Forrest v Police - [2021] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
FORREST v POLICE
[2021] SASC 116
Judgment of the Honourable Justice Stein
7 October 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - IMPOSITION OF SECOND CUMULATIVE SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS
This is an appeal against a sentence imposed in the Magistrates Court of South Australia on conviction of four charges of driving a motor vehicle having been disqualified as a consequence of a drug driving offence, and having not since the end of the disqualification period been so authorised to drive, contrary to s 74(2ac) of the Motor Vehicles Act 1959 (SA).
The Magistrate imposed a total period of disqualification from driving of six years. That total disqualification period was comprised of a set of two concurrent three year periods of disqualification and a subsequent, cumulative set of two concurrent three year periods of disqualification.
The appellant appeals the sentence on the basis that the Magistrate failed to order the disqualification periods run concurrently and that the periods of disqualification are manifestly excessive.
Held, allowing the appeal:
1.The Magistrate was required to consider whether there was reasonable cause to postpone the start date of each disqualification pursuant to s 169A of the Road Traffic Act 1961 (SA) and the failure to do so constitutes a process error in the exercise of the Magistrate’s sentencing discretion.
2.The four periods of disqualification from driving contrary to s 74(2ac) of the Motor Vehicles Act 1959 (SA) are set aside and the sentences for that offending are remitted to the sentencing Magistrate.

Magistrates Court Act 1991 (SA) s 42(4); Motor Vehicles Act 1959 (SA) s 74(2ac), s 91(5), s 74(5)(a), and s 74(5)(b); Road Traffic Act 1961 (SA) ss 47B, 47B(3)(b) and 169A; Supreme Court Criminal Rules 2014 (SA) r 104V(1)(a) and r 104V(1)(c), referred to.
Kentwell v The Queen (2014) 252 CLR 601; Mullen v Director of Public Prosecutions (SA) (2020) 136 SASR 274; Pearce v The Queen (1998) 194 CLR 610; Playford v Police [2017] SASC 26; Police v Nowak (2000) SASR 551; Wittwer v Police [2004] SASC 226, applied.
Boehm v Milham (1980) 24 SASR 98; Fitzgerald v Police (2000) 113 A Crim R 413; R v Copeland (No 2) (2010) 108 SASR 398; R v Dube; R v Knowles (1987) 46 SASR 118, discussed.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; House v The King (1936) 55 CLR 499, considered.

FORREST v POLICE
[2021] SASC 116
Magistrates Appeal: Criminal
Overview

The appellant was charged with driving whilst disqualified on 24 October 2019 contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) (‘Motor Vehicles Act’). In relation to that offending, on 21 July 2020, the appellant entered a 12 month good behaviour bond. The appellant was also charged with four offences of driving a motor vehicle having been disqualified as a consequence of a drug driving offence, and having not since the end of the disqualification period been so authorised to drive, contrary to s 74(2ac) of the Motor Vehicles Act. The four occasions of unauthorised driving occurred on 14 May 2020, 3 August 2020, 28 October 2020 and 21 December 2020. For ease of reference I will refer in this judgment to these four offences as the Driving Unauthorised. The appellant pleaded guilty to the Driving Unauthorised. The appellant also admitted breach of his 12 month good behaviour bond. The appellant was convicted of the Driving Unauthorised and breach of bond was found proved.
A global sentence for the offending was imposed on the appellant on 22 June 2021. The Magistrate sentenced the appellant to a term of imprisonment of one month for the driving whilst disqualified (on 24 October 2019) and a further one month for the Driving Unauthorised. The period of two months of imprisonment was reduced to one month and 12 days after accounting for the 30 per cent reduction due to the appellant’s plea. That period of imprisonment was then suspended on the appellant entering a good behaviour bond for 18 months. The Magistrate also imposed a total period of disqualification from driving of six years in relation to the Driving Unauthorised. That total disqualification period was comprised of a set of two concurrent three year periods of disqualification and a subsequent, cumulative set of two concurrent three year periods of disqualification. It is the period of disqualification that is the subject of this appeal.
Background
The facts of the offending were not in dispute.
The appellant was disqualified from driving for the period of 7 August 2019 to 5 February 2020, having pleaded guilty to one count of driving a motor vehicle with methylamphetamine in his oral fluid.
On 24 October 2019, the appellant drove whilst disqualified from doing so.
