Henke v Police - [2008] SASC 315

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HENKE v POLICE
[2008] SASC 315
Judgment of The Honourable Chief Justice Doyle
20 November 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH - GENERALLY
Appellant convicted of criminal trespass and sentenced to imprisonment - term of imprisonment suspended upon appellant entering into bond to be of good behaviour - as a result of charges brought against appellant, appellant charged with breaching bond - whether Magistrate erred in ordering that suspended sentence take effect - whether Magistrate erred in failing to reduce period of imprisonment taking effect on revocation of bond - whether Magistrate erred in failing to wholly suspend sentence.
Held: breach of bond proved - Magistrate had to revoke suspension unless satisfied that the breach was trivial or that there were proper grounds to excuse the failure to comply with bond - behavioural offences not minor or technical breaches of the law and cannot be regarded as trivial - no error in revocation of bond - under s 58(4) Criminal Law (Sentencing) Act 1988 (SA) Court can only reduce sentence taking effect on revocation of bond where there are "special circumstaces" to do so - no special circumstances shown - Magistrate did not err in failing to suspend term of imprisonment the subject of the bond.

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appellant drove car while intoxciated - appellant intoxicated to the point of not being able to stand up - appellant charged with driving under the influence of intoxicating liquor and driving without due care - appellant pleaded guilty to both charges - Magistrate imposed a term of imprisonment of two months in respect of the driving under the influence offence - whether period of imprisonment imposed by Magistrate manifestly excessive.
Held: driving under the influence offence serious given risk of harm to others - Magistrate correct to give weight to deterrence - no error by Magistrate.
Appellant charged with failing to cease loitering and resisting a member of the police - appellant pleaded guilty to both charges - Magistrate sentenced appellant to a single term of imprisonment of one month in respect of both offences - whether sentence manifestly excessive - whether sentence should have been suspended.
Held: police entitled to expect Courts to support them in dealing with disorderly behaviour - sentence not excessive - Magistrate did not err in refusing to suspend sentence.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - DISCRETION OF COURT
Magistrate ordered that sentences of imprisonment take effect cumulatively - total period of imprisonment 13 months - Magistrate imposed non-parole period of 10 months - whether non-parole period fixed by Magistrate manifestly excessive.
Held: appellant has not been imprisoned before - where a defendant has not been imprisoned, usually the case that defendant is given an opportunity to learn a lesson by serving a substantial period on parole - non-parole period excessive in the circumstances - appeal allowed, non-parole period fixed at seven months.
Road Traffic Act 1961 (SA) s 45, s 47 and s 47A; Summary Offences Act 1953 (SA) s 6 and s 18; Criminal Law Consolidation Act 1935 (SA) s 170A; Criminal Law (Sentencing) Act 1988 (SA) s 35, s 58(3) and s 58(4), referred to.

HENKE v POLICE
[2008] SASC 315
Magistrates Appeal: Criminal

DOYLE CJ: Mr Henke appeared before a Magistrate on 25 August 2008, having pleaded guilty to a number of offences. Mr Henke appeals against a sentence of imprisonment imposed by the Magistrate for the offences, and against the Magistrate’s decision to order that a suspended sentence be carried into effect.
Background
The first incident giving rise to the charges against Mr Henke occurred about 3.00 am on 15 March 2008 and involved Mr Henke driving while under the influence of alcohol.
Mr Henke had been drinking continuously since about 4.00 pm in the afternoon prior to the commission of the offences. He has no recollection of getting into the car in which he committed the offences. Police detected the driving offences after a member of the public alerted them to observations made of Mr Henke. The call to the police was made after the member of the public saw Mr Henke get into a car and begin to drive. The member of the public who contacted the Police observed that he was so obviously affected by alcohol that he had trouble walking. The member of the public followed Mr Henke and observed that he was unable to maintain control of the car. Mr Henke was seen to drive his car on to the footpath on two occasions.
When the police stopped Mr Henke, he was unable to stand up unsupported. The officers noticed that Mr Henke was swaying, that his speech was slurred, and that he smelt strongly of liquor. A breath test indicated that his blood alcohol level was 0.239 grams of alcohol in 100 millilitres of blood.
