FERGUSON v Police - [2006] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FERGUSON v POLICE
[2006] SASC 196
Judgment of The Honourable Justice Layton
30 June 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - TIME SPENT IN CUSTODY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED
Appellant pleaded guilty to a number of driving offences, including three separate counts of driving whilst disqualified - in relation to the driving whilst disqualifed offences Magistrate sentenced the appellant pursuant to s 18A to imprisonment for one month - Magistrate did not suspend the sentence - appellant aged 18 - whether Magistrate erred in imposing a sentence of imprisonment - whether Magistrate erred in failing to take into account time appellant spent in custody on remand and on home detention bail - whether Magistrate erred in failing to suspend the sentence - Held: no error in imposing a term of imprisonment or in not suspending the sentence - Magistrate erred in failing to indicate whether any reduction was made for the time spent in custody - appeal allowed - sentence of imprisonment imposed by the Magistrate quashed - appellant re-sentenced to 21 days imprisonment - imprisonment not to be suspended.
Magistrates Court Act 1991 s 42; Criminal Law (Sentencing) Act 1988 s 11, s 30, referred to.
Frank v Police (2000) 77 SASR 273; Police v Cadd (1997) 69 SASR 150; R v Malesevic (1999) 204 LSJS 32, applied.
Crafter v Police [2001] SASC 336, discussed.
Wood v Samuels (1974) 8 SASR 465; R v Bruce v Hollick [1988] SASC 6831; R v Fowler [2006] SASC 18; Theophilus v Police (Unreported, Supreme Court of South Australia, Olsson J, 20 January 1998); Tong v Police [1998] SASC 6813, considered.

FERGUSON v POLICE
[2006] SASC 196
Magistrates Appeal

LAYTON J: This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991. On 5 May 2006 the appellant pleaded guilty to a number of driving offences, including three counts of driving whilst disqualified, on three separate Magistrates Court files. The details of those offences are set out later in these reasons.
In relation to the offences of driving whilst disqualified the appellant was sentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) to imprisonment for a period of 28 days, not to be suspended. It is this sentence of imprisonment to which the appeal relates. In relation to the other offences, the Magistrate recorded convictions without penalty for most offences, as well as imposing a fine and, in relation to the offence of driving with a prescribed concentration of alcohol, further disqualified the appellant from driving for a period of 12 months.[1] At the time of sentencing the appellant had spent seven days in custody on remand, and a further four months on home detention bail.
[1] The penalties imposed on the other offences are set out in the footnotes to paragraphs [6] and [7] of these reasons.
Grounds of Appeal
The appellant filed amended grounds of appeal on 15 June 2006. Those amended grounds are as follows:
1. The Learned Sentencing Magistrate erred in imposing a term of imprisonment.
2.Having decided to impose a term of imprisonment the Learned Sentencing Magistrate erred in failing to make a reduction to the term of imprisonment, on account of time spent in custody, time spent on home detention bail.
3.The Learned Sentencing Magistrate erred in not suspending the term of imprisonment, there existing good reasons to do so.
Counsel for the appellant indicated that these grounds were in substitution for the grounds included in the original Notice of Appeal.
Circumstances of the offending
The circumstances of the three incidents of offending are summarised in the Magistrate’s remarks on penalty. For convenience I set out the relevant parts of those remarks:
On the first occasion, 20 August 2005 I am told that you had gone to a party. You had not intended to drive your motor vehicle, another person was to be the person driving it, however, you drove it – that person apparently abandoned you. You had not had any sleep. You decided to go home. On the way home you crashed the vehicle.
On 16 December 2005, you were seen by police using a mobile phone. You were stopped. You told police that you knew that you were disqualified. You were going to a mate’s place to pick your mate up.
On 27 December 2005 you were observed by police officers, you were spinning your wheels. Your vehicle fishtailed. You took off at a high rate of speed and accelerated to 120 kilometres in a 60 kilometre zone. There were other vehicles in the area. You overtook two vehicles and then pulled in front of one of them, quite sharply, in order to avoid a vehicle which was further up. The police activated their lights and siren. You overtook another car on double lines on a blind hill.
You had at that time been placed on bail, on 16 December, for identical offending and it was a condition of your bail that you were not to occupy the driver’s seat of a motor vehicle.