On 14 May 2020, the appellant was in a stationary vehicle when approached by Police. The appellant told Police he was having lots of problems with life.
On 3 August 2020, the appellant was stopped by Police while driving. The appellant told Police he needed to go to the service station and a friend’s house.
On 28 October 2020, the appellant was stopped by Police while driving. The appellant told Police he drove because he had had an argument with his partner and needed to get out of the house.
On 21 December 2020, the appellant was stopped by Police while driving. The appellant told Police he drove to get his vehicle and belongings from his ex‑partner’s house and he could not afford to pay for the course he was required to complete to have his licence returned to him.
The appellant pleaded guilty to the Driving Unauthorised.
On 22 June 2021, the learned sentencing Magistrate imposed a global sentence for the offending as set out above. That sentence is appealed only in so far as it relates to the disqualification periods for the Driving Unauthorised.
Issues on appeal
On 8 September 2021, the appellant filed amended grounds of appeal to add an additional ground of appeal relating to an asserted failure by the Magistrate to apply the totality principle. At the commencement of the hearing on 13 September 2021, the appellant’s counsel abandoned the additional ground. Consequently, the appeal proceeded on the basis of the two grounds of appeal articulated in the notice of appeal dated 13 July 2021 as follows:
1.The learned sentencing Magistrate erred in failing to order that each of the three year disqualifications from driving imposed in respect of the Driving Unauthorised be served concurrently (Ground 1).
2.The sentence, in so far as it relates to the disqualification from driving, is manifestly excessive (Ground 2).
The Magistrate’s ex tempore remarks on sentence
The learned Magistrate found that on none of the occasions of offending did the appellant have a particularly good reason or emergency reason for driving whilst unauthorised. The Magistrate noted on some occasions the appellant thought there to be something pressing, such as leaving after an argument with his partner. However, the Magistrate stated that, as wise as it was to leave the situation, to leave in a motor vehicle was not wise.
The Magistrate noted the submissions of the appellant’s counsel as to the appellant’s personal circumstances, including his personal and romantic relationships, his connection with methylamphetamine and his health. Credit was given by the Magistrate to the appellant for appearing before the Court and entering a guilty plea at a relatively early stage, which, the Magistrate found, entitled him to a discount of 30 per cent off his sentence of imprisonment.
The appellant was re-sentenced by the Magistrate in respect of the 24 October 2019 offending of driving whilst disqualified, which occurred in breach of his good behaviour bond. A term of imprisonment of one month was imposed.
The learned Magistrate then considered the sentence to be imposed in respect of the Driving Unauthorised and remarked:[1]
In my view treating the matters globally I would have imposed a term of imprisonment of one month for all four matters. That gives you a total penalty of two months. I reduce that on account of your plea by 30% to one month and 12 days. That will be suspended on you entering into a bond to be of good behaviour for 18 months.
In relation to the four counts of driving unlicensed after a drug driving matter I have to impose a three year mandatory disqualification of your licence for each. You will have heard the discussion I had with you [sic] counsel about how they should mesh together with one and other. What I intend to do is impose the 14 May three year disqualification to commence at the same time as the 3 August disqualification. the two remaining disqualifications of 28 October and 21 December offending will occur simultaneously at the conclusion of that three year period. So essentially four lots of three become six, because I have made half of them operate at the same time as the others.
[1] Police v Forrest, Luke William, ex tempore remarks on penalty of Magistrate Sale, 22 June 2021, file No. MCPAR-20-12663 at 3.
Transcript of sentencing submissions
The parties prepared and provided to the Court an agreed transcription of the exchange between the Magistrate and counsel for the appellant (at 17:16 to 22:10 of the audio recording of the hearing before the Magistrate) which comprised the “discussion I had with you [sic] counsel” referred to in the Magistrate’s remarks.
During this exchange, counsel for the appellant submitted that it was open to the Magistrate to order some concurrency. He noted that the offending occurred over the course of approximately five months and that this, when placed in context with the appellant’s difficulties in his romantic relationship, his personal circumstances at the time and his methylamphetamine addition, militated toward complete concurrency.