As a result of this Mr Henke was charged with three breaches of the Road Traffic Act 1961 (SA) (“the RTA”), one of which was ultimately withdrawn. The two remaining RTA offences were driving under the influence of intoxicating liquor contrary to s 47(1)(a) of the RTA, and driving without due care contrary to s 45 of the RTA (an aggravated offence due to the presence in Mr Henke’s blood of more than 0.08 grams of alcohol in 100 millilitres of blood).
In December 2003 Mr Henke was convicted of driving under the influence of intoxicating liquor contrary to s 47(1)(a) of the RTA, at which time the minimum sentence was imposed. The offence was committed on 28 June 2003. As a result of this previous offence within five years, by s 47(4) and by s 47A(3) of the RTA the offence against s 47(1)(a) of the RTA to which Mr Henke pleaded guilty is a “subsequent offence”. A “subsequent offence” against s 47 of the Road Traffic Act attracts a maximum sentence of a fine of not more than $2,500 or imprisonment for six months.
The maximum punishment for the second offence is imprisonment for 12 months (because it was an aggravated offence).
Mr Henke pleaded guilty to and was convicted of both offences. For the offence against s 47 of the RTA, in addition to disqualifying Mr Henke from holding a driver’s licence for four years, the Magistrate imposed a sentence of two months’ imprisonment. The Magistrate said that in light of Mr Henke’s previous driving offences, he was “a very significant hazard” to the safety of other road users. For the safety of the community, the sentence to be imposed had to have a deterrent effect on Mr Henke. The Magistrate indicated that he had reduced the sentence of imprisonment by one month to reflect Mr Henke’s plea of guilty. In relation to the offence against s 45 of the RTA, the Magistrate disqualified Mr Henke from holding or obtaining a driver’s licence for a period of twelve months, such disqualification to take effect concurrently with the licence disqualification imposed in relation to the other charge.
The second incident that resulted in charges against Mr Henke occurred on Saturday 5 April 2008. Mr Henke had been at a nightclub in Mount Gambier with some friends. When the nightclub closed in the early hours of the Saturday morning, a fight erupted in front of the night club. Mr Henke and his friends crossed to the side of the road opposite the nightclub. Mr Henke was intoxicated at the time. The group was told to move further away from the club, but at first did not do so. The police saw Mr Henke harassing some other people who were also in the vicinity of the nightclub. The police approached Mr Henke and again told him to leave but he did not do so. Mr Henke yelled abuse at the police and did not leave as requested. The police arrested Mr Henke, but he put his arms behind his back to avoid being handcuffed. There was an ensuing struggle during which both Mr Henke and members of the police force fell to the ground. After being handcuffed and put into the police van, Mr Henke kicked the door to the van so that officers were unable to close it. The police had to subdue Mr Henke with capsicum spray to enable the door of the van to be shut.
Mr Henke was charged with failing to cease loitering in a public place after having been requested to do so by a member of the police, contrary to s 18(2) of the Summary Offences Act 1953 (SA) (“the SOA”). This offence attracts a maximum penalty of three months’ imprisonment or a fine of $1,250. Mr Henke was also charged with resisting a member of the police in the execution of the member’s duty, an offence against s 6(2) of the SOA. The maximum penalty for this offence is imprisonment for six months or a fine of $2,500. Mr Henke was intoxicated at the time of this incident, and is able to remember little about the incident.
Mr Henke pleaded guilty to both charges and was sentenced to a single term of imprisonment, in respect of both charges, of one month. But for the pleas of guilty the Magistrate would have imposed a sentence of two months’ imprisonment.
On 21 January 2008 Mr Henke had been convicted of an offence against s 170A(1) of the Criminal Law Consolidation Act 1935 (SA), namely, trespassing in a place of residence while another person was lawfully present in the residence, knowing, or being reckless as to whether another person was lawfully present in the residence. This was an aggravated offence. As a result of that conviction, Mr Henke was sentenced to imprisonment for 10 months, suspended upon him entering into a bond requiring him to be of good behaviour for a period of three years. Mr Henke entered into the bond on 21 January 2008. As a result of the offences of 5 April 2008, Mr Henke was charged with breaching the bond.
The Magistrate considered that the term of imprisonment that would take effect upon the revocation of the suspension of the sentence of 10 months was not disproportionate to the offending conduct of Mr Henke. Further, the Magistrate was not satisfied that there were “special reasons” sufficient to reduce the period of imprisonment to be served after the revocation of the bond. Accordingly, the Magistrate revoked the bond and ordered that the sentence of ten months’ imprisonment be brought into effect.
