JAMIESON v Police - [2004] SASC 335

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JAMIESON v POLICE
Judgment of The Honourable Justice White
29 October 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
Appellant pleaded guilty to illegal use, failing to obey a reasonable direction of a police officer, and driving in a manner dangerous - For illegal use, Magistrate sentenced appellant to 10 months imprisonment, suspended after one month - Appellant had demonstrated rehabilitation between commission of offences and sentencing - Appellant in employment which would be lost if custodial sentence required to be served immediately - Term of imprisonment was appropriate given seriousness of offence - Magistrate erred in failing to suspend entire sentence - Appeal allowed.
Magistrates Court Act 1991, s 42; Criminal Law Consolidation Act 1935, s 86A; Criminal Law (Sentencing) Act 1988, s 38; Australian Road Rules r 10, r 304; Road Traffic (Road Rules - Ancillary and Miscellaneous provisions) Regulations 1999, reg 50, referred to.
House v The King (1936) 55 CLR 499; Gardner v Janic (1975) 12 SASR 495, applied.
R v Harris (1992) 59 SASR 300; R v Place (2002) 81 SASR 395; R v Kane [2003] SASC 237; Wood v Samuels (1974) 8 SASR 465, considered.

JAMIESON v POLICE
[2004] SASC 335
Magistrates Appeal
WHITE J
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991 against a sentence imposed by a Magistrate on 3 August 2004.
The appellant pleaded guilty to three charges. Each offence occurred on 14 August 2002. The first was that he had driven a motor vehicle without first obtaining the consent of the owner, contrary to s 86A of the Criminal Law Consolidation Act 1935. The second was that he had failed to obey a reasonable direction for the safe and efficient regulation of traffic given to him by a police officer in contravention of rule 304(1) of the Australian Road Rules. The third was that he had driven on roads in Campbelltown, Newton and Paradise in a manner which was dangerous to the public. Each of the offences arose out of the unauthorised use of a motor vehicle involving a high-speed chase by police on 14 August 2002.
In respect of the offence of use of the vehicle without the consent of the owner (“illegal use”) the Magistrate sentenced the appellant to 10 months imprisonment. However, he directed that the appellant was to serve one month of that sentence and suspended the remainder of the sentence, pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988, upon condition that the appellant enter into a bond in the sum of $400 to be of good behaviour for the balance of the period of imprisonment, namely nine months. In addition, the Magistrate ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months and that the period of disqualification should commence forthwith. The Magistrate also ordered the appellant to pay compensation to the owner of the vehicle in the sum of $9,735.28 and to pay $99 to the South Australian Police Department in respect of damage to a police vehicle.
In relation to the offence of driving in a manner dangerous, the Magistrate entered a conviction and imposed a fine of $300. In addition, the appellant was disqualified from holding or obtaining a driver’s licence for a period of 16 months, that disqualification also to commence forthwith.
Finally, in relation to the offence of disobeying reasonable directions from a police officer, the Magistrate entered a conviction without imposing any further penalty.
The Grounds of Appeal
On the appeal, the appellant argues that the sentence was manifestly excessive. In particular, he submits that the Magistrate failed to take adequate account of his prospects of rehabilitation and the effect of imprisonment on his employment. Two matters in particular were argued. First, the appellant submits that the term of imprisonment imposed is too long. Secondly, the appellant submits that the sentence should have been wholly suspended.
The Circumstances of the Offences
On the evening of Wednesday 14 August 2002, the victim was assaulted and knocked unconscious by some persons with whom the appellant had an association. It was not suggested that the appellant was involved in that incident. Whilst the victim was unconscious, some personal items, including the car keys to his Mitsubishi Cordia sedan were taken from him. Police were called to investigate the incident. When they arrived, the victim’s vehicle was driven away by the appellant. The car had three other occupants. A high-speed pursuit then took place through a number of streets in Campbelltown, Newton and Paradise. The appellant drove above the speed limit, in attempts to escape the police who were following him. The circumstances of the chase involved considerable danger, not only to the appellant and the occupants of the vehicle, but to other road users and the residents of the streets on which the appellant travelled. At various times the appellant lost control of his vehicle, skidding and fishtailing. Collisions occurred with at least one tree and several letterboxes were demolished and, at times, the vehicle travelled through the front lawns and gardens of houses in streets where the appellant had lost control of the vehicle. On several occasions the vehicle was driven at a speed of not less than 80 km/h. When the appellant finally stopped the vehicle, the pursuing police vehicle stopped behind him. The appellant then reversed into the police vehicle causing slight damage, which was the subject of the compensation order of $99 referred to above.
Substantial damage was caused to the victim’s car. It was, as he said in his Victim Impact Statement, his “prized possession”. He had spent considerable money and effort on its appearance. He also said that the experience had affected him psychologically, as he now has a somewhat despondent view about the value of good possessions.