In relation to that submission, the Magistrate stated he would not order complete concurrency as “Tichy would tend to suggest that concurrency is appropriate for matters that could properly be described as a similar course of conduct”.[2] The Magistrate gave the example of a number of punches in the course of a fight or a number of transactions in the course of a greater fraud. The Magistrate then noted the four occasions of Driving Unauthorised occurred over approximately seven months and one week and on each occasion the appellant was told and acknowledged he knew he was breaking the law. The Magistrate stated he was with the appellant that, “even though I think it is contrary to law, some concurrency is warranted to avoid the crushing nature of a 12 year disqualification to make all of the periods of disqualification run concurrent, in my view, would be contrary to the will of Parliament and contrary to the law” and added that he intended to make some allowance to avoid the sentence being crushing.
[2] Agreed transcript of 17:16-22:10 of the audio recording of the hearing before the Magistrate on 22 June 2021 at 1.
The Magistrate noted the appellant knew he was breaking the law on each occasion, and that the offending was repeated, the appellant was warned, the appellant’s car was taken away twice, and that this did not stop the offending. To this, counsel for the appellant reiterated the appellant’s personal circumstances. The Magistrate remarked:[3]
Mmm, but unfortunately it is a penalty that Parliament has mandated it for one offence, and the minimum for one offence, you know, I, we are all rather proceeding on the basis that I wouldn’t go above that minimum for the third and fourth, and I don’t intend to, because I agree with you, it is a very harsh penalty but there is a degree to which, as much as it would be harsh to go above it, to go below it so that Mr Forrest basically gets no disqualification for three of these matters, in my view, is a step too far, but I’ve heard your submissions.
[3] Agreed transcript of audio recording of the hearing before the Magistrate on 22 June 2021 at 1.
It is not clear to me whether the Magistrate thought that it was contrary to law to sentence concurrently because he had concluded that the offending constituted four separate occasions of criminality (in accordance with Attorney-General (SA) v Tichy (‘Tichy’)), or because the minimum mandatory penalties imposed by s 74(5) of the Motor Vehicles Act precluded that outcome (or for some other reason).
The Magistrate’s attention was not drawn to s 169A of the Road Traffic Act1961 (SA) (‘Road Traffic Act’).
General principles on appeal
This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) (‘Act’) and Chapter 12A of the Supreme Court Criminal Rules 2014 (SA) (‘Rules’). Appeals from a Magistrate to a single Judge of the Supreme Court are by way of re-hearing pursuant to r 104V(1)(a) of the Rules. The Court nonetheless has discretion to hear further evidence pursuant to r 104V(1)(c) of the Rules and s 42(4) of the Act if the interests of justice so require.
In relation to the approach on appeal, White J stated in Wittwer v Police:[4]
The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or it if has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly: House v The King (1936) 55 CLR 499 at 505 …’
[citations omitted]
[4] [2004] SASC 226, [16].
In the decision of Mullen v Director of Public Prosecutions (SA) Lovell J, in referring to House v The King[5] remarked:[6]
That is, the appellant must demonstrate error on the part of the magistrate, in that he ignored relevant considerations, relied upon irrelevant matters, or made an error of fact or of law. These matters are generally referred to as “process errors”. If no process error can be identified the appellant must show an “outcome error”. That is, without identifying any precise error, the magistrate’s discretion could not have been properly exercised except in favour of exclusion of the evidence. To put that last matter another way, the discretion could only have been exercised in a manner different from the way in which it was and that a substantial wrong has occurred.
Ground 1
[5] (1936) 55 CLR 499.
[6] (2020) 136 SASR 274, [22].
The appellant’s submissions
The appellant’s counsel submitted that there were two process errors in the reasoning of the Magistrate.
The first process error was said to be that the Magistrate failed to address s 169A of the Road Traffic Act in the exercise of his discretion and to start from a position of sentencing based on concurrency as required by that section.
The appellant’s counsel asserted that although the principles regarding the accumulation of sentences are well established, different (albeit somewhat similar) principles apply where the Court is considering the accumulation or concurrence of sentences of imprisonment as compared to the accumulation or concurrence of periods of disqualification from driving (whether mandatory or otherwise).
The appellant’s counsel commenced by referring to the well-known statement of Wells J in Tichy concerning the principles by which a sentencing judge may consider whether sentences should be served concurrently or consecutively.[7]
[7] (1982) 30 SASR 84 at 92-93.
Counsel for the appellant placed emphasis on the statement of Kourakis J (as he was then) in R v Copeland (No 2) to the effect that, in considering whether sentences should be cumulative, there can be no hard and fast rules and that too much emphasis should not be placed on whether multiple offences are characterised as a single offence or a series of courses of conduct. [8] Kourakis J (as he was then) stated:[9]
[…] Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.