In relation to the periods of imprisonment outlined above, the Magistrate ordered that they take effect cumulatively. The effect of that order was that the total period of imprisonment to be served by Mr Henke was 13 months. The Magistrate fixed a non-parole period of ten months.
Mr Henke is 28 years old. Although he was unemployed when he came before the Magistrates Court, he had been employed continuously for 9½ years as a farm hand. Mr Henke has two children aged six years and three years from a de facto relationship which ended about two years ago. He had overnight access to the children each weekend. Since the commission of the offences, Mr Henke recognised that consuming alcohol often resulted in him getting into trouble. He had received counselling at the South East Drug and Alcohol Counselling Service, and had ceased drinking in the months prior to being sentenced. In addition, Mr Henke has completed an Anger Management Course.
Mr Henke has a number of convictions in addition to those referred to above. Most of them are fairly minor. However, a conviction on 15 January 1999 for driving with the prescribed concentration of alcohol in his blood is significant.
Preliminary comments
Although Mr Henke is only 28 years old, he has a number of prior convictions. The recent offences indicate that he has a tendency to consume alcohol to excess, and to disregard the law when he has done so.
The drink driving offences are serious. They are serious in themselves. The particular offences are serious because of the risk of harm to others. It is apparent that Mr Henke was incapable of driving his motor car safely when he committed these offences.
The Magistrate was right to take a serious view of the drink driving offences, particularly in light of Mr Henke’s record. The Magistrate was right to emphasise the need for a sentence that would deter Mr Henke from this kind of offending.
The SOA offences are not so serious. But they illustrate a pattern of behaviour on Mr Henke’s part. When he is affected by alcohol, he behaves irresponsibly, and with little or no regard for the law.
The SOA offences also called for a significant penalty, bearing in mind Mr Henke’s failure to learn from previous leniency, and from being charged with the drink driving offences.
Finally, it is relevant that Mr Henke entered into the bond in question on 21 January 2008, less than two months before he committed the drink driving offences. This illustrates his failure to learn a lesson from being granted leniency.
Submissions on appeal
Mr Mead submits in the outline of submissions that the sentence of two months’ imprisonment for the drink driving offence is excessive. He submits that Mr Henke’s record of drink driving offences is not “remarkable”. The submission was not taken up in oral submissions, but I deal with it nevertheless.
I cannot comment on what is common or usual in the Magistrates Court. But I agree with the Magistrate that this was a serious offence that called for a severe penalty.
One must view with some caution Mr Henke’s claim that since the latest offending he has tackled his problem of excessive alcohol consumption. Only time will tell if he has really changed his ways. But his conduct called for significant punishment, even accepting that he now wishes and intends to avoid consuming alcohol to excess.
I reject the submission that a fine and a licence suspension would have sufficed. In the circumstances, the offence called for imprisonment. I agree with the Magistrate’s sentence. The reduction for the plea of guilty was generous.
As I have already said, the SOA offences are not as serious. But the police are entitled to expect the Courts to support them in dealing with people who behave in an obstructive and disorderly manner.
There is no suggestion in the Magistrate’s reasons that he was making an example of Mr Henke. Nor can it be said that the public interest in Mr Henke’s rehabilitation so outweighs the need for punishment as to make the sentence for the SOA offences excessive. It was open to the Magistrate to decide that Mr Henke’s conduct called for imprisonment, and that his prospects of rehabilitation would be strengthened by demonstrating to him that he could not escape punishment for the offences in question. The reduction for the plea of guilty was generous. The sentence is not excessive.
Mr Mead submitted that this sentence at least should have been suspended. In response, Mr Nicholas, for the respondent, replied that this was not possible, having regard to the provisions of s 38(2) of the Criminal Law (Sentencing) Act 1988 (SA), if the suspended sentence is to be carried into effect. I do not need to decide this point. The Magistrate did not err in deciding that there was no basis for a decision to suspend the sentence.
I turn to the application to revoke the suspension of the sentence of 10 months’ imprisonment. A breach of the bond was proved.
