Director of Public Prosecutions (Cth) v Gruhl No. Scgrg-98-913 Judgment No. S6899

DIRECTOR OF PUBLIC PROSECUTIONS v GRUHL

[1998] SASC

Magistrates Appeal

LANDER J

This is an appeal by the Commonwealth Director of Public Prosecutions (DPP) against a sentence imposed by a court of summary jurisdiction.
The respondent was charged, both on information and complaint, with a number of offences under the Civil Aviation Act.
Not all of the offences charged on the information were proceeded with and no evidence was led in respect of some of those counts and it may be taken that they were dismissed.
The respondent also signed a notice under s16BA of the Crimes Act 1914 in relation to two other counts under the Civil Aviation Act which he asked to be taken into account at the time of his sentencing.
The respondent was charged on information with four counts of flying an aircraft without a valid maintenance release, contrary to s20AA(4) and s20AA(5) of the Civil Aviation Act 1988; two counts of flying an aircraft without a pilot’s licence contrary to s20AB(1) of the Act; and one count of performing maintenance on an aircraft, namely removing panels in his aircraft and removing the cylinder head temperature gauge, without authorisation contrary to s20AB(2)(a) of the Act.
In relation to the complaint, the respondent was charged with two counts of low flying contrary to reg281(2) and reg157(a) of the Civil Aviation Regulations.
He pleaded guilty to those matters on the information and the complaint.
As I have already mentioned he also signed a notice under s16BA of the Crimes Act in relation to a further count of flying an aircraft without a valid maintenance release and a further count of flying an aircraft without a pilot’s licence. He admitted his guilt in respect of those offences and asked that they be taken into account in sentencing.
All of the matters were dealt with in the Magistrates Court. The DPP agreed, pursuant to s4J of the Crimes Act, that the indictable offences on the information could be heard by a court of summary jurisdiction.
On the respondent pleading guilty to the matters on the information to which I have referred, the matters on the complaint and admitting his guilt in relation to the matters mentioned in the notice under s16BA, the remaining matters on the information were not proceeded with and, as I have said, may be taken to have been dismissed.
The learned Magistrate convicted the respondent in relation to the counts on the information and imposed one penalty of four months imprisonment. She released the respondent immediately on his entering into a recognisance of the sum of $100 to be of good behaviour for a period of twelve months.
In relation to the two counts on the complaint she ordered that the respondent enter into a bond in the sum of $50 requiring him to be of good behaviour for a period of six months.
The two bonds thus had a common period of six months.
The respondent had been sentenced to imprisonment on 3 July 1995 for twenty-one months for driving whilst under the influence and driving whilst disqualified. At that time he was also on parole and his parole was cancelled, the cancelled parole amounting to seven months and ten days. He thus received a head sentence on 3 July 1995 of twenty-eight months and ten days imprisonment. A non-parole period of seventeen months was set. He served the whole of that non-parole period and was released on parole on 2 December 1996. His parole term expired on 12 November 1997. He was therefore on parole at the time of the commission of these offences. The unexpired portion of the parole period at the time of the commission of these offences was seven months and six days.
As a result of information received from an employee of Civil Aviation Safety Authority (CASA) the Parole Board issued a warrant for the respondent’s arrest pursuant to s76 of the Correctional Services Act. The Board considered that the allegations made by CASA constituted a possible breach of a condition of parole, viz that the respondent be “of good behaviour, keep peace towards all persons and do not commit a breach of the law”. The warrant was executed on 24 June 1997. After his incarceration the respondent was interviewed by the Board on two occasions, 9 September 1997 and 28 October 1997. The respondent refused to advise the Board how he would plead in relation to these charges. Of course, at that stage, no charges had in fact been brought.
In a letter written to the appellant the Parole Board said:
“The Board was unable to deal with the breach and resolved to adjourn the matter pending a decision of the Court. Mr Gruhl was ordered to remain custody (sic) to await this outcome.
Under the provisions of the Correctional Services Act, a parolee cannot be held in custody for a period exceeding six months for an alleged breach of parole. He was therefore released from the Parole Board warrant on 23 December, 1997 having served the maximum period permissible by law pursuant to Section 74 of the Correctional Services Act.
