GRAY v Police

[2006] SASC 12

Supreme Court of South Australia

(Magistrates Appeals: Civil)

GRAY v POLICE

Judgment of The Honourable Justice Besanko (ex tempore)

18 January 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence – on 17 November 2005, appellant convicted of various driving and dishonesty offences and sentenced by magistrate to 28 months’ imprisonment and non-parole period of 15 months, suspended upon appellant entering into bond – on 30 November 2005, appellant convicted of further driving offences and sentenced by different magistrate – sentence of 17 November 2005 not known to magistrate imposing sentence on 30 November 2005 – appellant sentenced on 30 November 2005 to, inter alia, six months’ imprisonment for offence of driving while disqualified – appeal against that sentence only.

Held, allowing appeal and setting aside sentence of six months’ imprisonment – respondent conceded that earlier sentence relevant to sentencing discretion and should be taken into account in fixing penalty – sentencing of appellant for offence of driving while disqualified remitted to magistrate who imposed sentence on 17 November 2005.

GRAY v POLICE
[2006] SASC 12

Magistrates Appeal

1. BESANKO J (Ex tempore):           This is an appeal against sentence.

2. On 30 November 2005, the appellant was sentenced in the Elizabeth Magistrates Court to six months’ imprisonment for the offence of driving while disqualified from holding or obtaining a licence.  The appellant was also convicted of the offence of driving an unregistered vehicle, for which he received no further penalty, and the offence of driving an uninsured vehicle, for which his driver’s licence was disqualified for a period of 12 months.  All three offences occurred on 13 October 2004.

3. The appellant appeals against the sentence of six months’ imprisonment for the offence of driving while disqualified from holding or obtaining a licence.

4. The respondent concedes that there was an error in the exercise of the sentencing discretion by the magistrate in that there was a sentence imposed on 17 November 2005 which was not known to the magistrate and which was relevant to the sentence to be imposed in relation to the offences before the court on 30 November 2005.

5. On 17 November 2005, the appellant was convicted in the Magistrates Court of six offences of driving while disqualified, various other driving offences and several dishonesty offences.  A different magistrate to the magistrate who passed sentence on 30 November 2005 sentenced the appellant in relation to those offences, and he imposed a sentence of 28 months’ imprisonment with a non-parole period of 15 months.  The sentence of imprisonment was suspended upon the appellant entering into a bond subject to conditions.

6. The offences the subject of the sentence imposed on 17 November 2005 included driving while disqualified offences that both pre-dated and post-dated the offences the subject of the sentence imposed on 30 November 2005.

7. At the time of sentencing on 30 November 2005, the magistrate was not aware of the earlier sentence, or that it had been suspended.  It would appear that the police prosecutor relied upon an outdated offender history report in making his submissions, and I gather that the appellant, who was unrepresented, did not make any submissions as to penalty.

8. It is clear that the earlier sentence was relevant to the sentencing discretion and should have been taken into account in fixing a penalty.  Accordingly, the appeal must be allowed and the sentence of six months’ imprisonment set aside.

9. I agree with the respondent’s submission that it is appropriate to remit the sentencing of the appellant for the offence of driving while disqualified on 13 October 2004 to the magistrate who sentenced the appellant on 17 November 2005 in view of the fact that that magistrate has previously heard submissions as to the personal circumstances of the appellant.

10. It was also submitted by the appellant that the magistrate erred in not advising the appellant that he was intending to impose an immediate custodial sentence and, as part of that advice to the appellant, of giving him an opportunity to obtain an adjournment so as to secure legal representation.

11. An affidavit from the police prosecutor who attended court on 30 November 2005, Mr Neil Jenner, was put before me.  Mr Jenner deposes to a conversation between himself and the appellant.  After the conversation, the appellant intimated that he wished to proceed without legal representation and enter guilty pleas to each count.  The magistrate advised the appellant of the serious nature of the offence and the maximum penalty that the court could impose.  The magistrate queried whether the appellant wished the matter to be adjourned so that he could have legal representation.  The appellant advised the magistrate that he wished to have the matter finalised and would plead guilty at that time.  The charges were then read and the appellant entered a plea of guilty to each count.  Mr Jenner then made submissions to the court.

12. Counsel for the appellant submitted that after submissions as to penalty and before imposing sentence, the magistrate should have advised the appellant that he was intending to impose an immediate custodial sentence. 

13. I very much doubt that the magistrate erred in proceeding in the way in which he did, but as I did not hear full submissions on this point, I do not propose to decide the appeal on this ground.

14. The orders of the Court will be:

    1The appeal is allowed and the sentence imposed for the offence of driving while disqualified on 13 October 2004 is set aside.

    2The sentencing of the appellant for the offence referred to in paragraph 1 above, is remitted to Mr Millard SM, sitting at the Magistrates Court at Elizabeth in the State of South Australia, at a date and time to be fixed.

    3No orders as to costs.

    4Bail to continue.

    5Liberty to apply.