I am told on 27 December you did not stop when the police flashed their lights because you didn’t see it and you didn’t hear the sirens until after you had overtaken the car and which time you then failed to stop…
The three incidents resulted in a number of charges in addition to a count of driving whilst disqualified in respect of each incident. For the 20 August incident the appellant was also charged with driving unregistered and driving without due care.[2] For the 16 December incident the appellant was also charged using a hand held mobile telephone while driving.[3]
[2] For these offences the Magistrate imposed one fine of $300 pursuant to s 18A.
[3] For this offence the appellant was convicted without penalty.
As a result of the 27 December incident the appellant was also charged with driving at a speed dangerous to the public, driving in a manner dangerous to the public, failing to comply when requested to stop by a police officer, contravening a term of a bail agreement, driving with a prescribed concentration of alcohol (0.08 grams) being the driver of a vehicle emitting excessive noise by spinning tyres and failing to comply forthwith when requested to stop by a police officer.[4]
[4] For the offence of prescribed concentration of alcohol the appellant was further disqualified from driving for a period of 12 months. That disqualification has been suspended pending the outcome of the appeal. For the other offences, including the breach of bail, the appellant was convicted without penalty.
The Magistrate summarised the appellant’s offending in the following manner:
The offending to which you have pleaded guilty is extremely serious. You have continued to offend. On the second occasion you were placed on bail and you have continued to offend, committing offences on the third occasion after being placed on that bail. The offending on each occasion is identical, and on the third occasion you created a significant danger not only to yourself but also to other people. On that occasion you were driving at a dangerous speed, you had a blood alcohol reading in excess of 0.08. You were on a condition of bail not to drive at all, but you continued to drive.
Approach to sentencing
Lander J in Frank v Police[5] summarised the relevant principles to be applied on appeal:
It is not for this Court to substitute the exercise of its discretion for that of the magistrate. This Court cannot interfere with a sentence unless it can be shown that the magistrate acted on a wrong principle or misapprehended the facts by taking into account facts which were irrelevant or failing to take into account facts which were relevant.
Of course, it will happen that the sentencing remarks do not disclose error of principle or misapprehension of the facts but the very facts and circumstances surrounding the offence and matters personal to the offender will demonstrate that there must have been an error on the part of the magistrate.[6]
[5] (2000) 77 SASR 273.
[6] (2000) 77 SASR 273, 280 [74]-[75].
Whether a period of imprisonment was appropriate
The appellant contends that the Magistrate erred in imposing a period of imprisonment. The appellant relied on s 11 of the Sentencing Act which provides that:
(1)     A sentence of imprisonment may only be imposed—
(a)     if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)     if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).
Both parties agreed that the only condition which could potentially apply to the appellant was sub-s (1)(a)(iv), that “any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence”. In particular, this sub-section might be argued to be satisfied having regard to the decision in Police v Cadd,[7] in which each member of the majority of the Court accepted that for the offence of driving whilst disqualified the punishment should be imprisonment:
in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment…[8]
[7] (1997) 69 SASR 150.
[8] (1997) 69 SASR 150, 171.
The appellant also submitted, however, that even if the criteria of s 11 were met, that does not necessarily mean that a sentence of imprisonment would be appropriate. Counsel for the appellant referred to the case of Crafter v Police[9] which was an appeal by an 18 year old convicted of one count of driving whilst disqualified and one count of damaging a road. The Magistrate had imposed a sentence of 14 days imprisonment. The facts were not directly apposite to this case, but in the course of his reasons Mullighan J referred to matters of general principle. Mullighan J referred to the case of Police v Cadd,[10] citing in turn his own reasons for judgment in that case in which he said in relation to the proper sentencing standard:
That standard, accepting these matters and giving appropriate emphasis to general deterrence should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case.[11]
His Honour continued in the case of Crafter to say:
It may be seen that contumacious offending does not require a sentence of imprisonment to be served in every case.
[9] [2001] SASC 336.
[10] At [14], citing Police v Cadd (1997) 69 SASR 150, 179.
[11] (1997) 69 SASR 150, 179.
