Fewings v POLICE - [2008] SASC 205

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FEWINGS v POLICE
[2008] SASC 205
Judgment of The Honourable Justice Vanstone
22 July 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Appeal against sentence - appellant pleaded guilty to summary offences, including four counts of driving whilst disqualified - magistrate found the repetition of driving offences was contumacious - sentence of four months imprisonment imposed - appellant previously served one month in custody prior to sentence - whether magistrate erred in not taking into account a period spent in custody on question of suspension - whether sentence should have been wholly or partly suspended. Held: an appellate court will only interfere with the sentence if the exercise of discretion has miscarried - magistrate did not err in failing to suspend sentence - appeal dismissed.
Magistrates Court Act 1991 s 42; Motor Vehicles Act 1959 s 9, s 74, s 91, s 102; Summary Offences Act 1953 s 41; Road Traffic Act 1961 s 38 (repealed); Controlled Substances Act 1984 s 32; Bail Act 1985 s 17; Criminal Law (Sentencing) Act 1988 s 30(2), s 38, s 38(2a); Criminal Law Consolidation Act 1935 s 352, referred to.
R v McDonald (1974) 8 SASR 388; R v Mangelsdorf; R v Perry; R v Richards (1995) 66 SASR 60; R v Walker (1981) 27 SASR 315, applied.
House v The Queen (1936) 55 CLR 499; R v Wilton (1981) 28 SASR 362; Williams v McDonald (1984) 113 LSJS 210; Renshaw v Director of Public Prosecutions (Cth) (1996) 67 SASR 139, considered.

FEWINGS v POLICE
[2008] SASC 205
Magistrates Appeal

VANSTONE J: Keith John Fewings appeals against a sentence imposed in the Magistrates Court after pleading guilty to a number of summary offences, including four offences of driving while disqualified. The sentence imposed was a total of four months imprisonment. The only matters raised by his grounds of appeal are that the magistrate erred in failing to suspend the sentence and erred in failing to consider partially suspending the sentence.
This appeal is lodged pursuant to s 42 Magistrates Court Act 1991. It is an appeal by way of re-hearing. I am to consider the material before the magistrate but I have the power to receive fresh evidence: s 42(4).
The appellant pleaded guilty before the magistrate to the following offences committed on the first mentioned date:
1.24/02/2006: driving while disqualified contrary to s 91 Motor Vehicles Act 1959;
2.19/11/2006: driving while disqualified contrary to s 91 Motor Vehicles Act 1959;
3.20/04/2007: unlawful possession of a quantity of wood contrary to s 41(1) Summary Offences Act 1953; driving while disqualified contrary to s 91 Motor Vehicles Act 1959 and failing to truly answer questions contrary to s 38 Road Traffic Act 1961;
4.2/07/2007: driving an unregistered vehicle contrary to s 9 Motor Vehicles Act 1959 and driving while disqualified contrary to s 91 Motor Vehicles Act 1959;
5.producing a controlled substance contrary to s 32 Controlled Substances Act 1984;
6.12/08/2007: failing to comply with a bail agreement contrary to s 17 Bail Act 1985 and driving without a current licence contrary to s 74(1) Motor Vehicles Act 1959;
7.28/12/2007: driving an unregistered vehicle contrary to s 9 Motor Vehicles Act 1959; driving without insurance contrary to s 102 Motor Vehicles Act 1959; failing to comply with a bail agreement contrary to s 17 Bail Act 1985 and driving without a current licence contrary to s 74(1) Motor Vehicles Act 1959.
The magistrate found the repetition of offences of driving while disqualified were contumacious. There is no complaint in relation either to that finding, or to the imposition of a sentence totalling four months imprisonment. That sentence was reached by accumulating sentences of one months imprisonment imposed in respect of each of the four offences of driving while disqualified. For all remaining offences the appellant was convicted without penalty.
