Hart v Police - [2007] SASC 430

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HART v POLICE
[2007] SASC 430
Judgment of The Honourable Justice Gray
7 December 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - TIME SPENT IN CUSTODY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION
Appeal against sentence – appellant convicted of driving while disqualified – at time of the offending appellant on parole for various offences including driving related offences for which imprisonment of two years and ten months, with non-parole period of nine months had been imposed – appellant pleaded guilty to driving at dangerous speed and manner, failing to comply with request to stop his vehicle, driving with excess blood alcohol – Magistrate sentenced appellant to four months imprisonment for the offence of driving under disqualification – appellant’s parole cancelled – Magistrate ordered pursuant to s 75 of the Correctional Services Act 1982 (SA), appellant was to serve the balance of earlier sentence – total term of imprisonment to be served by the appellant was two years, two months and 29 days with non-parole period of 12 months – whether sentence for driving while disqualified to be cumulative on the unexpired portion of appellant’s existing non-parole period - whether Magistrate erred in approach to sentencing – whether Magistrate erred in not suspending sentence – whether sentence for offence of driving under disqualification manifestly excessive – whether Magistrate should have taken into account appellant’s time in custody – whether Magistrate erred in considering manner of appellant’s driving an aggravating factor – double jeopardy - whether other authorities of assistance in arriving at appropriate sentence – whether Magistrate erred in failing to give regard to factors in s 10 of the Criminal Law (Sentencing) Act 1988 (SA) – whether Magistrate’s reasons inadequate.
Held: Appeal allowed, appellant re-sentenced: Sentence imposed by Magistrate with respect to the offence of driving while disqualified set aside – head sentence of 12 weeks reduced to seven days on account of appellant’s guilty plea, contrition and time already spent in custody – other mitigating features present - circumstances of offending do not require suspension - Magistrate’s consideration of appellant’s manner of driving as an aggravating factor lead to error - Magistrate’s reasons brief but adequate – appropriate sentence to be determined by facts and circumstances of each case – term of imprisonment of seven days to be cumulative on the unexpired portion of appellant’s existing non-parole period of one year, ten months and 29 days – total term of imprisonment of one year, 11 months and five days to have commenced on date of sentencing by Magistrate – good prospects for rehabilitation and unusual circumstances warrant shorter non-parole period of six months.
Motor Vehicles Act 1959 (SA) s 91; Correctional Services Act 1982 (SA) s 75; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 31, s 32, s 38, referred to.
R v Bartels (1986) 44 SASR 260; Barnes v Police [2006] SASC 295; Maxwell v Police (1998) 102 A Crim R 374; Long v Police (1998) 72 SASR 515; R v O'Donnell (1974) 7 SASR 114; R v Hitchens (1995) 184 LSJS 337; Marshall v Western Australia [2007] WASCA 96; Ware v Betts (1987) 134 LSJS 212; Elliott v Harris (No 2) (1976) 13 SASR 516; Hardwick v Police [1999] SASC 446; Godfrey v Police [2007] SASC 229; Bates v Police (1997) 70 SASR 66; Police v Cadd & Ors (1997) 69 SASR 150; Johns v Police (unreported, Supreme Court of SA, Lander J, 24 June 1998), considered.

HART v POLICE
[2007] SASC 430
Magistrates Appeal
GRAY J

This is an appeal against a sentence imposed by a magistrate for the offence of driving while disqualified, contrary to section 91 of the Motor Vehicles Act 1959 (SA).[1]
[1] Section 91(5) of the Motor Vehicles Act 1959 (SA) provides:
A person must not drive a motor vehicle on a road while his or her licence or learner's permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner's permit.
Maximum penalty:
For a first offence—imprisonment for 6 months.
For a subsequent offence—imprisonment for 2 years.
Background
The facts forming the basis of the offending are not in dispute. On 2 December 2006, shortly after 1.15 am, Jeffrey Robert Hart, the defendant and appellant, was apprehended by police. His partner had asked him to buy cigarettes from a service station. She was unaware that the appellant was disqualified from driving at that time. The appellant did not wish to cause tension in their relationship by refusing her request. Although disqualified from driving until 21 July 2009, he felt compelled to drive, and did so. He had consumed alcohol before driving.
The appellant was charged with the offences of driving at a dangerous speed and manner (count 1), failing to comply with a request to stop his vehicle (count 2), driving with excess blood alcohol (count 3), and driving while under disqualification (count 4). The maximum sentence for driving while under disqualification is imprisonment for two years.