[8] (2010) 108 SASR 398 at [106].
[9] (2010) 108 SASR 398 at [106].
Counsel for the appellant submitted that while the principles referred to above have some part to play, different considerations apply when a court is determining the extent to which periods of disqualification from driving should be served cumulatively or concurrently.
Counsel for the appellant submitted that it constituted a process error within the meaning of House v The King[10] for the Magistrate to commence from a starting point that the disqualifications were to be cumulative before allowing for a degree of concurrency.
[10] (1936) 55 CLR 499.
Counsel submitted that the correct starting point is s 169A of the Road Traffic Act. That provision provides:
169A – Power to postpone commencement of disqualification
If, under this Act or any other Act, a court orders that a convicted person be disqualified from holding or obtaining a driver’s licence, the court may, if it is satisfied that reasonable cause exists for doing so, order that the disqualification take effect from a day or hour subsequent to the making of the order.
Counsel submitted that the effect of this section is to require as the starting point that any disqualification imposed commences immediately unless the Court is satisfied there is reasonable cause for making an order to the contrary. He submitted this mandates a start point of concurrency.
The appellant’s counsel relied for his proposition on Fitzgerald v Police (‘Fitzgerald’).[11] He placed particular reliance on the following statement of Mullighan J:[12]
It is to be remembered that in cases of this nature, the periods of licence disqualification are to be served concurrently unless there is reasonable cause for the contrary. It could not be said that there is reasonable cause if the accumulation of the periods of licence disqualification would be manifestly excessive in all of the circumstances.
[11] (2000) 113 A Crim R 413, [26]-[28].
[12] Fitzgerald v Police (2000) 113 A Crim R 413, [27].
Counsel for the appellant submitted that “cases of this nature” is a reference to cases involving disqualifications under the Road Traffic Act.
The second process error was said to be that the Magistrate approached the question of concurrency only by considering whether or not the four occasions of Driving Unauthorised were separate incursions into criminality. Counsel said that, in doing so, the Magistrate effectively fettered his discretion and failed properly to consider all of the circumstances of the appellant which were relevant to the exercise of the sentencing discretion. He submitted that the Magistrate’s approach was akin to reversing the onus of proof. He also submitted that the Magistrate used concurrency to give effect to the principle of totality as opposed to properly giving consideration to questions of concurrency as he was required to do.
The Respondent’s submissions
The respondent’s counsel submitted that the reasoning of the Magistrate did not give rise to any process error. He submitted that s 169A empowers a sentencer to make disqualification periods consecutive if there is reasonable cause to do so and that power is to be exercised in accordance with ordinary sentencing principles. He submitted that in determining whether multiple sentences should be made consecutive, relevant considerations include whether each offence is a separate incursion into criminality and the intention of Parliament in relation to the penalty. The respondent’s counsel asserted that the Magistrate applied the appropriate disqualification period, then identified that consecutive sentences were supported by the facts and then considered the crushing nature of a 12 year disqualification before applying partial concurrency to reach an appropriate sentence.

Counsel for the respondent asserted that s 169A is not a basis to view licence disqualifications in any different way in respect of sentencing principles and the standard sentencing principles apply. He distinguished the decision of Fitzgerald on the basis that, in that case, the offending arose out of one event with a common factual nexus, unlike the separate occasions of offending in the case at bar.
Counsel for the respondent submitted that to make all four disqualification periods completely concurrent would be to result in an identical disqualification to that if the appellant had only committed one offence. Such a result was said to fail to give proper effect to the will of Parliament and the need for personal and general deterrence. Counsel referred to R v Dube; RvKnowles where King CJ stated: [13]
Whether the sentences were made cumulative or concurrent the essential thing was to ensure that the punishment imposed adequately reflected the seriousness of the criminal conduct. It is of the utmost importance that the impression should not be gained that if a crime is committed, another crime of the same sort can be committed with little or no increase in the punishment.
[13] (1987) 46 SASR 118, 124.
Section 169A of the Road Traffic Act
Section 169A of the Road Traffic Act confers the power to order that the start date for a period of disqualification commence on a day subsequent to the day on which the order is made.
