ELLIS v Police - [2008] SASC 297

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ELLIS v POLICE
[2008] SASC 297
Judgment of The Honourable Justice Kelly
31 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence - appellant pleaded guilty to driving a motor vehicle while there was present in his blood in excess of the prescribed concentration of alcohol - 0.112 grams of alcohol per 100 millilitres of blood - appellant had one prior conviction of driving under the influence, which was outside the statutory five year period - magistrate used s 39 of the Criminal Law (Sentencing) Act 1988 to substitute the fine for a good behaviour bond of 3 years with 6 months under the supervision of a Correctional Services Officer - magistrate also disqualified the appellant from driving for fourteen months after taking into account 4 months already disqualified - whether the sentence was manifestly excessive.
Held: appeal allowed - in the circumstances the imposition of a 3 year bond with the condition to be under supervision for 6 months was manifestly excessive - appellant sentenced afresh to a fine of $750 and the licence disqualification is reduced to 10 months.
Road Traffic Act 1961 s 47B; Criminal Law (Sentencing) Act 1988 ss 16 and 39, referred to.
Janz v Woolven, Lush v Hayes (1990) 55 SASR 239, applied.
R v Szpajchler (1982) 31 SASR 236; R v Yousef (2005) 155 A Crim R 134; Hodgins v Police [2008] SASC 176; Griffin v Police [2005] SASC 337; Police v Wait [2008] SASC 153, discussed.

ELLIS v POLICE
[2008] SASC 297
Magistrates Appeal
Kelly J
Introduction

The appellant appeals against a sentence imposed in the Mount Gambier Magistrates Court on 22 July 2008. The appellant was convicted on his plea of guilty to one count of driving a motor vehicle while there was present in his blood in excess of the prescribed concentration of alcohol contrary to Section 47B of the Road Traffic Act 1961 (“RTA”). As the appellant’s blood alcohol concentration was .112 at the relevant time, he was deemed to have committed a Category 2 offence contrary to s 47B(1).
The penalty for that offence attracted a fine of not less than $700 and not more than $1,200 and disqualification from holding or obtaining a driver’s licence for a period of not less than six months.
The learned sentencing magistrate convicted the appellant and released him on a bond in the sum of $500 to be of good behaviour for a period of three years and to be under the supervision of an officer of the Department for Correctional Services for a period of six months. He was also ordered to obey that officer’s directions, in particular to participate in a road accident awareness program within six months. The magistrate also imposed a fourteen month licence disqualification after taking into account the period of four months that the appellant had already been disqualified. He ordered the appellant to reappear before him for sentence with respect to the monetary penalty if he failed to comply with the bond.
Background
At about 2.20pm on 23 March 2008 at Millicent the appellant was stopped at a police breath testing station on the Mount Gambier Road. The breath analysis returned a reading of .112 grams of alcohol in 100 millilitres of blood. A notice of licence disqualification was issued immediately.
The appellant had one previous conviction on 25 June 2003 for the offence of driving whilst under the influence committed on 30 November 2002 in respect of which he had been fined $800 and disqualified from holding or obtaining a driver’s licence for a period of fourteen months.
Grounds of Appeal
The appellant appeals on the ground that the sentence imposed by the magistrate was manifestly excessive in all of the circumstances. The appeal raises the issue of whether it was appropriate for the magistrate to utilise the provisions of Section 39 of the Criminal Law (Sentencing) Act 1988 (“CLSA”) by imposing a bond with a number of conditions including to be of good behaviour, to come up for sentence if called upon, and to be under the supervision of a Correctional Services Officer for a period of six months.
The Magistrate’s Remarks
In determining an appropriate sentence the magistrate said:
You have lived in the Millicent area most of your life. It seems you have been away for a while after finishing your apprenticeship and now you have returned. You have your own business and you employ an apprentice. You are extremely financially secure by the sounds of it but continue to offend against this community and the safety of it.
I think there is a special reason here given you claimed inability to appreciate why types of alcohol consumption give rise to what sort of readings to resort to a bond. I do not think there is any question about it. You failed to learn by punishment and I think you need, as I said before, some one-on-one contact, that you need to be under the supervision of an officer of the Department for Correctional Services and I am going to substitute a monetary penalty, which you could easily pay by the sounds of it, for a penalty which is much more appropriate to the circumstances of this offending as claimed by you.
With respect to the drink driving offence you will be convicted. I would have imposed a fine of about $900 I would have thought but I am not going to…
In saying that the magistrate appears to have concluded that the imposition of a fine and licence disqualification was not sufficient to bring home to the appellant the consequences of drinking and driving. Given the appellant’s claimed ignorance that he was over the .08 limit at 2.20pm the day after a night of drinking alcohol, it is not difficult to understand why the magistrate thought it necessary to bring home to the appellant the consequences of drinking and driving.
The magistrate concluded his sentencing remarks with a comment that he relied upon the authority of Police v Wait [2008] SASC 153. In that case a judge of this Court upheld the decision of another magistrate to substitute a bond in lieu of a monetary fine in respect of a Category 2 offence contrary to s 47B(1)(a) of the RTA. Although the magistrate in that case did not purport to rely on s 39 of the CLSA the judge on appeal held that that was presumably the basis on which the magistrate had purported to act and it was on that basis that he upheld the decision.