Counsel for the appellant argued that applying those principles to this case, the Magistrate had failed to consider all sentencing options and whether any option other than imprisonment would suffice. Further, counsel for the appellant argued that the matters which should have been considered by the Magistrate were the circumstances of the offending and the circumstances of the offender. Counsel for the appellant highlighted paragraph [12] of the Magistrate’s remarks on penalty in which she indicated:
You are only 18 years of age. Your only previous conviction is the one for which you were disqualified. I consider the offending is such that a period of imprisonment must be imposed. The fact is, when courts warn people that they are not to drive or they will risk imprisonment, it is a serious warning and must be taken seriously.
Counsel submitted that there was no indication given that the Magistrate considered any alternatives to imprisonment such as community service before deciding on imprisonment. Further, it was argued that she had not properly addressed all aspects of the circumstances of the offending. It was submitted that she fell into error at this point.
It was argued that in relation to the circumstances of the offending there was only one previous conviction and that was the offence for which the accused was disqualified. As to the circumstances of the offender, he was only 18 years of age and he had been in employment. It was submitted that the post offending circumstances were also relevant, namely, that he had spent seven days in custody and four months on home detention in which he had complied with the home detention orders and maintained his employment. Counsel for the appellant contended that these were also matters which should have been taken into account as part of the circumstances of the offender in considering whether or not imprisonment was appropriate in accordance with the authority in Police v Cadd.
Turning to the Magistrate’s remarks on penalty, she appears to have addressed the circumstances of the offence and the offender prior to the paragraph on which the appellant relies. She also specifically referred to the appellant’s compliance with conditions of home detention and managing to keep employment.
I am not satisfied from reading the Magistrate’s remarks on penalty that she so fell into error. Paragraph [12] should not be looked at in isolation.
I am not satisfied that the post offending circumstances, namely the question of whether the appellant had been in custody on remand and also on home detention, would form part of the “circumstances of the offending or the offender” which might “dictate some less severe former punishment”.[12] This is not to say that they are not relevant to the overall sentence, but in my view their main relevance is after the process of considering whether or not a period of imprisonment is an appropriate penalty in the circumstances of the offending and the particular circumstances of the offender. Once it has been determined that a sentence of imprisonment is appropriate, then time spent in custody or on home detention may reduce the period of imprisonment to be imposed. In some cases it may even be determined that although a sentence of imprisonment would otherwise be appropriate, the time spent on remand is a sufficient penalty for the offence. However, I do not consider that time spent in custody or on home detention can properly be described as factors making up the circumstances of the offender which are relevant to the question of whether or not imprisonment is an appropriate penalty. I therefore reject the appellant’s argument on that point.
[12] Police v Cadd (1997) 69 SASR 150, 179.
As to the sentencing options, the appellant submitted that the proper approach was to consider all sentencing options and to only impose imprisonment if no other option would suffice.[13] The appellant contended that alternatives to imprisonment ought to have been eliminated before imprisonment was imposed.
[13] See Wood v Samuels (1974) 8 SASR 465.
It appears that the learned Magistrate has had regard to all of the necessary elements before deciding, in my view correctly, that the offending was contumacious and warranted imprisonment for a period of time, notwithstanding the appellant’s personal circumstances, particularly his youth. I also reject the appellant’s submission on that point.
Whether the Magistrate erred in failing to reduce the period of imprisonment
The appellant also submits that the Magistrate erred in failing to take account, in setting the period of imprisonment, of the seven days the appellant had already spent in custody, and the four months he had spent on home detention bail. Although the Magistrate notes that the appellant has been in custody and on home detention bail, no reference is made in the remarks on penalty to any credit being given for time spent in either situation.
In relation to the period of imprisonment, the Magistrate noted in paragraph [8] that the appellant had been in custody from 27 December 2005 to 4 January 2006 but thereafter makes no further mention of that period of custody nor is there any reference to it at the point when the Magistrate decides that there will be imprisonment for 28 days from the date of sentencing.
Section 30(2) of the Sentencing Act provides for time spent in custody to be taken into account in sentencing in the following ways:
(2)Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may—
(a) make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or
(b) direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.
The respondent submitted that the use of the word “may” in that sub-section indicated that there is no requirement that time spent in custody be taken into account in setting a term of imprisonment.