Should Mr Gruhl be imprisoned by the Court for any offence committed during his parole term, his parole is automatically cancelled pursuant to Section 75 of the Correctional Services Act notwithstanding the fact that his parole expired on 12 November, 1997. The cancellation period is calculated to commence from the date of commission of the earliest offence until his parole expiry date of 12 November, 1997. Any further sentence imposed by the Court is served cumulatively upon the balance of cancelled parole.
It should be noted that the six month term of imprisonment served by Mr Gruhl while awaiting proceedings before the Parole Board must be deducted from the total outstanding balance of parole in accordance with R v Panagiotidis and in the event that his parole is cancelled by further imprisonment.”
It was these offences which gave rise to the Parole Board causing the appellant to be taken into custody and serving six months imprisonment. No longer period than six months could have been served (s74(1)(b) Correctional Services Act).
It was submitted by the respondent that the Parole Board’s action was precipitous and that the Board should have awarded a plea or a decision of the Court. I need not decide that matter. I need not comment upon whether it was appropriate for the appellant to be detained for the maximum period allowed under the Act for a breach of condition of the parole, in circumstances where it was not established that he had breached his parole.
In due course it was established by his pleas that he had breached a condition of his parole but that was after he had served six months imprisonment.
It cannot be overlooked that the respondent was called upon to serve a sentence of imprisonment by reason of the commission of these offences. I will return to that matter.
In a later letter the Board advised that the unexpired balance of the respondent’s parole, after deducting the six months served was one month and six days.
The respondent would become liable to serve the unexpired balance if he was sentenced to imprisonment and the sentence was not suspended [s75(1)(a) Correctional Services Act].
The sentence imposed by the learned Magistrate was suspended, i.e. the sentence of imprisonment did not have to be served immediately. Therefore the respondent is not presently obliged to serve the unexpired parole. If the sentence stands and the bond is observed he will never be called upon to serve the unexpired parole. If, on the other hand, he becomes liable to serve a period of imprisonment, the unexpired portion of the parole period will have to be served.
The Prosecutor raised two matters in its notice of appeal. First the DPP complained that the learned Magistrate erred in imposing one penalty in respect of the counts on the information to which the respondent pleaded guilty. It is claimed that “the imposition of one penalty was not authorised by s4K(3) and s4K(4) of the Crimes Act 1914”. At the hearing of the appeal the DPP abandoned the first ground of appeal. I am therefore not required to consider whether the learned Magistrate was entitled to impose only one sentence on the appeal.
Secondly, it was claimed that the learned Magistrate erred in imposing a sentence that was manifestly inadequate in respect of both the head sentence of four months and the order for immediate release.
The appellant’s outline of argument also included a submission that the learned Magistrate erred in requiring the respondent to enter into a bond in respect of the two offences to which he pleaded guilty on the complaint. It was submitted that to require him to enter into a bond over a period of six months when there was a concurrent bond for a period of twelve months effectively meant that no penalty was imposed in relation to the offences under the complaint.
Whatever the attraction of that argument, the fact is that the appellant did not raise it in the notice of appeal, or any time prior to providing an outline of submissions, that the appellant complained of that aspect of the sentence. The notice of appeal was restricted to complaints relating to the sentence imposed upon the information.
The appellant, in my opinion, ought to be confined to the grounds of appeal advanced. It would not be appropriate to consider this submission absent a ground of appeal.
In the end, therefore, the only matter which needs to be considered on this appeal is whether the sentence on the information was manifestly inadequate.
A person may not fly an aircraft unless that person is licensed. A person may not fly an aircraft unless that person has a current medical authority to fly an aircraft. All aircraft are obliged to be registered. An aircraft cannot be flown unless there is in existence a current maintenance release in respect of that aircraft. For an aircraft of the kind involved in these offences a maintenance release is required every twelve months or 100 hours of flying time, whichever occurs first.