In that case however, the offender was a pensioner who would find it very difficult to pay a fine. In upholding the decision of the magistrate, David J relied on the decision of the Full Court in Janz v Woolven, Lush v Hayes (1990) 55 SASR 239.
The Full Court decision in Janz is authority for the proposition that the language of s 39 is capable of applying to an offence contrary to s 47B of the RTA. However, the power not to record a conviction cannot be used in relation to an offence under s 47 or s 47B, because to do so would operate to affect the mandatory licence disqualification provided for in those sections.
S 39 of the CLSA relevantly provides as follows:
39—Discharge without sentence on defendant entering into bond
(1) Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)    to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a) However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)     Where a defendant is discharged under this section—
(a)     no fresh prosecution may be commenced in respect of the offence; and
(b)     the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
The circumstances in which the discretion in s 39 to discharge a defendant with or without recording a conviction and without imposing a penalty are not circumscribed in the same way as s 16 of the CLSA. The exercise of the Court’s powers under s 39 has been considered in a number of different contexts in various decisions of this Court.
My examination of the relevant authorities leads me to conclude that courts have in the main, exercised the powers available under s 39 for ameliorative purposes and not to impose a more onerous burden on a defendant than would have been the case if the usual penalty was imposed.
In R v Szpajchler (1982) 31 SASR 236 an issue arose as to whether a person having entered into a bond could then complain of its terms on appeal. The appeal turned on a different point, however King CJ expressed the view obiter, that an appeal on the basis that the terms of a recognizance were unduly stringent, did lie. However, the cases in which an appellate court will interfere with such conditions will be extremely rare. King CJ went on to say that the shaping of the terms of a recognizance is within the discretion of a sentencing judge and only a manifest error would lead an appellate court to interfere.
In recent times there have been a number of cases in which judges of this Court have commented on the circumstances which might constitute “good reason” within the meaning of s 39.
In R v Yousef (2005) 155 A Crim R 134, the court discussed what factors a court needs to address in determining whether “good reason” exists not to record a conviction. In a joint judgment Sulan and Layton JJ commented that the phrase “good reason” as it appears in both s 16 and s 39 of the CLSA, suggests that good reason would have some features in common which would justify an amelioration of the sentence. They went on to say at 143:
The discretion of the court to exercise its powers under s 39 of the Act is a wide discretion. In considering whether good reason exists, the factors to which s 4 of the Offenders Probation Act referred, and the factors to which the equivalent Federal and New South Wales refer are, in our view, factors to which a court should have regard. Other factors, such as the religious background of an offender, may also be relevant.
In the same case White J, who was in substantial agreement with the majority, said at 149:
The circumstances which the Court may consider constitute good reason for the purposes of ss 18, 38 and 39 are not circumscribed in the same way. Those sections do not specify any particular matters to which the Court must have regard. That suggests that the Court can have regard to any relevant matter at all in determining whether or not good reason exists to exercise the discretion vested by s 39.
More recently Gray J observed in Hodgins v Police [2008] SASC 176 at 6 that under s 39, there is no requirement for the Court to have regard to particular factors in arriving at the conclusion that good reason exists to discharge the defendant without recording a conviction.
In the case of Griffin v Police [2005] SASC 337 the Court was dealing with an appeal against sentence where the appellant was complaining of a magistrate’s exercise of discretion under s 39 to impose a bond to be of good behaviour for three years in lieu of imposing a fine for an offence of child pornography. In that case the magistrate had recorded a conviction but had released the appellant without penalty upon the appellant agreeing to enter into the bond. It was a term of the bond that the appellant comply with all of the conditions, one of which was that he was to come up for sentence if called upon.
In rejecting the submission that the magistrate should have imposed a fine, White J noted that the magistrate was entitled to offer the appellant “the benefit of the ameliorative powers in s 39 instead of imposing what would ordinarily be regarded, for a person in the appellant’s circumstances, as a penalty involving great hardship”. His Honour went on to say that even if the appellant did have the capacity to pay a fine it was still open to the magistrate to find that “good reason” existed for invoking s 39 and that no error of principle had been shown. His Honour acknowledged that the appellant’s acceptance of the terms of the bond at the time of sentencing was not a decisive consideration and in the end found that the term of the bond for a maximum period of three years was in fact an error.
With the exception of Griffin’s case, counsel did not cite any other authority, nor have I been able to find any, where a court has exercised the powers in s 39 to impose a bond, the terms of which were more onerous to a defendant than the imposition of the available sentence for which the bond was a substitute.
I have concluded from the terms of s 39 itself and from my examination of the relevant authorities, that the purpose of s 39 is to enable a court in an appropriate case to deal with an offender in a more lenient way than would otherwise be the case. It is against that background that I have considered the sentence imposed in this case.
The magistrate plainly came to the conclusion that the imposition of a fine would not be an adequate penalty. He noted that the appellant could easily pay a monetary penalty but in light of his claimed ignorance as to the effect of alcohol consumption on blood alcohol levels, the magistrate stated that he would require the appellant be under the supervision of an officer of the Department for Correctional Services and also to attend a road accident awareness program within six months.