Authorities on s 169A
In Boehm v Milham (‘Boehm’) the Court concluded that s 169A empowers a court to make disqualification periods cumulative on one another, even though the main object of the section may have been to empower the Court to defer the start of the period of disqualification in the interests of an offender.[14] King CJ (with whom Wells J and Williams AJ agreed) stated that s 169A has the effect of empowering the Court to make one licence disqualification period commence at the end of another period of disqualification and said that the “power should be exercised in accordance with proper sentencing principles”.[15]
[14] (1980) 24 SASR 98, 104 (King CJ). See also Fitzgeraldv Police (2000) 113 A Crim R 413, [22]; Police v Nowak (2000) SASR 551, [26]-[27] (Doyle CJ).
[15] Boehm v Milham (1980) 24 SASR 98, 104.
In Police v Nowak (‘Nowak’),[16] the Full Court, comprising Doyle CJ, Debelle and Bleby JJ, considered an appeal in relation to sentencing. The respondent had pleaded guilty to two offences of driving a motor vehicle under the influence of alcohol contrary to s 47B of the Road Traffic Act. The Magistrate had ordered that the two periods of disqualification be served concurrently.
[16] (2000) 76 SASR 551.
Chief Justice Doyle considered whether the Magistrate had power to make the periods of disqualification for the two offences concurrent. Doyle CJ acted on a concession by counsel that the Magistrate possessed that power. Doyle CJ continued to say:[17]
The power to make an order that a period of disqualification is to be cumulative on another period of disqualification is to be exercised in accordance with the ordinary and well-known principles in relation to concurrency and cumulation. In the present case the offences of 17 January 1999 and 26 March 1999 were quite distinct offences. On ordinary principles one would expect the penalties in relation to each of those offences to be cumulative. However, the discretion vested in the magistrate required him to consider all relevant circumstances, and what I have referred to as the ordinary result is not necessarily the actual result. In particular, the magistrate was entitled and obliged to take into account considerations of totality.
[17] Police v Nowak (2000) 76 SASR 551, [27].
Having reached this conclusion, Doyle CJ continued to address the potential impact of s 47B(3)(b) of the Road Traffic Act. That section provided a minimum period of disqualification for the offence in question. In Nowak, counsel for the appellant did not submit that s 47B(3)(b) deprived the Magistrate of the power to decline to order that the second period of disqualification be cumulative upon the first. Doyle CJ was prepared to act upon that concession in the absence of argument to the contrary but stated that he did not wish to be taken as having decided that the concession was necessarily correct. Doyle CJ continued to say that, in his opinion, the terms of the minimum disqualification provision were relevant to the exercise of the power to order that a period of disqualification be cumulative upon another disqualification. He said:[18]
[30] […] The provision indicates an intention on the part of Parliament that ordinarily there will be an effective period of disqualification in respect to an offence against s 47B. That is a significant matter to take into account in considering the exercise of the discretion under s 169A. However, it is no more than a matter to be taken into account, along with others, and cannot dictate the result of the exercise of the discretion.
[31] Ordinarily one would expect, in a case of multiple offences against s 47B, that periods of disqualification would be imposed cumulative one upon the other. But in the particular circumstances of a particular case, it is open to a magistrate not to make that order.
Chief Justice Doyle had earlier stated that the power to impose one penalty for a number of offences cannot be used to avoid the statutory requirement of imposing a minimum penalty.
[18] Police v Nowak (2000) SASR 551, [30] – [31].
Justice Debelle agreed with the reasons of the Chief Justice and also stated that in other circumstances he may have allowed the appeal for the purpose of making the periods of disqualification cumulative. However, he was dissuaded from that outcome by the length of time it had taken for the appeal to come before the Court.
Justice Bleby dissented as he concluded that, in the circumstances, the Magistrate erred in making the two periods of disqualification concurrent.
Justice Bleby was also prepared to act on the concession that the minimum disqualification provision did not prevent the Magistrate from making the periods of disqualification concurrent. However, he too said he would not wish it to be assumed that the concession was necessarily correct.
Justice Bleby said that it was well established that, without s 169A of the Road Traffic Act, a court would have no power to order that disqualification commence on a future date. He said the implication from s 169A is that disqualification will normally commence on the date of the order but the Court has power to order commencement on a future date if the Court is satisfied there is reasonable cause for doing so. He said the section thus enables periods of disqualification to be made cumulative upon each other but continued that “the Court must still be satisfied that reasonable cause exists for doing so.”[19]
[19] Police v Nowak (2000) 76 SASR 551, [45].