The respondent has never held a pilot’s licence and has only ever had three hours of flying training. He obtained a temporary medical certificate on 10 February 1997 but that expired on 10 April 1997. The aircraft, which is the subject of these charges, carries the registration VH-EKO. The respondent became the registration holder for that aircraft on 11 August 1994. On becoming the registration holder, CASA sent a letter to him on 11 August 1994 informing him of his responsibilities for maintenance, air worthiness and other issues.
The maintenance release on this aircraft expired on 23 April 1991 or at 4824.5 flying hours, whichever occurred first. The aircraft did not have a valid maintenance release after 23 April 1991. Records indicate that the last authorised maintenance carried out on the aircraft was on 7 June 1990.
In relation to the first count of operating an aircraft without a maintenance release and the first count of flying an aircraft without a pilot’s licence, on 6 April 1997 the respondent’s aircraft was sighted parked off the side of the runway at Jamestown Aerodrome. The respondent was seen walking through the main gate to the aerodrome towards his aircraft. On the way towards his aircraft he had a conversation with a witness and told the witness that he was flying to Booleroo. The respondent was seen getting into the aircraft and taking off. He was the only person in the aircraft at the time.
In relation to count five on the information of flying an aircraft without a valid maintenance release and count one on the complaint of flying over a town at a height of less than 1,000 feet, on 21 May 1997 the respondent’s aircraft was sighted by a witness at Auburn flying at a low altitude of 300 to 400 feet above ground level. The witness, who is a motor mechanic, stated that the engine was misfiring as it flew over him.
The third count of flying an aircraft without a valid maintenance release and the second count on the complaint of flying over a town of lower than 1,000 feet occurred on Sunday 1 June 1997 between three o’clock and 3:45 pm. The respondent’s aircraft was sighted flying low over the township of Clare at a height of about 150 feet above ground level. The aircraft was also seen flying at a similar height near the Main North Road over Auburn.
In relation to count thirteen, which was the charge of carrying out maintenance on an aircraft without being permitted by the Civil Aviation Regulations to do so, the respondent admitted to an investigator, who interviewed the respondent on 19 June 1997, that he had removed panels on the aircraft between the radio panel to effect repairs to the cylinder temperature gauge. The regulations prohibit a person who does not have a current pilot’s licence from carrying out any maintenance whatsoever to the aircraft. In so doing the respondent thereby committed the offence.
In relation to the two counts on the s16BA notice, sometime between 15 June 1997 and 24 June 1997 the respondent piloted the aircraft and landed in a paddock at Everard. He asked the witness if he could leave the aircraft there for a couple of days. The aircraft was located by CASA on 15 August 1997 at Everard.
The offences mentioned on the s16BA notice were committed in circumstances where about eleven days before, on 4 June 1997, an inspection of the aircraft had been carried out by the authorities and numerous defects had been noted. Aircraft survey reports were prepared which detailed the defects which had been observed. They were sent to the respondent. In addition the respondent attended the Parafield Air Worthiness Section on 6 June 1997 and was told of requisitions by CASA. He then attended a maintenance organisation on the same day and spoke to a representative thereof who advised him of the requirements. CASA followed up those interviews with a letter on 10 June 1997 which the respondent must have received because he responded to it.
On 11 June 1997, a letter was sent to the respondent suspending the certificate of air worthiness. The letter also stated the requirements necessary to make the aircraft air worthy.
The DPP’s case was that the respondent’s conduct was reckless. On one of the occasions mentioned in the counts the respondent landed without permission. The danger of landing in paddocks is that there may be livestock in the landing path or other obstacles not visible from the air. There is also the possibility of power lines which may not easily be seen.
In relation to the matters where the aircraft was seen to be flying low the DPP submitted to the Magistrate that flying low over populated areas put the public and property at risk. Other factors referred to in respect of those matters were that the respondent was a non-licensed pilot, with little or no flying training, without a current medical authority to fly and without current aviation documentation.
The DPP also claimed that the offences were committed in an aircraft with a poor maintenance history and doubtful mechanical reliability.
The DPP’s submission to the learned Magistrate was that the defendant’s conduct was wilful and serious and constituted a potential danger to the public.