Maximum Penalties
The maximum penalty for a first offence of using a motor vehicle without the owner’s consent is two years imprisonment. The offence also carries a mandatory 12-month driver’s licence disqualification. A first offence of driving in a manner dangerous to the public carries a maximum penalty of a $600 fine and a minimum $300 fine. A sentencing judge is also required to impose a driver’s licence disqualification, for a minimum of six months. A breach of rule 304(1) of the Australian Road Rules carries a maximum penalty of a $1250 fine: see rule 10 of the Australian Road Rules and reg 50 of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999.
The Appellant’s Personal Circumstances
The offences for which the Magistrate was sentencing the appellant were the appellant’s first offences. The appellant was a young man, only 20 at the time of the offences and 22 when sentenced.
The Magistrate accepted the appellant’s submission that he had good prospects of rehabilitation. The basis for that conclusion was that the appellant had “taken steps to deal with his inappropriate use of drugs and alcohol”. In particular, the appellant has voluntarily participated in drug and alcohol rehabilitation programmes. He has also made efforts to address some other issues which are not directly relevant to the commission of these offences, such as anger management. The Magistrate also accepted that the appellant’s plea of guilty was representative of genuine contrition, and that he now had some empathy for the victim. Although not stating the specific discount afforded, he took the plea into account.[1]
[1]A sentencing court should specify the amount of the discount: R v Harris (1992) 59 SASR 300. But a failure to do so is not of itself a sentencing error such as to warrant interference with the sentence on appeal: R v Place (2002) 81 SASR 395 at 425.
At the time when the appellant was sentenced by the Magistrate, which was almost two years after the commission of the offences, the appellant was employed by Woolworths (SA) Pty Ltd on door security. The Magistrate was told that, should the appellant be required to serve time in custody, he would not be able to continue in his current employment.
The Sentence of Imprisonment for 10 Months
On the appeal, the appellant provided to the Court some statistics which tended to demonstrate that the average sentence of imprisonment for offences of illegal use was less than that which was imposed on the appellant. I do not consider that the use of statistics such as these, without more detail about the nature of the offences and offenders to which they relate, and whether they relate to first or subsequent offences, is of very much assistance in cases of this kind. The offences of illegal use can encompass a broad range of circumstances. There is a risk that the use of statistics will involve the comparison of dissimilar cases.
The appellant submitted that for a first offender, one would not expect a sentence as high as ten months imprisonment. However, the maximum penalty prescribed by Parliament for a first offence is two years imprisonment. That indicates that, in the very worst example of illegal use, notwithstanding that the perpetrator is a first offender, imprisonment for two years would be appropriate.
This case is not the worst case of its kind, but the circumstances of the offending were serious enough. Not only did the offence involve an unauthorised use of the victim’s vehicle, it involved an attempt to avoid being apprehended by the police, and a contumelious disregard for the property of the owner of the vehicle. It was committed in circumstances where the appellant knew that his passengers had recently assaulted the owner of the car. Although it is not appropriate to take into account the danger to the public occasioned by the manner in which the appellant drove (that having been taken into account in the penalty imposed for driving in a manner dangerous), the other factors which I have mentioned do aggravate the offence. The Magistrate referred to “the need to ensure that the [appellant] is adequately punished” as well as “the need to encourage and promote his rehabilitation”.
I do not think that it can be said that the sentence imposed is outside the range of sentences which were available to the Magistrate. In those circumstances, unless some definite error on the part of the Magistrate can be identified, I ought not to interfere with his conclusions as to the length of the sentence. See House v The King (1936) 55 CLR 499 at 504-5. In my view, no such error has been demonstrated.
Suspension of the Sentence
Section 38(2a) of the Criminal Law (Sentencing) Act permits a court which has sentenced a defendant to imprisonment for more than three months but less than one year to:
“direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison and suspend the remainder on the condition that the defendant enter into a bond [to be of good behaviour].”
That was the power exercised by the Magistrate in this case in ordering the appellant to serve one month of the term of imprisonment in custody but suspending the balance.
Although the Magistrate referred, in his sentencing remarks, to a number of matters relating to the appellant’s personal circumstances, he did not give any particular explanation as to the order for suspension. The order is somewhat curious. The Magistrate must have been satisfied that there was “good reason” for suspension of nine months of the 10 month sentence of imprisonment but that there was not “good reason” for suspension of the 10^th (or first) month. One might have thought that if there were good reason for suspension of 90 per cent of the sentence of imprisonment which had been imposed, then there would be good reason for the suspension of the whole. Against that, however, I note that s 38(2a) itself contemplates that all but one month of a sentence which is less than one year may be suspended. That indicates that what the Magistrate did is, at the least, permissible as a matter of law. However, I consider that it would be a relatively rare case in which it could be held that there was good reason to suspend 90 per cent, or more, of a sentence, but not the balance. As already noted, the Magistrate has not given any reasons for his having taken that approach in this case.
