Jamie Griggs v Glen William Philp
[2005] ACTSC 137
•2 December 2005
JAMIE GRIGGS v GLEN WILLIAM PHILP
[2005] ACTSC 137 (2 December 2005)
EX TEMPORE JUDGMENT
CRIMINAL LAW – appeal – appeal from sentence – totality principle – offences forming one course of conduct – whether failure to expressly consider questions of totality amount to an appellable error.
ON APPEAL FROM THE MAGISTRATES COURT
No SCA 79 of 2005
Judge: Connolly J
Supreme Court of the ACT
Date: 2 December 2005
IN THE SUPREME COURT OF THE )
) No SCA 79 of 2005
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT
BETWEEN:JAMIE GRIGGS
Appellant
AND:GLENN WILLIAM REGINALD PHILP
Respondent
ORDER
Judge: Connolly J
Date: 2 December 2005
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld to the extent that the two sentences imposed on 21 October 2005 are to be fully concurrent. The sentences are to commence from 21 October 2005 and expire on 20 January 2006.
This is an appeal from a decision of Magistrate Lalor of 24 October 2005. The learned Magistrate sentenced the appellant in respect of three pleas of guilty that he was on 21 October 2005 an unlicensed driver, that he did on that day drive in a manner dangerous, and that on 21 September 2005 he failed to appear for bail - he failed to answer his bail.
The learned Magistrate dealt with the drive in a manner dangerous by way of a sentence of imprisonment of three months in custody. He dealt with the failure to answer bail similarly by imposing three months in custody. He made them fully cumulative, one upon the other, for an effective six months in custody. He then imposed a fine of $1,500 payable immediately in relation to the unlicensed driver charge.
The appeal is in respect of the convictions for drive in a manner dangerous and fail to answer bail. There are really three points to the appeal. The first is an argument that the entire sentencing process miscarried due to the failure by the learned Magistrate to obtain a pre-sentence report. I am not satisfied that this amounts to appelable error. A pre-sentence report is not a mandatory requirement.
At the hearing the appellant was represented by Ms Andric, a legal practitioner. Ms Andric, at page 7 of the transcript, adverted to the issue of a pre-sentence report and said; “Would your Honour be assisted with a pre-sentence report?” or “Would you like me to?” and the learned Magistrate then said; “No, proceed”. So the Magistrate indicated he did not feel he would be assisted with a pre-sentence report, and that was the end of the matter.
Counsel did not seek an adjournment. She did not urge upon the Magistrate that further benefit may be obtained by way of a pre-sentence report. It is true that Mr Drumgold, for the Crown, indicated his submissions would be limited because there was no pre-sentence report, but at no point did Ms Andric urge an adjournment to obtain a pre-sentence report and I do not see that as falling into a process whereby the original sentencing miscarried.
The substantial limb of the appeal goes to excessive sentencing in respect of each and every count. The test for that is well known, and I need not set it out in detail. House v The King (1936) 55 CLR 499 is the basic authority. It is not the role of the court to review a sentence to necessarily re-sentence. One needs to see whether there has been excessive sentencing.
In respect of the drive in a manner dangerous, it seems to me that a sentence of three months imprisonment is in no way manifestly excessive. The facts of the drive in a manner dangerous put them, it seems to me, towards an upper end of that type of conduct. The facts upon which the appellant pleaded guilty indicated that at about 16.45, that is to say 4.45 in the afternoon on a Friday, an ordinary school day when school children are out, police observed a vehicle. They sought to pull the vehicle over for whatever reason. The vehicle came to a stop in a suburban street, Gymea Street in suburban Narrabundah.
As police approached the driver the vehicle accelerated and drove along that street. The statement of facts indicates that as the vehicle turned into Tallara Parkway in Narrabundah, it was estimated to be travelling at a speed of 100 km/h. Tallara Parkway is described as a parkway, but I take judicial notice of the fact that Tallara Parkway is not a parkway such as the Tuggeranong Parkway, but is a residential street in Narrabundah.
It then turned into Goyder Street, another residential street, at a speed of 110 km/h, then right at Sturt Avenue access road and proceeded in a northerly direction at an estimated speed of 100 km/h. It then turned into Boolimba Crescent. Boolimba Crescent is also a residential street in Narrabundah, at an estimated speed of 110 km/h. It locked its rear wheels and skidded for 10 metres at the intersection with Kootara Crescent. At that stage clearly the vehicle was out of control. If a child had been about on a bike there could be much more serious charges.
The vehicle then was estimated to be travelling at 100 km/h along Bundeela Street, another residential street, again turning into Tallara Parkway. It then accelerated away from police at a suburban intersection. On the statement of facts, the control of the vehicle was again lost. It mounted the kerb onto the grass verge. There was a fatality recently when a vehicle mounted the kerb when a person happened to be gardening at the time. The vehicle again accelerated along Warramoo Crescent. The speed again at Kootara Crescent was estimated to be 100 km/h.
The vehicle, I am told on the statement of facts, attempted when it came to something of a cul-de-sac, to crash through a Koppers log barrier into a grassed area to avoid police and then proceeded through that area which is directly behind a pre-school at a time when, on the statement of facts, people would be expected to be using that grassed area for recreational purposes. The driver and passenger then fled on foot.