The appellant pleaded guilty to all counts. For the offence of driving at a speed and in a manner that was dangerous, he was disqualified from holding or obtaining a driver’s licence for a period of two years, commencing at the expiration of the three year disqualification period already imposed on 21 July 2006. For the offences of failing to comply with a request to stop his vehicle and driving with excess blood alcohol, the appellant was fined $500 and disqualified from holding or obtaining a driver’s licence for a further period of six months commencing at the expiration of the licence disqualification period imposed in relation to count 1. For the offence of driving under disqualification, a sentence of imprisonment of four months was imposed. It is this final sentence that is the subject of the appeal before me.
The offences were committed while the appellant was on parole. He had been sentenced on 21 July 2006 to a term of imprisonment of two years and 10 months, with a non-parole period of nine months, backdated to commence on 1 January 2006. This sentence was imposed with respect to many offences, including offences of trespass and dishonesty, as well as driving related offences.
As a result of the imposition of a term of imprisonment on the charge of driving while under disqualification, the appellant’s parole was cancelled. The Magistrate recorded that, pursuant to section 75 of the Correctional Services Act 1982 (SA), the appellant was to serve the balance of the earlier sentence of imprisonment being a period of one year, ten months and 29 days. The total term of imprisonment to be served by the appellant, under the Magistrate’s sentence, was therefore a period of imprisonment of two years, two months and 29 days. The Magistrate fixed a non-parole period of 12 months with respect to this total period. The term of imprisonment and non-parole period were ordered to commence from the date that the appellant was taken into custody on 13 July 2007.
It is convenient to set out the Magistrate’s reasons in full:
The maximum penalty for driving in a manner dangerous is two years imprisonment. You haven’t committed that offence previously. Your driving on this occasion was extremely poor. You might have had a degree of control of your vehicle but if someone had run in front of you, there would have been very little you could have done. The person would have been killed. However having regard to the fact that you don’t have a prior conviction for this offence I don’t think a sentence of imprisonment is appropriate. A substantial period of licence disqualification is appropriate because your driving was dangerous. I will disqualify you from holding or obtaining a driver’s licence for a period of two years.
In relation to the second and third offences I will proceed under Section 18A. I impose convictions. You will be disqualified from holding or obtaining a driver’s licence for a period of six months. I impose a fine of $500.
You have a previous conviction for driving disqualified. The maximum penalty is two years imprisonment. Your driving whilst disqualified is aggravated by the manner in which you drove. But for your plea of guilty I would have imposed a sentence of five months for that driving. Having regard to your plea I will reduce that to four months. I need to consider whether I should suspend that sentence. Having regard to your record I decline to suspend the sentence. By reason of Section 75 of the Correctional Service Act I have to order that you serve the unexpired period [of] your parole which is one year, ten months and twenty nine days. The four month sentence will be added onto that making a new head sentence of two years, two months and twenty nine days. I am required to fix a new non parole period. I fix a non parole period of 12 months.
The two year disqualification that I have imposed in relation to the first charge on file number 06/1599 is to commence upon the expiration of the three year disqualification imposed on 21 July 2006. The six month disqualification I have imposed in relation to the third charge will commence on the expiration of the two year period.
The sentence that I have imposed and the non parole period applying to it, will commence from the time you were taken into custody on 13 July 2007.
The Appeal
The appellant contended that error had occurred in the Magistrate’s approach to sentencing. It was also submitted that any sentence of imprisonment imposed should have been suspended. It was pointed out that the term of imprisonment imposed for motor vehicle and road traffic offending had the statutory consequence of cancelling the appellant’s parole and having him serve the balance of the earlier term of imprisonment for a period of one year, ten months and 29 days. It was further argued, in any event, the sentence imposed for the offence of driving under disqualification was manifestly excessive.
Time Spent in Custody
As at the date that the appellant was sentenced, he had already spent over eight weeks in custody. The Magistrate backdated the sentence in order to take this time into account. However, there are authorities of this Court that suggest that section 75 of the Correctional Services Act, together with section 31(2) of the Criminal Law (Sentencing) Act 1988 (SA), preclude backdating.[2]
[2] R v Bartels (1986) 44 SASR 260. However, see R v Czubak (2005) 92 SASR 400 at [19]-[22].
The appellant submitted that, with respect to the present offending, the Magistrate should have imposed a sentence for the offence of driving while disqualified, taking into account the appellant’s time in custody. This is a course approved by the Court in Czubak.[3] The Crown accepted that the Magistrate should not have backdated the commencement of the period of imprisonment and the non-parole period, and that he should have followed the course suggested by the appellant. It was submitted that this Court is in a position to reflect the intent of the Magistrate by making an adjustment to the sentence to reflect the above considerations, but in substance impose the same sentence.