An added complication is that the terms of the bond actually signed by the appellant do not contain any requirement to attend any road accident awareness course as ordered by the magistrate. Nevertheless the appellant did sign a bond to be of good behaviour which contained a number of conditions including a condition that he be under the supervision of a probation officer/community corrections officer for a period of six months and obey all the lawful directions given by that officer. The term of the bond was three years.
The appellant submitted that there were a number of aspects of the magistrate’s sentence which indicated that the magistrate had taken an erroneous approach in sentencing the appellant.
The first error was said to be the magistrate’s reference to the fact that he would have imposed a fine of about $900, which was the maximum monetary penalty that could be imposed for a Category 2 offence in the appellant’s circumstances. The appellant’s submission was that the maximum fine should be reserved for the worst possible offending in that category and the appellant’s offending could not be said to fall into that category. Given the limited range of monetary penalties available for a Category 2 offence under the section, I do not find this submission to be particularly persuasive and standing alone I would not attach any particular significance to the magistrate’s comment.
The second error was said to be the imposition of a licence disqualification of fourteen months which implied that the starting point before discount for any plea, must have been around two years. The minimum period of licence disqualification mandated by the RTA is a period of not less than six months as the court thinks fit.
Whilst conceding that there is no upper limit prescribed, the appellant submitted that a starting point of two years is so far outside the usual range for a first offender committing a Category 2 offence, that that also was indicative of an erroneous approach. Finally, the appellant submitted that the imposition of a bond which was for the maximum period available under the CLSA and which contained a term requiring the appellant to be under the supervision of a Correctional Services Officer for six months, was also manifestly excessive.
The respondent conceded that the sentence imposed by the magistrate was an unusual sentence, but maintained that it was within the bounds of his discretion. The respondent argued that there were a number of matters which entitled the magistrate to deal with the appellant in the way that he did by imposing a longer than usual disqualification and a bond in the terms he did. The first matter was the fact of the appellant’s prior conviction, which although outside the statutory five year period, was nevertheless a relevant prior conviction. It had a particular relevance in the respondent’s submission, because the prior offending was for driving under the influence of alcohol and the disqualification period ordered in respect of that conviction was fourteen months which had plainly not deterred the appellant from committing another offence. Another matter was the failure of the appellant to appreciate his condition in circumstances where he had a very high reading (.112) many many hours after a party the night before and at a time when he had passengers travelling in his vehicle. This, the respondent said entitled the magistrate to adopt an innovative approach to sentence to ensure that the sentence had the required deterrent effect on the appellant.
In these circumstances the respondent submitted that the magistrate was entitled to proceed in the way he did by requiring the appellant to enter into a bond to be of good behaviour in lieu of a monetary fine which he was easily able to afford and that in all the circumstances the actual sentence arrived at was appropriate to the circumstances.
Whilst the magistrate’s concern to ensure that the appellant attended a road accident awareness course is perfectly understandable in light of his history, it is difficult to see why this appellant needed to be placed on a bond for such a lengthy period and to be under the supervision of a Correctional Services Officer for any of that period. The evidence before the magistrate disclosed that the appellant was an industrious, self employed builder in the Millicent area who is of good character and highly regarded in his community. A term of three years is the maximum period for which a bond may be imposed. Whilst a court has a very wide discretion in relation to the terms of the bond which it fixes, it is the case that generally, longer bonds are imposed for more serious offending or for more serious recidivists than the appellant.
While there is no doubt the magistrate had the power to utilise the provisions of s 39, in requiring the appellant to be under supervision and in fixing a bond for the maximum term of three years, I consider the magistrate has erred. In light of the magistrate’s stated intention, I consider that a bond for a period of six months, which included a condition that he attend the road accident awareness course, would have sufficed in this instance.
For the reasons given, in my opinion the appeal should be allowed and the sentence of the magistrate, insofar as it relates to the imposition of the bond, should be set aside.
In light of my conclusion it is necessary for me to re-sentence the appellant. Like the magistrate, I consider that there is good reason in the case of this appellant, to impose a licence disqualification well above the minimum required by the Act. There is the fact of the appellant’s prior conviction and licence disqualification for fourteen months on that occasion which did not deter the appellant from committing a second offence albeit outside the statutory period of five years. It is obvious from the submissions made on this appeal that the licence disqualification is operating as a real deterrent as the appellant is now having to employ one of his apprentices to drive him to various building sites. However, I consider that an appropriate starting point for the licence disqualification is eighteen months. I do not consider that the appellant requires any supervision and in all of the circumstances I do not consider it appropriate to utilise the provisions of s 39.

I take into account the appellant’s plea of guilty and the period now of just over seven months disqualification already served. The licence disqualification will therefore need to be reduced.
I make the following orders:
1.The appeal is allowed and the order of the magistrate relating to the imposition of the bond is set aside.
2. The appellant is fined $750.
3.The order of the magistrate made on 22 July 2008 is amended to reduce the licence disqualification period to 10 months.
4.The order in relation to payment of costs and levy made in the lower court, remains.