Justice Bleby then considered the impact of the minimum disqualification provision contained in s 47B(3)(a). In Bleby J’s view, in most cases, that section will constitute “reasonable cause” for the purposes of s 169A and it would be sufficient to require the Court to make disqualification periods cumulative unless there were special circumstances applicable to the respondent requiring the disqualifications to be concurrent.[20]
[20] Police v Nowak (2000) 76 SASR 551, [47]-[48].
In Fitzgerald, the appellant pleaded guilty to one charge of failing to stop after an accident and one charge of failing to render assistance to a person injured in an accident contrary to the Road Traffic Act. Those events occurred out of the same incident. The appellant collided with a person on the road and then failed to go back to assist the person because she thought she had killed him.
Justice Mullighan referred to Boehm and acknowledged that s 169A of the Road Traffic Act enables a court to order that periods of disqualification be cumulative upon one another and the power must be exercised in accordance with proper sentencing principles. He also referred to the views of Doyle CJ in Nowak that the power must be exercised in accordance with ordinary and well-known principles concerning concurrence and accumulation, including considerations of totality.[21]
[21] Fitzgerald v Police (2000) 113 A Crim R 413, [22].
In Fitzgerald, counsel for the respondent submitted that the Magistrate was obliged to impose the minimum period of licence disqualification for each offence and that it was not appropriate to reduce either period by concurrency or overlapping.[22] In Fitzgerald, counsel did not make the concession which was made by the appellant in Nowak (that is, that the Court was not deprived of the power to decline an order under s 169A that the second period of disqualification be cumulative).
[22] Fitzgerald v Police (2000) 113 A Crim R 413, [23].
In Fitzgerald, Mullighan J considered the interpretation of s 169A in Boehm and Nowak established the power to order cumulative licence disqualification periods. He referred to the acceptance by the majority that the provision for the minimum disqualification period would be relevant in the exercise of the discretion under s 169A. Mullighan J then went on to consider the statements of Bleby J in Nowak to the effect that the minimum disqualification provision would be sufficient to require the Court to make the periods of disqualification cumulative unless there were special circumstances requiring them to be concurrent. Mullighan J did not accept that there should be such a qualification of the words “reasonable cause”.[23] He said those words give a wide discretion which should not be circumscribed by the suggestion that the discretion may only be exercised in favour of concurrency where there are special circumstances or in unusual cases. It was in this context that Mullighan J continued to say that:[24]
It is to be remembered that in cases of this nature, the periods of licence disqualification are to be served concurrently unless there is reasonable cause for the contrary. It could not be said that there is reasonable cause if the accumulation of the periods of licence disqualification would be manifestly excessive in all of the circumstances.
Application of Authorities
[23] Fitzgerald v Police (2000) 113 A Crim R 413 at [26].
[24] Fitzgeraldv Police (2000) 113 A Crim R 413 at [27].
In the case at bar, s 74(5)(a) of the Motor Vehicles Act provides for a minimum period of disqualification of not less than three years and s 74(5)(b) provides that the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence. Although a different provision, in my view, the reasoning of the Court in Nowak in relation to s 47B applies equally to s 74(5).
I do not consider the reasoning in Nowak, in particular the statements of Doyle CJ at [27], supports the breadth of the contention put by counsel for the appellant that s 169A mandates in all cases a starting point of concurrency or that different sentencing principles apply as between sentences of imprisonment and disqualification. In Nowak, in considering the disqualification penalty, the Court did not distinguish between sentences of imprisonment and sentences relating to disqualification. Doyle CJ expressly recognised that the power to order that periods of disqualification be cumulative are to be exercised in accordance with ordinary and well-known principles concerning concurrency and cumulation. In Nowak, there were separate instances of offending and Doyle CJ considered that on ordinary principles one would expect the penalties in relation to the offences to be cumulative. It appears this “start point”, while in the context of s 169A, evinced the application of the usual principles in determining concurrency or cumulation.
It is also not apparent that the reference by Mullighan J in Fitzgerald at [27] to “cases of this nature” supports the breadth of the proposition put by counsel for the appellant, particularly given the two offences in that case arose out of the same factual circumstances and the references by Mullighan J to Boehm and Nowak.
