of the matter is that, in their totality, the offences constituted a very serious course of conduct. On any view it must be accepted that they evidence a reversion by the appellant to criminal conduct comparable in culpability and gravity with the earlier offences (cf R v Buckman (1987) 47 SASR 303). This is particularly so when it is borne in mind that two of the counts related to repeat offences of their types. The appellant trespassed on private property, deliberately broke into the locked vehicle (and presumably hot wired it in some manner), drove it away despite efforts to stop him, drove it without lights and whilst intoxicated, and occasioned serious damage to it. Moreover, even taken alone, this was a blatant and contemptuous act of driving whilst under disqualification. All offences were committed only a little more than four months after the appellant received his second suspended sentence.
To suggest that this was not a situation which called for a substantial custodial sentence is to indulge in unreality. This is the more so as these types offence are prevalent and the factors of personal and general deterrence must be paramount considerations. I do not see how, given the appellant’s antecedent record and the fact that the offences were committed whilst he was subject to two bonds, it can seriously be suggested that the sentence imposed is excessive, notwithstanding allowance for his pleas of guilty.
The appellant had well and truly exhausted any entitlement to leniency. True it is that his personal background is unfortunate and that, until this offending, there were some signs of progress towards rehabilitation. However, these were more than fairly recognised by the extremely short and merciful non parole period which was fixed. The time has now arrived at which this appellant must face the stark reality that his anti-social conduct will not be tolerated, and that a continuance of it will inevitably lead to further custodial sentences. He has had the benefit of two suspended sentences in the recent past, but has failed to benefit from the leniency accorded to him. Additionally, I am unable to see any cogent reason why the term of the earlier sentence should be reduced. The mere fact that he has performed certain community service as a condition of its suspension, taken alone, is no warrant for such a course. (See R v Buckman (supra) at 315, referred to in Leech v Koko (1989) 51 SASR 131.) This is particularly so as the offence was committed in relatively recent times. As Bollen J pointed out in Wiltshire v Leech (1987) 136 LSJS 339 one important area to be considered was the extent to which the object of the prior suspensions had been achieved. In the instant case the offending so soon after them suggested that, in practical terms, they had been far from effective.
There is no demonstrated error on the part of the learned magistrate. The appeal must be dismissed.

[1998] SASC 6938

4 November 1998