Drive in a manner dangerous is an offence which covers a wide range of conduct and there would be many cases where a person may be charged and plead guilty to drive in a manner dangerous and a custodial sentence would be entirely appropriate. This, it seems to me, is a circumstance where a custodial sentence was entirely appropriate. It was extremely dangerous conduct, aggravated by the fact that it was in order to escape a police vehicle.
Without falling into the error of sentencing a person for something which has happened subsequently, or that they were not involved in, it is notorious that over the last 20 years many people have lost their lives when vehicles involved in police chases, whether a police vehicle or the civilian vehicle, have lost control and either the driver or a bystander has lost their life. This was extremely dangerous driving. Speeds of over 110 km/h or speeds estimated by police on the statement of facts at 110 km/h in a suburban area including the vehicle leaving the road and proceeding across grassed recreational areas, not in the dead of night or in the early hours of morning, but at 4.45 on a Friday afternoon when people, especially children, could be expected to be in the area.
It seems to me the Magistrate cannot be said to have erred in imposing a sentence of three months’ imprisonment. Indeed it would seem to me that this Court ought to say to magistrates that that is an entirely appropriate sentence for this type of conduct. The courts must not encourage this type of conduct and condign punishment is appropriate to send a clear message to members of the community that police pursuits will be treated seriously by the courts and offenders will face a custodial sentence.
So it seems to me that the Magistrate did not err in imposing three months’ imprisonment for the drive in a manner dangerous. His Honour made some short remarks which, it seems to me, are consistent with what I have just said in a more expansive manner for reaching that sentence. When we move to the next sentence, the three months for fail to answer bail, the Magistrate’s reasoning is much shorter and it is more difficult to fully understand the basis for his Honour’s decision.
He did make some remarks about prior breaches, but when one looks at the record, that does not seem to be particularly excessive. It is true that there have been some breaches of other court conditions but, generally speaking, the appellant, who has a serious criminal record, has fronted the courts as required and has been dealt with. In 1999 there were two charges of fail to answer bail which were taken into account in relation to a serious matter. They certainly did not attract any separate custodial penalty and there are other cases where recognizance have been breached where there have simply been convictions recorded with no penalty or there have been recognizance going back to the Children’s Court which have been dealt with by a modest fine.
It was open to the Magistrate to form the view that indeed in the general criminal record and the fact that there is a history of difficulties, albeit not the more serious end, to impose a custodial sentence. It seems to me that three months was towards the upper end of that, but I am not satisfied that it was of itself so severe as to fall into appelable error. However, on the third ground of appeal, it seems to me that the Magistrate did fall into error by, on his reasons, failing to consider at all the question of whether those sentences should have been concurrent or accumulative.
It is apparent from the police statement of facts in relation to the drive in a manner dangerous, and it was the submission before the Magistrate, that the reasons the appellant took off when the police pulled the vehicle over, or sought to pull the vehicle over, was because he realised that he was in breach of bail and there might be consequences when that became apparent, as it inevitably would have if he was asked to produce a licence.
The offences are therefore, it seems to me, linked and form one course of conduct. It is clearly incumbent upon any sentencing officer, a magistrate or judge, to look at the principle of totality when sentencing. And for the judge sentencing the offender, in the words of the High Court in Pearce v The Queen (1998) 194 CLR 610, to fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence as well as questions of totality.
The Magistrate’s oral reasons are silent in relation to that. He seems, with respect, not to have considered expressly at all that question, and by simply ordering that they be cumulative has resulted in a sentence of six months to serve which, it seems to me, must on a principle of totality be seen to be excessive. Six months would certainly be excessive in relation to the bail matter. Six months would be at an upper end for the drive matter that his Honour said three months was appropriate for, and it would be wrong of him to have I think aggravated the driving matter by making the breach of bail cumulative upon that.
It seems to me that his Honour has erred there and it is appropriate for me to interfere with the sentencing process to that extent and to order that the two periods of imprisonment be served from the same date. Ms Whitbread, for the prosecution, conceded that it would be appropriate for these sentences to be made concurrent. The date was 21 October 2005. The effect of that is that the convictions, of course, will stand. The sentences will stand and although I understand Mr Doig’s submissions that it was not helpful for the appellant to have a custodial sentence for failure to answer his bail on his record, because that will be looked at in future sentencing exercises, the appellant has been in and out of court on a number of occasions since his youth and now has to understand that bail is serious and failure to attend to answer the bail in future will attract custodial sentences and that is inevitable for a person with a substantive record.
But he will serve only the three months and that means that the period to be served for these matters will expire on 20 January 2006.
It seems to me that that is appropriate and that it would be entirely inappropriate to reduce the sentence for the driving matter given, in my view, the extremely serious nature of the drive in a manner dangerous. There will be some consequences in relation to the unpaid fine but that is a matter not before me because that is not subject to the appeal.
So the disposition of the appeal then is the appeal is upheld to the extent that the two sentences imposed on 21 October are to be fully concurrent. The court will now adjourn.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.
Associate:
Date: 2 December 2005
Counsel for the appellant: Mr A Doig
Solicitor for the appellant: Darryl Perkins Solicitor
Counsel for the respondent: Ms J Whitbread
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 2 December 2005
Date of judgment: 2 December 2005
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