In the case of Frank v Police[14] Lander J discussed the issue of whether a sentencing court should take into account time spent in custody on remand. In that case the sentencing Magistrate had expressly indicated the following:
I take into account the time he has spent in custody on remand. Clearly there was good reason why he was remanded in custody pending the determination of these matters. I take into account all other submissions put to me by his counsel.[15]
[14] (2000) 77 SASR 273.
[15] (2000) 77 SASR 273, 277 [44].
Lander J rejected the submission that the Magistrate had not taken into account the time spent in custody, instead his Honour’s concern was that the Magistrate did not indicate whether it was the whole or some part of the time spent in custody that was taken into account.
His Honour made the following observations with regard to s 30 of the Sentencing Act and its operation in relation to taking into account time spent in custody:
Section 30 the Criminal Law (Sentencing) Act allows the court to take alternative courses of action when imposing a sentence of imprisonment on a person who has spent time in custody prior to sentencing. The court may back-date the sentence to the day upon which the prisoner was taken into custody: s 30(2)(b). Alternatively, the court may make an appropriate reduction in the sentence having regard to the time spent in custody: s 30(2)(a). When the legislation specifically provides for a course of action it cannot be said to be an error to adopt that course. Indeed, in some cases, the sentence cannot be back-dated: s 75 of the Correctional Services Act; R v Bartels (1986) 44 SASR 260. In some other cases, where some of the time has been spent in custody and some on bail, it might not be possible to back-date the sentence, but it might be preferable to simply allow for the time spent in custody.[16]
His Honour continued:
The sentencing process must be transparent. It must be so because the prisoner is entitled to know, when the prisoner has been sentenced to a term of imprisonment, exactly how the sentence has been constructed. For example, the prisoner is entitled to know, if he or she has pleaded guilty, the credit which has been given in the sentencing process: R v Harris (1992) 59 SASR 300.
So also, if a prisoner has spent time on remand for the offences for which the prisoner is to be sentenced, the prisoner is entitled to know, if the sentence is not back-dated, whether the court has taken into account the whole or any part of the time spent in custody pending sentence.
In my opinion, provided there are no complicating factors of the kind to which I have referred, it would be preferable to back-date the sentence to the date when the prisoner went into custody.
If for some reason the court believes the better sentencing option would be to simply take into account the time spent in custody, in my opinion, the court ought to say why that is so and at the same time indicate whether the court has taken into account the whole of the time spent in custody or some part of it. If the court is not taking into account the whole of the time spent in custody, then the court should explain in the sentencing remarks the reasons why only part of the time spent in custody is to count in the sentencing process. Ordinarily, the whole of the time spent in custody would be taken into account in fixing the appropriate sentence: K v SA Police (1994) 175 LSJS 195.[17]
[16] (2000) 77 SASR 273, 278-9 [54].
[17] (2000) 77 SASR 273, 279 [55]-[58].

It would be appear from the reasoning of Lander J that although s 30 of the Sentencing Act uses the term “may”, the court’s discretion in relation to time spent in custody is limited to how such period is to be taken into account either in whole or in part; by either back-dating the sentence or by deducting some or all of the time spent in custody from the period of imprisonment to be imposed. Although in some circumstances there may be good reason not to give an offender credit for time spent on remand, I do not accept that the use of the word “may” in s 30(2) means that there is no obligation on a sentencing judge or magistrate to consider whether, and to what extent, time already spent in custody should be reflected in the sentence imposed.[18]
[18] See Tong v Police [1998] SASC 6813, [10] per Bleby J.
In this case the Magistrate does not make the sentencing process on that aspect transparent. She has not referred to whether she has taken any account at all of the time spent in custody, or if she did, what amount of credit was given for the time spent in custody.
I note the respondent’s submissions on this point, that at the time the appellant was remanded into custody, it was not simply because of the offence of driving whilst disqualified but the fact that he had breached bail by so driving. In my view even if his remand into custody was for more than one offence, nonetheless in this circumstance the period spent in custody, which after all was one quarter of the overall sentence eventually imposed, should have been a matter to which the Magistrate directed her attention. I am not necessarily satisfied that it was a matter which should be divided up between any breach of bail and the driving under disqualification. The two were synonymous. I also note that in the sentencing remarks of the Magistrate there was no penalty imposed with regard to Count 5, being the breach of bail conditions.
I therefore consider that there has been an error in the sentencing process of the Magistrate in not disclosing to what extent, if at all, the Magistrate took into account the time spent in custody.