In my opinion, the Magistrate was correct in considering that there was good reason for suspension of nine months of the sentence. But he was in error, in my opinion, in not finding that there was good reason for suspension of the whole sentence.
First, the Magistrate had evidence of actual rehabilitation of the appellant, as a result of his own efforts, in the period since the commission of the subject offences. At the time those offences were committed, the defendant was a regular user of amphetamines and was living a life away from his parents’ home. Since the offending, the defendant had voluntarily undertaken rehabilitation courses in anger management, drug rehabilitation and alcohol rehabilitation and had participated in a government sponsored drug and alcohol survey requiring his involvement once every three months over a 12 month period. The appellant had ceased drug use. Furthermore, since the offending, the appellant had moved back to live in his parents’ home. This was not just for the convenience of his own accommodation. The Magistrate was told that the appellant was assisting in looking after his mother, who had been diagnosed with cancer, as well as looking after a younger sister. In addition, the appellant had established a stable relationship with a partner who resided with him at his parents’ home. In short, these matters by themselves establish significant rehabilitation, and significant change in the appellant’s circumstances. As was pointed out by Debelle J in R v Kane[2], this was a case where the court had evidence of actual and not just prospective rehabilitation.
[2] [2003] SASC 237 at [16] and [20].
Secondly, the appellant was in steady employment. Furthermore, it was employment of a kind which involved a degree of trust. It was to his credit that he was trusted by his employer with work of a responsible nature. In my opinion, the remarks of Mitchell J in Gardner v Janic[3] are apposite in this case:
“In the present climate of unemployment, I think that courts in this State will have to consider seriously whether short terms of imprisonment should be imposed upon any person who is in employment and is likely to lose his employment as a result of serving such a term of imprisonment. In other places there has been a tendency not to imprison for a short term where the effect will be that the person sentenced to imprisonment will lose his employment. This is because the courts have realized that the evils of people becoming unemployed are such that they should not add to them by imposing short terms of imprisonment. If the offence warrants a longer term of imprisonment, then clearly the court cannot concern itself with the fact that the person imprisoned will be likely to lose his employment. But where the offence warrants only a short term of imprisonment, then it seems to me that the courts should use every endeavour to employ some alternative means of sentencing, if the result means the person sentenced is thereby likely to become unemployed.”
[3] (1975) 12 SASR 495.
Thirdly, the ability of the appellant to commence satisfying the order for compensation which the Magistrate had made would clearly be compromised if he was imprisoned and lost his employment. An important consideration in this case, as the police prosecutor made plain to the Magistrate, was that the prospects of the victim being compensated for his loss should not unnecessarily be compromised.
It is true that the Magistrate does mention each of the three matters to which I have referred. However, he has referred to them in general and not with particular reference to his decision with respect to suspension. Given the unusual nature of the order for suspension made in this case, I consider that the Magistrate cannot have given them adequate weight when coming to exercise his discretion with respect to suspension. In my opinion, the appellant has demonstrated an error in the exercise of the discretion which warrants this Court’s intervention.
The objective of the Magistrate to ensure that the appellant is adequately punished for what is clearly serious offending is achieved even if the whole sentence is suspended. A suspended sentence is a very real punishment. I refer in this respect to the judgment of Walters J in Wood v Samuels (1974) 8 SASR 465 at 468-469.
In my opinion, this is a case in which the whole of the sentence of imprisonment which had been imposed should be suspended. The punishment of the appellant, and the requirements of deterrence are met by the imposition of the sentence of imprisonment. The particular circumstances of the appellant make suspension appropriate.
Conclusion
For the reasons given, I allow the appeal. In respect of the offence of illegal use of a motor vehicle, I set aside the order of the Magistrate that the appellant serve one month of that sentence and that the remainder be suspended. I substitute for that order an order that the sentence of imprisonment of 10 months be suspended on condition that the appellant enter into a bond in the sum of $400 to be of good behaviour for a period of 18 months. The remaining orders of the Magistrate are to stand.

Order

The orders of the Court are:
1Appeal allowed.
2The sentence which was imposed by the Magistrate on 3 August 2004 for the offence of driving a motor vehicle without the consent of the owner is set aside.
3In lieu thereof, I impose for the offence of driving a motor vehicle without the consent of the owner, a sentence of 10 months imprisonment, to commence on 3 August 2004.
4That sentence is wholly suspended upon the appellant entering into a bond in the sum of $400 to be of good behaviour for a period of 18 months.
5The other orders made by the Magistrate, including orders for licence disqualification, fines and compensation, are to stand.