[3] R v Czubak (2005) 92 SASR 400.
The sentence imposed by the Magistrate will need to be set aside, and the appellant re-sentenced in accordance with the statutory requirements. There will be a need to bring into account the time that the appellant has spent in custody, in accordance with the authorities.
An Irrelevant Consideration
The appellant submitted that the Magistrate took into account an irrelevant consideration when he concluded: “Your driving whilst disqualified is aggravated by the manner in which you drove”. The appellant contended that the speed at, and manner in which he drove was not an aggravating factor. That conduct was the subject of a separate charge.[4] In the present case the appellant had been charged with, pleaded guilty to, and separately sentenced for the offence of driving at a speed and in a manner dangerous to the public. He should not be punished twice for the same conduct.
[4] See Barnes v Police [2006] SASC 295 at [18]-[20]; citing Police v Maxwell (1998) 102 A Crim R 374 and Long v Police (1998) 72 SASR 515.
The Crown accepted that the Magistrate should not have treated the speed at, and the manner in which the appellant drove as an aggravating factor of the offence of driving while disqualified. The speed and manner of driving, itself the subject of another charge, was not relevant to sentencing for the offence of driving while disqualified.[5]
[5] Maxwell v Police (1998) 102 A Crim R 374 at 379.
It is probable that this incorrect approach to sentencing led the Magistrate to impose a heavier sentence than would otherwise have been appropriate. For this further reason it will be necessary to set aside the sentence imposed on this count and re-sentence the appellant.
Three further complaints were advanced on the appeal, and it is convenient to provide my brief reasons for their rejection.
Current Sentencing Practice
The appellant referred to authorities where lower sentences were imposed for driving while under a disqualification. It was said that these other authorities demonstrated that the sentence imposed in the present case was manifestly excessive.
This submission should be rejected. These other authorities are of little assistance, as each turn on their own facts. For this reason, this Court has emphasised that comparing a particular sentence with past cases will generally be of little value and assistance in allowing a court to arrive at an appropriate sentence. In O’Donnell,[6] Hogarth, Zelling and Wells JJ observed:
This is the position in practically every case where this type of argument is put forward, that the facts of the cases cited are different, the circumstances in which the offence was committed are different, the offender is different, and the matters which have to be taken into consideration by the Judge are different. It is but rarely that lists of previous sentences, with short notes of the facts appended, are of use to a Court of Criminal Appeal.
[6] R v O’Donnell (1974) 7 SASR 114 at 115; cited with approval by Mullighan J in R v Hitchens (1995) 184 LSJS 337.
More recently, the Court of Appeal of Western Australia confirmed this approach in Marshall v Western Australia,[7] where Miller AJA observed:
It has been said on many occasions that there is little value in comparing sentences imposed in other cases without ensuring that one is comparing “like with like”. I said as much in Watt … at [12]. Rowland J (with whom Ipp J agreed) said much the same in Bellissimo (1996) 84 A Crim R 465, at 468-469:
It is generally impossible to make sensible comparisons when dealing with the antecedents of persons who have been before the courts.
…
In the end, one simply considers all of the facts and circumstances to ascertain whether it can be shown in this case that the learned sentencing judge’s discretion has miscarried to the extent that it can be said that the sentence is manifestly excessive.
As the Court pointed out to counsel for the appellant during the hearing of the appeal, this is not a case in which a comprehensive analysis of comparable sentences in like cases was put before the Court. Counsel for the appellant disavowed any assurance that he had incorporated all the known cases, and, in the absence of such an analysis, it is difficult to deal with a ground of appeal which contends that the sentence imposed upon the appellant “was manifestly excessive having regard to … sentencing patterns in comparable cases”.
[7] Marshall v Western Australia [2007] WASCA 96 at [100]-[101].
Inadequate Reasons
The appellant submitted that it was not apparent from the Magistrate’s sentencing remarks that he had regard to the submissions put by the appellant’s counsel, or the factors identified in section 10 of the Criminal Law (Sentencing) Act. The appellant further submitted that the Magistrate’s reasons were inadequate to that extent and in the circumstances it was open to this Court to find that the sentencing process miscarried.
The Magistrate provided remarks that made clear his reasons for sentence. Those remarks have been set out in full earlier in these reasons. Although brief, they were adequate. The appellant had no difficulty in the presentation of the appeal, and in identifying the suggested errors. This submission should be rejected.
