HOWLETT v Police - [2005] SASC 271

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Criminal)
HOWLETT v POLICE
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Debelle)
20 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - appellant pleaded guilty in Magistrates Court to various offences, including driving whilst disqualified from holding or obtaining a driver's licence - sentenced to 4 months imprisonment with licence disqualification of 3 years - no sentencing remarks on file - appealed to single judge - appeal allowed by single judge for purpose of reducing licence disqualification period to 1 year - appeal to Full Court - whether a global penalty was imposed for all offences - appeal allowed - sentence of 4 months imprisonment set aside and in lieu thereof appellant sentenced to period of imprisonment already served - imposition of a fine for remaining offences - licence disqualification imposed by single judge affirmed.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Hermel v Police (2000) 76 SASR 336; R v Matthew [2001] SASC 390, applied.
R v Keyte [2000] SASC 382; Papps v Police (2000) 77 SASR 210, discussed.

HOWLETT v POLICE
[2005] SASC 271
Full Court: Doyle CJ, Duggan and Debelle JJ

DOYLE CJ: I agree with the orders proposed by Duggan J and with his reasons. There is nothing that I wish to add.
DUGGAN J: The appellant pleaded guilty in the Magistrates Court to the offences of driving while disqualified from holding or obtaining a driver’s licence (“driving while disqualified”), driving an unregistered vehicle, driving an uninsured vehicle, failing to truthfully answer questions and providing false information in an application for release on bail.
According to the facts put before the magistrate the appellant was stopped by a police officer when driving a vehicle on Grand Junction Road, Pennington on 24 January 2004. The vehicle was unregistered and uninsured. When questioned the appellant gave a false name. He was arrested and gave the same false name when completing a bail application form. Police enquiries revealed that he had been disqualified from driving for 28 days on 2 January 2004.
The magistrate sentenced the appellant to imprisonment for four months. The appellant was also disqualified from holding or obtaining a driver’s licence for three years.
There are no sentencing remarks on the Magistrates Court file. However it appears from the court documents that the magistrate may have imposed a global penalty of imprisonment in relation to all the offences. Only the offence of driving while disqualified could be punished by way of a term of imprisonment.
The appellant appealed against sentence to a single judge. The question whether a global penalty was imposed was not raised on the hearing of that appeal. However, the appeal was allowed for the limited purpose of reducing the period of disqualification to one year.
The appellant was given leave to appeal to the Full Court. The grounds of appeal complain that the sentence of imprisonment for four months was manifestly excessive. Complaint is also made that the licence disqualification period of 12 months is manifestly excessive. A further ground of appeal asserts that the learned judge appealed from erred in confirming a global sentence of imprisonment which encompassed some offences not punishable by imprisonment.
Offences for which imprisonment is not a penalty cannot be included in the offences for which a global penalty of imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Act”) is imposed: Hermel v Police (2000) 76 SASR 336; R v Matthew [2001] SASC 390 at [4].
As I have said, the possibility of a global penalty having been imposed was not brought to the attention of the learned judge. However, the limited information available on the Magistrates Court file suggests that the magistrate fell into error by passing such a sentence. Furthermore, no sentencing remarks are available so that the exercise of the sentencing discretion by the magistrate cannot be properly reviewed: cf.R v Keyte [2000] SASC 382; Papps v Police (2000) 77 SASR 210. The absence of sentencing remarks is quite unsatisfactory, particularly in a case in which a sentence of imprisonment was imposed.
In my view, the clear possibility of error in applying s 18A of the Act and the absence of any sentencing remarks to enable a satisfactory review of the sentencing discretion render it necessary for the sentencing discretion to be exercised afresh. I would allow the appeal for this purpose.
The appellant is 24 years of age. His recent offending was summarised by the judge appealed from in the following passage:
The appellant has never held a South Australian driver’s licence. He has a history of offences in relation to motor vehicles. On 2^nd January 2002 he was convicted for driving an unregistered vehicle, driving while uninsured and driving without a licence. He was fined the sum of $300.00 and disqualified from driving for 28 days. On 19^th April 2002 the defendant was convicted for driving without a licence. He was discharged without penalty. On 21^st March 2003 the defendant was convicted for driving an unregistered vehicle, driving without a licence and indecent language. He was fined the sum of $400.00 and disqualified from driving for three months commencing from 21^st March 2003. On 17^th October 2003 the appellant was convicted for driving a vehicle without a licence. He was fined the sum of $100.00 and disqualified from driving for a period of four months commencing from 17^th October 2003. It will be seen from the above that the appellant has been convicted of driving without a licence on four separate occasions.
The appellant’s history of convictions indicates that he has little regard for the law. It is also apparent that previous court appearances have not deterred him. The offences presently before the court were committed approximately three months after he had been disqualified from driving. There is little which can be said by way of mitigation of the offence of driving while disqualified. A plea of guilty to an offence of this nature in which a conviction was inevitable does not merit any significant reduction in sentence.
The maximum penalty for a first offence of driving while disqualified is imprisonment for six months. In my view a sentence of imprisonment for three months would be appropriate in the circumstances of this case.
However, the appellant has already served almost three months of his original sentence. He is presently on bail and it would be inappropriate in the circumstances for him to be returned to gaol to serve a very short period representing the balance of the sentence. I would allow the appeal and set aside the sentence of four months imposed by the magistrate and confirmed by the single judge. On the offence of driving while disqualified I would sentence the appellant to the period of imprisonment already served by him.
In addition, I would impose a single penalty in relation to the offences of driving an uninsured vehicle, driving an unregistered vehicle, failing to truthfully answer questions and providing false information in an application for release on bail. In my view, the appellant should be fined $750.00 in respect of these matters.
I would not interfere with the licence disqualification of 12 months imposed by the single judge. It was appropriate in view of the number of offences which the appellant had committed, the seriousness of those offences and the fact that the appellant has a record of similar offences.
The orders of the magistrate as to costs should be confirmed.
DEBELLE J: I agree.