It was further claimed that the respondent was not co-operative in the investigations.
As I have said, three different offences were included on the information, namely flying an aircraft without a valid maintenance release; flying an aircraft without a pilot’s licence; and maintenance on an aircraft without authorisation, each of which carries a penalty under the Civil Aviation Act of two years imprisonment.
However, the matters were heard in a court of summary jurisdiction and in those circumstances the court was limited to imposing a sentence of imprisonment for a period not exceeding twelve months or a fine not exceeding sixty penalty units ($6,600).
In relation to the offences on the complaint the regulations provide for a fine not exceeding $5,000.
It was submitted to the learned Magistrate that she was entitled to impose one penalty for the four counts of flying an aircraft without a valid maintenance release and one penalty for the two counts of flying an aircraft without a pilot’s licence and one penalty, of course, for the count of performing maintenance without authorisation.
In submissions on penalty the Director of Public Prosecutions informed the learned Magistrate that the purpose of the Civil Aviation Act and the regulations made under the Act are to ensure that proper and adequate standards of safety are complied with by those who fly an aircraft. It was submitted that safety was not only critical to those who fly and travel on aircraft but also to the public at large. It was submitted that the offences to which the respondent had pleaded have significant safety ramifications. It was important that the aspects of general deterrence should not be overlooked in the sentencing process.
The DPP submitted that the respondent had shown a total disregard and contempt for his obligations as a pilot and owner of an aircraft. The offences were committed over a period of three months and involved repeated breaches of safety requirements.
The aircraft which he had flown had not been maintained since about 1990 and no certificate of maintenance had been obtained for about seven years prior to the offences.
Because the respondent was an unlicensed pilot, he was therefore not in receipt of current publications relating to safety which are circulated to licensed pilots. Those publications relate to restricted flying areas, problem flying areas and aerodrome patterns for flight.
Because he was not a licensed pilot and therefore not receiving that information he would not have been aware of latest radio frequencies, meteorological conditions and other information and directions which a licensed pilot receives and which, it was submitted, are essential for safe flight.
The offences, so it was submitted, were committed in circumstances of aggravation in as much as the respondent has only had some three hours of training. It was put that the minimum hours of training before one can become a student pilot was in the order of twenty hours.
It was also submitted as a matter of aggravation that the appellant did not have a current medical authority to fly an aircraft.
The respondent does not have any previous offences of this kind but he does, unfortunately, have a number of previous offences which tend to show a continuing disregard for authority and in particular for the safety of others.
The respondent was convicted on six occasions between 1984 and 1995 for driving under the influence of alcohol. He also has a conviction for prescribed concentration of alcohol. He has been in prison on a number of occasions in relation to those and other offences to which I will refer. He was last convicted of driving under the influence on 3 July 1995.
On that occasion he was also convicted of driving whilst under disqualification. That was his thirteenth conviction for that offence, a truly remarkable and unflattering record.
The respondent was represented before the learned Magistrate and submissions in mitigation were made on his behalf. The respondent is fifty-two years of age, is single and lives at Clare. He was a truck driver by occupation.
He has always had an interest in flying. He purchased the aircraft in July 1994 at a cost of $22,000. In fact he mortgaged his house for the purpose of buying the aircraft. He had previously been involved with ultra light aircraft. Some years ago he purchased an ultra light aircraft and was taught to fly in that. He also built his own gyrocopter.
He intended to become licensed to fly an aircraft but he had difficulties obtaining a medical certificate so in the end he decided to fly unlicensed.
It was submitted, on his behalf, that he had spent many hours familiarising himself with aircraft and in particular this aircraft. He had made extensive use of the manufacturer’s manual and came to know the plane inside out.
It was submitted that it was not suggested that the aircraft had been flown erratically or that there was anything untoward in relation to the flying.

