Jeffrey Kilford Wright v Jason Gavin Young No. 4198 Judgment No. SCGRG 93/1419 Number of Pages 5 Criminal Law Sentencing

[1993] SASC 4198

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - sentencing - Crown appeal as to two sentences, ordered to be served concurrently, each of four weeks imprisonment, imposed on a 26 year old man on admitted charges that he drove a vehicle under the influence of liquor (.23l per cent blood alcohol) and whilst disqualified - bad record of driving ofences, including five prior convictions for driving with excessive blood alcohol and four prior convictions for driving whilst disqualified - held that the penalties were clearly manifestly inadequate, but as the respondent had been released, had resumed his place in the community and was employed, and bearing in mind that the Notice of Appeal was served late, after his release, it would be unduly harsh to make an order which would result in his re-arrest and further confinement to goal. Osenkowski (1982) 30 SASR 212; Laxton v Justice (1985) 38 SASR 376; Coombe v Douris (1987) 47 SASR 324 and Hollands v R (unreported) Judgment No 3669, King CJ, Cox and Mattheson JJ, considered.

HRNG ADELAIDE, 22 September 1993 #DATE 22:9:1993
Counsel for appellant:     Ms J. Rugless
Solicitors for appellant:    Crown Solicitor (SA)
Counsel for respondent:     Ms M. Shaw
Solicitors for respondent: Voumard Bell

ORDER
Appeal dismissed.