As to the time spent on home detention, for the reasons in R v Malesevic[19] the Chief Justice has held that failure to take into account home detention in a sentencing process is not an error. It is a matter which may be taken into account in the exercise of discretion. On this aspect I am not satisfied that the Magistrate erred, particularly when reference is made to home detention in paragraphs [8], [9], [11] and [14] of her remarks on penalty.
[19] (1999) 204 LSJS 32; see also R v Bruce and Hollick [1998] SASC 6831.
Whether the sentence of imprisonment ought to have been suspended
In relation to suspension the appropriate process to follow is that after deciding that imprisonment is an appropriate punishment, the court must go on to consider if “good reason” exists to suspend the sentence.[20] At that point the circumstances of the offending and the offender are again to be reconsidered.[21] This requires the Magistrate to again consider all of the circumstances of the case in order to make that assessment.[22]
[20] Criminal Law (Sentencing) Act 1988 s 38.
[21] Police v Cadd (1997) 69 SASR 150; Wilson v Police [2004] SASC 39.
[22] R v Fowler [2006] SASC 18 at paras [54], [58] and [29].
In this case the Magistrate referred to matters related to suspension of imprisonment specifically in paragraphs [14], [15] and [16]. The Magistrate referred to the youth of the appellant and noted that:
The sentence of a person of your age to a period of imprisonment is an extremely serious step. I note the comments, which have been made many times before by the Supreme Court, with respect to the consideration to be given where a sentence of imprisonment is possibly to be imposed on a person who is only 18 years of age.
Her Honour also referred to the minimal offending history and to the appellant’s compliance with home detention and noted the submissions made on his behalf that it was “unlikely you are going to offend in a similar way again”. Nonetheless, as the Magistrate indicates, it was the circumstances of the offending which led in this instance to her Honour deciding that it was not appropriate to suspend the sentence. In approaching the matter in this way, the Magistrate did not disclose error and was clearly of the view that the gravity of the offence and the circumstances of the offending together with the aspect of deterrence, militated against such suspension. I do not consider that the Magistrate fell into error in failing to suspend.
Re-sentencing
In my view, for reasons already indicated, the Magistrate fell into error in failing to take account of the time spent in custody and on that basis I consider it appropriate to re-sentence.
In re-sentencing I am obliged to sentence on the situation that exists at the present time. For the purposes of re-sentencing I have been informed that the appellant is currently in custody and it is uncertain for how long he will remain there. Of course, it is not appropriate for me in re-sentencing to have regard per se to the fact that other offences may have subsequently been committed but rather to bear in mind his current circumstances.[23]
[23] See R v W, TB (No 2) [2006] SASC 72.
My starting point is that this is a case which warrants a period of imprisonment for the reasons that I have previously discussed and I accept the Magistrate’s approach to this matter. I also take note of the observations made by Olsson J in Theophilus v Police[24] in regard to offences of driving whilst disqualified that it is an offence which is “both prevalent and often not easy to detect. The factors of both personal and general deterrence must be given weight”. Further, his Honour continued:
It seems to me that, as a matter of common sense and logic, if an offence of drive disqualified is so serious and contumacious as to warrant imposition of a custodial sentence then, at the very least, a term of, or approaching, one month must be in consideration. That conclusion is consistent with the reasoning in Police v Cadd…
[24] (Unreported, Supreme Court of South Australia, Olsson J, 20 January 1998).
In my view the starting point in this case of a sentence of one month is appropriate. Whilst it is not necessary to take a mathematical approach, I consider that there should be a deduction of seven days to reflect the time spent in custody. This leaves a period of imprisonment of 21 days.
Turning now to whether that sentence should be suspended. I consider that having regard to the gravamen of the offending and the offences, notwithstanding the youth of the appellant and his employment, which of course is now in abeyance, there is no utility in suspending the sentence and imposing a good behaviour bond with supervision. It therefore seems to me taking into account all of the circumstances there is no “good reason” to suspend the period of imprisonment and I do not.
Order
The order of the Court is that the sentence of imprisonment imposed by the Magistrate pursuant to s 18A be quashed and in lieu thereof a period of imprisonment of 21 days is imposed for the three offences of driving whilst disqualified. In all other respects the orders of the Magistrate should stand.