In support of the submission that the magistrate erred in failing to suspend the sentence, counsel for the appellant pointed to steps taken by the appellant towards rehabilitation. These matters had been made the subject of submissions to the magistrate and were also mentioned in a pre-sentence report provided to the magistrate. They included the appellant’s willingness to submit to the sentence of the court, his enrolment in Centrelink’s Personal Support Scheme to help make himself more employable and the fact that he had not offended since 28 December 2007.
While these matters amount to some signs in this 29 year old man of a determination to reform, they are not of themselves unusual or notable features of a case such as this.
Counsel also referred to time spent in custody prior to sentence as a matter relevant to the decision to suspend the sentence. It was submitted that the time Mr Fewings spent in custody had reduced his use of illicit substances and also had a general deterrent effect on him. There was some dispute in the submissions of counsel on either side about the matter of time in custody. It is clear that between 12 August 2007 and 28 November 2007, the appellant was remanded in custody. At that time he was facing a number of charges, including the breach of bail and driving without a licence offences committed on 12 August 2007 and two major indictable offences of an entirely different nature, for which he was charged on 12 August. It appears that prior to that date the appellant was also facing charges for serious drug offences. These major indictable offences were not proceeded with on 28 November 2007. What is unclear is whether the appellant was given bail on the breach of bail and driving offences committed on 12 August 2007. If not, then he could claim a reduction for the sentence later imposed. The magistrate’s reasons do not assist in relation to this issue. All the magistrate said about the time in custody was this:
After you were arrested in August 2007, on a number of major indictable offences, you spent time in custody. Those offences are no longer before the court, but you are still due to appear in court in relation to taking part in the production of methylamphetamine, but that matter is irrelevant to the dealings before the court today.
Judging by this remark it is unlikely the magistrate was asked to deduct the period in custody from the head sentence.
In the event I have found it unnecessary to ask counsel to ascertain whether or not the period in custody – which I will call three months – could be attributed, in part, to the two offences committed on 12 August which the magistrate dealt with, so as to call for some consideration of a reduction of the head sentence under s 30(2) Criminal Law (Sentencing) Act 1988.Either way, it would not alter my decision on the appeal.
By a second ground of appeal, added to the appeal notice by amendment on the day of hearing, the appellant attacked the magistrate’s decision on the basis that she had erred in failing to consider the application of s 38(2a) Sentencing Act. That subsection entitles a court which sentences a defendant to a period of more than three months, but less than one years imprisonment to direct that the defendant serve a period of not less than one month in prison and to suspend the remainder of the sentence. Counsel acknowledged that no submission was made to the magistrate based on this subsection.
In relation to both the failure to suspend the entire sentence and the failure to partially suspend it, counsel argued that the period of three months spent in custody prior to sentence was a relevant factor. In other words, his argument was that, with the other relevant material already mentioned, the fact of time in custody could constitute the “good reason” which is required before a sentence can be wholly or partly suspended: s 38 Sentencing Act.
An appeal against sentence is an appeal against an exercise of the judicial discretion. Leaving aside any question of fresh evidence, the approach to an appeal against sentence by a defendant, whether it is pursuant to s s42 Magistrates Court Act 1991 or s 352 Criminal Law Consolidation Act 1935, is the same. The appellate court will interfere with the sentence only if the exercise of discretion has miscarried in some way, either due to a mistake of law or fact or by reason of the taking into account of some extraneous factor or failing to give consideration to a relevant factor. If the sentence is manifestly disproportionate to the crime, the court will infer that the discretion has miscarried, even though the precise error cannot be identified: Housev The Queen (1936) 55 CLR 499; R v Wilton (1981) 28 SASR 362 per King CJ at 363; Williams v McDonald (1984) 113 LSJS 210 per Cox J at 213. Therefore, on a sentence appeal, such as this, it is not for the appeal court to exercise the decision afresh. Rather, the appeal court must be satisfied that the failure to suspend was erroneous, that the only correct decision the magistrate could have made on the evidence was to suspend: Renshaw v Director of Public Prosecutions (CTH) (1996) 67 SASR 139 per Doyle CJ.