Requirement to consider
I do not consider the cases referred to support the breadth of the proposition put by counsel. However, I do consider that the Magistrate was required to consider s 169A, in particular to consider whether there was reasonable cause to postpone the start date of each disqualification (so as to order cumulative sentences) even though the same factors are likely to be relevant to the exercise of the discretion. Although only Bleby J expressly stated in Nowak that the Court must be satisfied that reasonable cause exists for making periods of disqualification cumulative, I consider it implicit in the reasoning of the majority.
Counsel for the appellant indicated that, regrettably, the Magistrate’s attention was not drawn to s 169A. It is not apparent from the reasons or transcript of the hearing that the Magistrate was aware of the section or considered whether, in all of the circumstances, there was reasonable cause to postpone the start date of any period of disqualification (and thereby accumulate the sentences). Accordingly, I consider there was a process error in the exercise of the Magistrate’s sentencing discretion.
Sentencing Outcome
It is conceivable that the Magistrate would have reached the same position on sentence had he expressly turned his mind to “reasonable cause” under s 169A. He considered the minimum disqualification period for the offences, factors personal to the appellant, provided for some concurrency in addressing totality, but also considered that complete concurrency was insufficient as it would fail adequately to penalise the appellant for all of the instances of offending.
However, counsel for the appellant submitted that if there has been a process error and the exercise of the discretion by the Magistrate has thereby miscarried, it is the duty of the appeal Court to exercise the discretion afresh even if the same outcome may have eventuated.[25] In Kentwell v The Queen the majority of the High Court said:[26]
When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration (135), the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh […]
[25] Kentwell v The Queen (2014) 252 CLR 601, [41]-[42]; Police v Schutt [2018] SASC 75, [48].
[26] Kentwell v The Queen (2014) 252 CLR 601, [42].
Counsel indicated that he wished to put further material in relation to the appellant’s medical circumstances to the Court in the event the sentencing discretion is to be exercised afresh. In these circumstances, I consider it appropriate to remit the matter for re-sentencing. As the disqualifications constituted one aspect of the sentences imposed by the Magistrate, I consider it appropriate to remit the matter to the sentencing Magistrate for re-sentencing.
Second asserted process error
Although it is not strictly necessary for me to do so, I proceed to consider the second asserted process error.
In reading the agreed transcript of the sentencing submissions[27] with the ex tempore remarks on penalty, I am not persuaded that the Magistrate limited his consideration only to the question whether the four occasions of offending constituted separate incursions into criminality and that he did not consider the appellant’s personal circumstances. The Magistrate referred expressly to counsel’s submissions about the state of the appellant’s life, the appellant’s personal relationships, his romantic relationships and their connections with the drug methylamphetamine. He also referred to the fact that on each and every occasion the appellant was told, and on each occasion acknowledged, that he knew he was breaking the law.
[27] Agreed transcript of 17:16 - 22:10 of the audio recording of the hearing before the Magistrate on 22 June 2021.
I am also not persuaded that the Magistrate only considered concurrency in the context of totality.
In determining the appropriate sentence for multiple offences the following process is followed: [28]
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
[citations omitted]
[28] Pearce v The Queen (1998) 194 CLR 610, [45].
Given the uncertainty associated with the Magistrate’s references to concurrent orders not being in accordance with law, the Magistrate’s reasoning process is not entirely clear. However, remarks on penalty given by magistrates, and particularly ex tempore remarks, should not be analysed in the same way as considered reasons for judgment.[29] On balance, I consider the Magistrate did consider concurrency (and excluded concurrency) before considering totality (in which he allowed for concurrency). I am therefore not persuaded there is a process error as contended for by counsel for the appellant.
[29] Playford v Police [2017] SASC 26, [23] (Vanstone J).
Ground 2
While specific consideration should have been given to s 169A of the Road Traffic Act, it does not necessarily follow that the sentence imposed by the Magistrate was manifestly excessive. Given my conclusion that the Magistrate erred in his approach in relation to the first asserted process error, it is not necessary for me to consider, and I do not form any views on, whether the sentence was manifestly excessive.
Orders
The appeal is allowed. The disqualifications for the Driving Unauthorised which are the subject of the appeal are set aside. The disqualification sentences for the Driving Unauthorised are remitted to the sentencing Magistrate. The appellant remains subject to disqualification from driving pending re-sentencing. So as to remove any doubt, I do not disturb any of the other orders made by the Magistrate.