Failure to Suspend Sentence
The appellant submitted that a suspended sentence is a significant penalty.[8] The Magistrate recognised that he was required to consider whether the sentence should be suspended, but declined to do so on the basis of the appellant’s “record”. It was contended that it was not clear from the sentencing remarks whether the Magistrate considered that the appellant’s “record” meant that there was no good reason to suspend the sentence pursuant to section 38 of the Criminal Law (Sentencing) Act or whether he thought that there was a good reason, but that this was negated by the appellant’s “record”. The appellant submitted that, although the weight to be given to the factors for and against suspension was a matter for the Magistrate, given the manner in which his reasons were expressed it was difficult to be confident that the Magistrate turned his mind to whether there was good reason for suspension, as opposed to whether there was good reason for not suspending.[9] Finally it was said that in the circumstances there was good reason to suspend, including disproportionate hardship, the time already spent in custody relative to the average length of sentences imposed for this offence, and the effect of imprisonment on the appellant’s employment and general rehabilitation prospects.
[8] Ware v Betts (1987) 134 LSJS 212; Elliott v Harris (No 2) (1976) 13 SASR 516 at 527.
[9] Hardwick v Police [1999] SASC 446.
The Crown submitted that there were a number of good reasons to support the conclusion that there was no good reason to suspend the sentence of imprisonment. These reasons included the appellant’s criminal antecedents, which include a number of serious driving offences dating back to 1999. It was contended that he was not an offender being sent to prison for the first time and one who was likely to benefit from the exercise of the court’s clemency. It was pointed out that the offending was contumacious, that the appellant was on parole at the time he committed the offence, and that the appellant’s driving related offences had been ongoing. The Crown contended that there was nothing to support the assertion that the Magistrate may have misunderstood the provisions of section 38 of the Criminal Law (Sentencing) Act or failed to turn his mind to the question of whether there existed good reason to suspend the sentence.
In my view, this complaint should be rejected. On the approach taken by the Magistrate to the circumstances of the offending, the decision not to suspend the sentence of imprisonment was well within his sentencing discretion. However, as the appellant is to be re-sentenced, there will be a need to reconsider the question of suspension.
Re-Sentencing
A Preliminary Submission

The Crown accepted that this Court has power to re-sentence the appellant, due to the earlier identified errors made by the Magistrate. However, it was submitted that the sentence imposed by the Magistrate was nonetheless the appropriate sentence. It was said that the offending could properly be described as having aggravating features, not referred to by the Magistrate. These were said to include the circumstances in which the appellant came to be driving, the reasons and purpose for which the appellant was driving, the fact that the act of driving was substantial, and the nature and extent of the appellant’s disregard of the law. The Crown submitted that the appellant drove for convenience, in the absence of circumstances of emergency or expediency. The explanation for driving to buy cigarettes for his girlfriend did not justify his breach of parole. In addition, the appellant admitted that he tried to escape from the police.
The appellant drove a considerable distance before being apprehended. He knew, or must be taken to have known, that he was disqualified and drove in blatant disregard of this knowledge. After recognising police presence, he continued to drive in an attempt to evade detection for the commission of an offence, and thereby displayed a serious disregard of his disqualification in disobedience or defiance of the authority which imposed the suspension. The appellant committed the offence while he was on parole. The Crown submitted that his actions in doing so could be described as circumstances of substantial aggravation.[10]
[10] Maxwell v Police (1998) 102 A Crim R 374 at 377; Godfrey v Police [2007] SASC 229 at [20].
It was said that there were no circumstances to excuse the appellant’s decision to drive. The offence was contumacious, characterised by an attitude of defiance by the appellant and a total disregard of disqualification. It was an aggravated offence.[11]
[11] Bates v Police (1997) 70 SASR 66; Police v Cadd & Ors (1997) 69 SASR 150 at 179; Johns v Police (unreported, Supreme Court of South Australia, Lander J, 24 June 1998).
In my view, a notional starting sentence of five months imprisonment for the offence of driving while disqualified is too high a starting point, and inappropriate. I reject the preliminary submission of the Crown that, notwithstanding the Magistrate’s error of approach, the sentence imposed was in any event appropriate.
The Appropriate Sentence
The appellant has a prior conviction for driving while disqualified, committed on 4 July 2002. The appellant’s offender history includes many driving related offences, as earlier observed, dating back to 1999. They demonstrate an ongoing and systematic disregard for laws regulating the driving of motor vehicles and road traffic matters.
Personal deterrence is an important consideration in this case, given the appellant’s antecedent history. General deterrence is also an important aspect of the sentence to be imposed.