The maintenance release, it was submitted, had expired by reason of time only. A maintenance release is required every 100 hours or twelve months, whichever is the sooner. It was submitted that in the case of this aircraft, the aircraft had not flown the requisite hours requiring further maintenance. It was only that the twelve months had expired which gave rise to the necessity for a further maintenance release.
The respondent purchased a house in Clare in 1982. That house was freehold until 1994 when he mortgaged it for the purpose of buying this aircraft. He was imprisoned in 1995 in relation to the driving offences and he was unable to pay interest on the mortgage. The amount originally borrowed for the purchase of the aircraft increased to $41,000.
When he appeared before the learned Magistrate, he was unemployed and he had only done some casual work since being released from prison in December 1996. He was behind in his mortgage payments and there was an application before the Supreme Court to obtain possession of his house. By that time the amount owing to the mortgagee was $53,000.
It was also pointed out that the respondent faced an application for confiscation of the aircraft under the Proceeds Of Crimes Act. The value of the aircraft had decreased to some $10,000-12,000.
In particular, it was put to the Court that the learned Magistrate should take into account the respondent’s pleas of guilty; that he had already served six months directly as a result of this offending, i.e. by reason of the failure by the appellant to comply with a condition of parole; that he would suffer ‘huge’ financial loss directly and indirectly as a result of his offending standing to lose his house and the aircraft; that no harm was caused by his actions; that if he was to serve an immediate custodial sentence he would lose everything; and that because the aircraft was to be confiscated and sold there was no prospect of his offending occurring again.
It was put to the learned Magistrate that she should not order an immediate custodial sentence.
The learned Magistrate, as the sentence indicates, accepted the respondent’s submissions and rejected the appellant’s contention that the respondent ought to serve an immediate sentence of imprisonment. She recognised the legislation was in place to protect the community and the offences to which the appellant had pleaded guilty were serious. She also recognised that he had clearly acted with total disregard for the regulations. She also believed that there was a necessity for not only personal but general deterrence in a consideration of the appropriate penalty.
However, she said that, having considered the matter, she was not persuaded that an immediate custodial term was required. She did not say expressly why it was that she was not so persuaded.
This is a prosecution appeal and can only be successful if this case is within the concept of a rare and exceptional case as explained in Everett v The Queen (1994) 181 CLR 295.
The DPP recognised, on this appeal, that this Court was bound by Everett and also by the dicta of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293:
“[A]n appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court Of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
In a case such as this the DPP can only make out a claim of manifest inadequacy if the sentence indicated an error in point of principle.
The DPP asserted, in this case, that the sentence was manifestly inadequate and gave rise to a point of principle, namely that where sentences of imprisonment are suspended, they are suspended only in accordance with the correct principles of sentencing.
There is no doubt that the respondent’s conduct in relation to these offences shows a continuing disregard for the law. There is also no doubt that these offences were so serious that a sentence of imprisonment had to be imposed. It was submitted that the sentence of imprisonment which was imposed was too low. It was further submitted that it was inappropriate in the circumstances of these offences and this offender to suspend, as it were, the period of imprisonment.
I do believe that the sentence imposed was too low and that it was manifestly inadequate. I think the gravity of these offences was such that a sentence of imprisonment longer than four months was required. I think the period of imprisonment imposed was so low as to make this one of the rare and exceptional cases which allows an appeal court to interfere.
I would substitute for the term of imprisonment imposed by the learned Magistrate, a period of imprisonment for eight months.
That leaves for consideration whether or not I should require the respondent to serve the whole of that period of imprisonment or some part of it, or whether I should make a recognisance release order in respect of the whole period of imprisonment.
I have not found this aspect of the matter easy.
However, in the end I have reached the conclusion that I ought to exercise my discretion in a similar fashion to the learned Magistrate. I would be prepared to make a recognisance release order in respect of that sentence.
I have reached that conclusion probably for the same reason as the learned Magistrate and that is because the respondent has already served a term of imprisonment which was activated by these offences.
I realise, of course, that the term of imprisonment, which he served, related to other offences but no period would have been served but for these offences and more particularly but for the complaint made by CASA to the parole board.
If the parole board had waited upon the respondent’s plea or the Court’s decision in the Magistrate’s Court and even if the respondent had been sentenced to an immediate term of imprisonment which would then have activated a non-parole period still remaining it is unlikely that the respondent would have served anything like the six months that he served.
In the special circumstances of this case I am prepared to exercise my discretion in the same manner as the learned Special Magistrate and make a recognisance release order for the whole of the period of imprisonment. I do not believe, however, that the terms of the recognisance release order made by the learned Magistrate were appropriate having regard to the respondent’s criminality and antecedents. The learned Magistrate made an order that the respondent be released upon the condition he be of good behaviour for twelve months. I think that to be too short a time for the period of recognisance. In my opinion the respondent should be subject to the recognisance for a period of three years. I would also require him to be under the supervision of an officer of the Department of Correctional Services and to obey all reasonable directions of that officer.
After the hearing both counsel provided me with comprehensive and helpful written submissions relating to the interaction of the Crimes Act and the Criminal Law Sentencing Act. In the result, because of the decision at which I have arrived, I do not need to discuss or reach any decision on that matter.
The appeal will be allowed. The sentence imposed by the learned Magistrate on the information will be set aside.
In lieu thereof Mr Gruhl will be sentenced to eight months imprisonment.
I order that he be released immediately upon entering into a recognisance in the sum of $100 on the following conditions:

(1)... that the respondent is to be of good behaviour for a period of three years from the date of his release.

that the respondent for a period of three years be under the supervision of a probation officer of the Department for Correctional Services of South Australia and obey all reasonable directions given by his probation officer.

that the respondent report within two working days of entering the recognisance, at the offices of the Department for Correctional Services at 2nd Floor, Windsor Building, 1 Windsor Square, Elizabeth.

[1998] SASC 6899

16 October 1998