JUDGE1 PERRY J The complainant appeals to this Court against the sentence imposed on the defendant, who is the respondent to the appeal, in the Magistrates Court at Port Pirie with respect to a complaint, to which the respondent pleaded guilty, alleging that on 19 March 1993 at Port Pirie the respondent drove a motor vehicle whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of it, that he drove a motor vehicle on the same occasion whilst his licence was suspended, and that he failed to state his full name and address. A further count that the respondent drove with an excess blood alcohol concentration was withdrawn. 2. The learned Magistrate was informed by the assistant police prosecutor who appeared for the complainant, that at about 3.28 am on the date of the offences the defendant was observed driving a Holden utility along Anzac Road, Port Pirie. The vehicle was seen to veer from the left to the right, to the extent that the entire vehicle went onto the incorrect side of the road. This occurred on six occasions. The respondent was then stopped. 3. On alighting from the vehicle the respondent stumbled and held on to the utility for support. There was a strong smell of liquor, and the arresting officers formed the opinion that he was driving under the influence of alcohol. When he was asked to undergo a breath analysis he resisted with a degree of violence, and refused to state his name and address. He was, however, subsequently subjected to a breath analysis test which gave rise to a reading of .231 per cent blood alcohol. 4. When a check was made as to his licence it appeared that it had been disqualified on 5 October 1989 for a period of some four years, expiring on 4 October 1993. 5. The respondent was represented in the Court below by counsel, Mr Voumard, whose affidavit as to the submissions which he in turn made to the learned sentencing Magistrate was received by me on the hearing of the appeal. It appears from that affidavit that the submissions made by him were to the effect that the respondent's motor vehicle had been garaged at a friend's place for several months in view of the respondent's licence disqualification. On the evening before the offences were committed, the respondent attended at the friend's house where he embarked on a course of heavy drinking. He realised at some stage that he had to turn up for work the next morning. He had had difficulties with his employment and did not wish to miss out on the work that had been offered to him. He felt obliged in those circumstances to take the vehicle and drive home so that he would be ready for work. 6. Mr Voumard made submissions as to the defendant's employment history generally, and put it to the learned Magistrate that apart from the effects of his drinking problems, the respondent was hardworking and that at the time of his appearance in Court he had a three week fencing contract at Whyalla. 7. Counsel went on to draw attention to the respondent's unfortunate childhood and other pressures which led apparently to his drinking becoming a serious problem. He intimated to the Court that the appellant, now 26 years of age, had decided to seek an assessment from the Drug and Alcohol Services Clinic at the Port Pirie Hospital. He invited the Magistrate to consider suspending any sentence of imprisonment. 8. The respondent is almost 27 years of age. He has a substantial, indeed, the word appalling might not be too severe a word to use, record of offences, mainly driving offences associated with liquor. Since 1986 he has accumulated five previous convictions for driving with excess blood alcohol and he has four prior convictions for driving whilst disqualified. 9. On 5 October 1989 he appeared in Court at Port Pirie on a series of driving offences, including three offences of driving whilst disqualified. The penalties imposed on those three offences in particular were respectively two sentences of imprisonment of one month and one of six weeks of imprisonment which were directed to be served cumulatively. The result of that was the imposition of a total term with respect to the driving whilst disqualified offences of three and a half months imprisonment. 10. Later, on 3 February 1992 the respondent appeared in Court again at Port Pirie on a charge of driving whilst disqualified with respect to which he was sentenced to six weeks imprisonment. 11. The learned sentencing Magistrate delivered ex tempore remarks as to penalty. After referring to the submissions which had been made by the respondent's counsel he observed:
    "It is my opinion that in your case the safety of the
    public must be of paramount consideration. You are a
    potential menace on the road. You will be disqualified from
    holding and obtaining a driving licence until further order.
    As to your counsel's request to suspend any term of
    imprisonment, I do not, in all the circumstances, feel it
    appropriate to do so. However, I will keep it as short as I
    can as I cannot see any benefit to you or the community in
    making it a long term. It will only serve to punish you. I
    am told you want to rehabilitate yourself and hopefully
    whilst in custody you will commence to execute that
    intention and take advantage of programmes offered." The learned Magistrate then proceeded to impose a penalty of four weeks imprisonment on the driving under the influence charge and a further four weeks imprisonment on the driving whilst disqualified charge, that term to be served concurrently with the term imposed on the first count. He convicted without penalty on the charge of refusing to give his name and address. 12. On the hearing of the appeal in this Court, the appellant argued one ground only and that was that the sentences imposed were manifestly inadequate. 13. I had thought at first that the principles applicable to Crown appeals in the criminal jurisdiction were not of direct application to appeals under the Magistrates Act. But it does appear that other Judges of the Court have approached the question of magistrates or justices appeals with the principles which found expression in Osenkowski (1982) 30 SASR 212 in mind (see, for example, Laxton v Justice (1985) 38 SASR 376). 14. In my opinion, having regard to the very careful and thorough arguments presented by Ms Rugless, the two sentences here in question were demonstratively and manifestly inadequate. It appears that the maximum sentence for the driving whilst disqualified offence was six months imprisonment, and with respect to the offence of driving under the influence, there was a similar maximum but with the alternative of a fine of no less than $1,500 and no more than $2,500. 15. The offence in particular of driving whilst disqualified is a serious offence which contains within it elements of contempt of court. The seriousness of the offence and the appropriateness of an immediate custodial term of imprisonment in such cases was emphasised by His Honour the Chief Justice King CJ in Coombe v Douris (1987) 47 SASR 324. The seriousness of that offence was again the subject of comment by the Court of Criminal Appeal in Hollands v R (unreported), Judgment No 3669, King CJ, Cox and Matheson JJ. 16. In the course of his judgment in that case, King CJ said: "The Supreme Court has frequently stressed the seriousness of driving whilst disqualified, involving as it does as it does a defiance of an order of the Court, and striking, as it does, at the foundation of the system of punishment by means of licence disqualification." If it were not for the matters which I now come to, it appears to me that the appeal would be made out and it would be proper to substitute, as to both of the offences upon which penalty was imposed, a substantially longer term of imprisonment. 17. However, in this case, the respondent has served the term of imprisonment which was imposed. It is not entirely clear when he was released, but it must have been some time before the end of July 1993. He was released before any notice of appeal was served upon him. It was served late, and at the outset of the hearing today I granted an extension of time for service to and including 29 July 1993. 18. At that stage, the defendant was living at an address at Port Pirie. From Mr Voumard's affidavit, it appears that the respondent is now living at Kimba where he is employed by a blasting and drilling company. 19. To contemplate the allowance of the appeal at this stage and the substitution of an increased term of imprisonment would mean that after the respondent had served out the term which had been ordered by the learned Magistrate, and resumed his place in the community, he would have to suffer the hardship and upset of being re-arrested and re-confined in gaol. That unquestionably would involve an element of double jeopardy which must cause the Court to pause before following that course. 20. In the case of Hicks (1986) 27 A Crim R 401, the Court of Criminal Appeal was dealing with a case involving the suspension of a sentence of imprisonment imposed upon an elderly respondent convicted of causing death by dangerous driving. In the course of his judgment in that case, King CJ said at 404:
    "As has been pointed out in those cases, prosecution
    appeals fall to be decided on somewhat different
    considerations than appeals by persons under sentence. When
    a person such as the present respondent has been told that
    he will not have to go to prison, a great load is lifted
    from his mind. The consequences of reversing that
    intimation could be devastating. I do not think that any
    consideration of justice or the protection of the public
    demands that this particular respondent, after he has been
    told by a court that he will not have to go to prison,
    should now be told by this appellate Court that he must
serve the sentence." 21. I refer also to Nguyen (1985) 119 LSJS 408. In that case, the Court was dealing with a respondent who was still in custody and approaching the end of the non-parole period. 22. In the course of his judgment in that case, King CJ said (410):
    "This is a case, however, in which I am very much
    influenced by the fact that this respondent is approaching
    the end of the non-parole period that was set and is
    relatively close to the date on which he could expect to be
    released on parole. I think in these circumstances that
    that aspect of the Court's attitude to appeals by the
    Attorney-General, which has been loosely termed double
    jeopardy, assumes special significance, The Queen v Drewett
(1983) 35 SASR 344. I think that the Court must hesitate
    before frustrating the expectation which a prisoner has of
    being released on a certain date when the appeal is heard in
    close proximity to that projected release date." I would have thought those remarks applied a fortiori, where the prisoner has served out the term which he expected to serve by way of punishment for the offence, but then faces the prospect of re-arrest and re-confinement to gaol. 23. The element of double jeopardy in a similar context was also referred to by Olsson J in Laxton v J (supra) at 380. 24. In all the circumstances, notwithstanding my view as to the inadequacy of the penalties imposed upon the respondent, the matters to which I have referred lead me to the view this is not a case in which this court should interfere. 25. However, it should not be thought that in any way the Court approves the penalties which are imposed. Substantially heavier penalties were clearly warranted and should have been given. But in the particular circumstances which have arisen, for the reasons which I have indicated, I would not be prepared to interfere now by way of appeal. 26. The appeal is dismissed. I order that the appellant pay to the respondent the respondent's costs of the appeal which I fix at $150.