That being so, by s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) the Magistrate had to revoke the suspension of the sentence of 10 months’ imprisonment, unless he was satisfied that the breach was trivial or that there were proper grounds to excuse the failure to comply with the bond.
The SOA offences cannot be regarded as trivial. They are not minor or technical breaches of the law. If anything, they are relatively serious offences of their kind.
But were there proper grounds to refrain from revoking the suspension order? The Magistrate considered the matter, and was not persuaded that there were proper grounds.
I agree with the Magistrate.
I accept that the suspended sentence is substantially greater than the appropriate sentence for the SOA offences. But the proportion between the punishment for the breaching offences, and the suspended sentence, is only one of the matters to be considered. That Mr Henke breached his bond so quickly, and did so in circumstances indicating a failure on his part to address his own unacceptable pattern of behaviour, are also relevant matters. The SOA offences demonstrate an attitude to the law that made it appropriate to revoke the suspension. I reject the complaint that the Magistrate should not have done so.
There were no special circumstances for the purposes of s 58(4) of the Criminal Law (Sentencing) Act sufficient to call for the term of the suspended sentence to be reduced. For these purposes the focus is on events since the suspended sentence was ordered. Mr Henke’s claim to have undertaken counselling in relation to the consumption of alcohol is not, of itself, enough. One would expect, if he was to observe the terms of his bond, that in any event he would have undergone such counselling. In my opinion there was nothing in the circumstances since the imposition of the suspended sentence to make the original sentence of 10 months’ imprisonment inappropriate or oppressive.
The Magistrate did not err in ordering that the sentence of 10 months’ imprisonment be carried into effect.
Mr Mead referred to the fact that the Magistrate, when considering whether to reduce the 10 month sentence, appeared to suggest that it might be “a better outcome” for Mr Henke if he did not. I think that the Magistrate had in mind that if the combined sentences amounted to less than 12 months, he could not fix a non-parole period. Reasoning in that way might have been wrong, but the Magistrate’s reasons indicate that, in any event, there were no sufficient special circumstances for the purposes of s 58(4) to call for a reduction in the sentence.
I agree with the Magistrate’s decision to order that the three sentences be served cumulatively. Each sentence related to separate offending conduct that called for separate punishment.
I turn to the non-parole period. It is a relatively high proportion of the head sentence, a little more than 75 per cent on my calculations. Mr Henke has not been in prison before, a factor which usually supports some leniency when fixing a non-parole period.
Although Mr Henke needs to learn that his misconduct will attract severe punishment, usually one might expect a person serving a sentence of imprisonment for the first time to be given an opportunity to demonstrate his ability to learn a lesson by serving a substantial period on parole.
The Magistrate did not indicate any reason for a relatively high non-parole period, other than to make the obvious point that Mr Henke needs to learn to deal with his abuse of alcohol, and needs to learn to manage his anger better than he does.
In the circumstances, I consider that the non-parole period is excessive. Mr Henke was entitled to the opportunity to serve a more significant part of the sentence while on parole. I would allow the appeal solely for the purpose of fixing a lower non-parole period, namely seven months.
Other matters
At the commencement of the hearing Mr Mead applied to amend the Notice of Appeal.
I allowed one amendment.
I deferred ruling on the other two. I decline to allow either of the other two proposed amendments. In the circumstances one of them does not arise (the possible suspension of the sentence for the SOA offences) and the other is too uncertain in its scope. As best I can tell, I have dealt with all of the submissions that Mr Mead advanced.

The outline filed in advance of the hearing of the appeal foreshadowed an application to amend the Notice of Appeal to challenge the propriety of the Magistrate recording a conviction on the charge of driving without due care (as an aggravated offence) having regard to the fact that the Magistrate had recorded a conviction on the charge of driving while under the influence of intoxicating liquor. The application to amend was not pursued. The point raised was of no practical importance, because the only order made on this charge was for a period of disqualification from holding a driver’s licence that was concurrent with a period of disqualification ordered in respect of the offence of driving while under the influence of intoxicating liquor. I refrain from expressing any view on the point raised by the proposed ground.
Orders
I make the following orders.
1That the appeal be allowed for the purpose only of fixing a new non-parole period.
2That the non-parole period fixed by the Magistrates Court be set aside, and that a non-parole period of seven months be substituted.
3That the non-parole period be taken to have commenced on 25 August 2008.