The appellant has strong family support. He also has an excellent work record in Port Lincoln. Notwithstanding his imprisonment, referees wrote of their willingness to offer the appellant employment. These references speak highly of his employment reputation. This good opinion, coupled with family support and supervised parole, should enhance the appellant’s real prospects for long-term rehabilitation.
The submission that the sentence of four months imprisonment was appropriate should be rejected. Having regard to the appellant’s criminal and personal antecedents, and the contumacious offending on this occasion, it is appropriate to start with a notional head sentence of 12 weeks’ imprisonment. A reduction of three weeks should be made on account of the appellant’s plea of guilty and contrition. A further reduction should be made on account of the time spent in custody prior to sentencing – a period of eight weeks. As a result, the appellant is to be imprisoned with respect to the offence of driving while disqualified for a period of one week.
Having regard to all relevant factors, including the contumacious circumstances of the offending, the fact that the appellant was on parole, and the appellant’s personal and criminal antecedents, I do not propose to exercise my discretion to suspend this sentence.
Section 75 of the Correctional Services Act provides:
(1)     Where—
(a)     a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or
(b)     the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.
(1a)Subsection (1) applies notwithstanding that, at the time of conviction of the person or of the revocation of the suspended sentence, the parole may have expired or been discharged.
(2)Where a person referred to in subsection (1) is, at the time of conviction or revocation of the suspended sentence, still on parole, the parole is, by virtue of this subsection, cancelled.
Section 31(2) of the Criminal Law (Sentencing) Act is also relevant:
Where a sentence of imprisonment is imposed for an offence committed by the defendant—
(a) during a period of release on parole or conditional release; or
(b)while serving a period of imprisonment pursuant to an order of the Parole Board for breach of parole conditions,
the sentence will (except where one of the sentences to which the defendant is subject is life imprisonment) be cumulative upon the sentence, or sentences, in respect of which the defendant was on parole.
As observed in Czubak,[12] the effect of these provisions is that a court is obliged, when imposing a custodial sentence, to direct that the sentence be cumulative on the balance of the unexpired sentence the subject of the breach of parole.
[12] R v Czubak (2005) 92 SASR 400.
As a consequence, in the present case it is necessary to order that the unexpired portion of the sentence the subject of the breach of parole – namely, a period of one year, 10 months and 29 days – be served as from the date of sentencing, and that the sentence of one week imposed with respect to the offence of driving while disqualified be cumulative on that term of imprisonment. The end result is that the appellant faces a total period of imprisonment of one year, 11 months and five days.
Section 32 of the Sentencing Act provides for the fixing of a non-parole period in the following terms:
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a) if the person is not subject to an existing non-parole period—fix a non-parole period
…
(2)Where the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non-parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
Accordingly, it is now necessary to fix a non-parole period relevant to the total period of imprisonment faced by the appellant. The appellant submitted that this case called for a short non-parole period. It was pointed out that the breach of parole related to a term of imprisonment imposed for a number of offences, including serious offences of dishonesty. It was accepted that a number of those offences also involved driving related offences. It was said that it would be harsh and unjust for the appellant to face a further lengthy period in custody because of a breach of parole that was unrelated to the majority, and the more serious aspects, of the prior offending. Emphasis was placed on the earlier references to family support and good employment prospects. The Crown accepted that there was substance to this submission, and that it would not be inappropriate to fix a shorter than usual non-parole period. It should be pointed out that the appellant, while in the community on parole, will be subject to terms of parole as considered appropriate by the parole board, and subject to the immediate return to custody in the event of a material breach.
I consider that in all the circumstances it is appropriate to fix a non-parole period of six months. I accept that this is a relatively short non-parole period, however I consider the unusual circumstances earlier outlined allow this approach.
Conclusion
This appeal is allowed. The sentence imposed by the Magistrate with respect to the offence of driving while disqualified (count 4) is set aside. I re-sentence the appellant as follows:
-The appellant is sentenced in respect of the offence of driving while disqualified (count 4) to a term of imprisonment of seven days;
-The term of imprisonment of seven days is to be cumulative on the unexpired portion of his existing non-parole period of one year, 10 months and 29 days;
-The total term of imprisonment of one year, 11 months and five days is to be taken to have commenced on 12 September 2007, the date of sentencing by the Magistrate;
-A non-parole period of six months is fixed with respect to the total term of imprisonment of one year, 11 months and five days;
-The non-parole period is to be taken to have commenced on 12 September 2007, the date of sentencing by the Magistrate. The appellant will be eligible for parole on 12 March 2008.