The maximum sentence for a first offence of driving under disqualification is, by s 91(5) Motor Vehicles Act 1959, imprisonment for six months. The maximum for subsequent offences is imprisonment for two years. The magistrate considered whether the second, third and fourth offences should be punished more severely on account of the higher maximum penalty provided. However, she determined, having regard to the promising signs of rehabilitation, not to fix the penalties at a higher level. On any analysis, the head sentence imposed in the face of the repeated offending was a lenient one. Even if, on further analysis, taking into account the three months spent in custody could have been justified, I do not think the appellant could have succeeded on an argument that the head sentence was manifestly excessive.
Turning to the question of suspension, I would not be prepared to say that a period in custody prior to sentence could never form part of the circumstances amounting to good reason for suspending a sentence. If the period was referable to the offence for which sentence was being imposed, the argument might be a difficult one, as the period would have been deducted from the head sentence. If it was not so referable, and particularly where it was a longer period, I can imagine circumstances in which the period already served might be seen to be relevant to the process of rehabilitation. It could be counterproductive to that goal to require a defendant to return to prison. However, in this case I consider it would have been wrong for the magistrate to have suspended, or even partially suspended, the sentence. That is because the appellant had previously had the benefit of three suspended sentences.
The rationale for this approach was referred to in R v McDonald (1974) 8 SASR 388 where the court, comprising Hogarth, Wells and Sangster JJ, said (at 390) as follows:
It is proper, of course, that a court should impose as lenient a sentence as is reasonable in the circumstances of the particular case. But where an accused man has experienced leniency, including a bond (which he broke by committing further offences) and a series of comparatively short sentences over a period of years, which have neither led him to reform nor to avoid crime for fear of the consequences, then it becomes progressively more difficult for a court to extend leniency.
In R v Mangelsdorf; R v Perry; R v Richards (1995) 66 SASR 60 at 74-75, Doyle CJ, with whom Prior and Williams JJ concurred, said:
…in my opinion, the fact that Mr Richards had on four previous occasions been given suspended sentences…argued compellingly against a suspended sentence, notwithstanding the period of time since his last offence.
In R v Walker (1981) 27 SASR 315at 319, Wells J, White and Mohr JJ agreeing, said:
… it may, I apprehend, safely be said that after an adult offender has, upon being dealt with for a serious offence, received the benefit of a suspended sentence coupled with a solemn warning, a court should pause long, and have knowledge of grave and weighty matters in mitigation, before trusting the offender with a further period of probation.
The relevant prior sentences in Mr Fewings’ case were as follows.
On 25 November 2003, he was sentenced to nine months imprisonment for two counts of causing death by dangerous driving and causing bodily harm by dangerous driving. This sentence was suspended upon his entering into a 12 month good behaviour bond.
On 10 December 2004, the appellant received a suspended sentence for an offence of larceny committed on 17 July 2002. He was given a suspended sentence of five months imprisonment.
Mr Fewings received further leniency on 15 February 2005, when he was given a suspended sentence of one months imprisonment for driving under disqualification and failing to comply with a bail agreement, both committed on 14 August 2004.
In the face of the leniency previously extended to the appellant it would have been wrong in principle to give him the benefit of another suspended sentence. Of course there can be exceptions to any rule and I do not draw from the statements of principle set out above that a court could never suspend a sentence where the defendant had previously enjoyed similar leniency, particularly if just once. However, there is nothing so unusual in the circumstances of the appellant to call for such an approach. As the magistrate rightly said, the continuation of driving while disqualified amounted to acts of defiance and these had to be viewed against the fact that the appellant had been previously dealt with in the District Court for causing bodily harm by dangerous driving.
I can find no error of fact or principle in the approach taken to this matter by the learned magistrate. In my view the penalty imposed for repeated offending of this nature was, as I said, moderate.
I shall make the following orders:
1.appeal dismissed;
2.the appellant now be taken into custody to resume serving the sentence imposed in the Magistrates Court.