Joanni v Police - [2004] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOANNI v POLICE
Judgment of The Honourable Justice Gray
29 July 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant convicted of two counts of driving at a speed dangerous - one previous conviction - sentenced to a suspended term of imprisonment - licence disqualification of three years for each offence - magistrate ordered that the suspension be cumulative - serious offending - total disqualification period crushing - appeal allowed - part concurrency of periods of disqualification ordered - total sentence manifestly excessive - appellant submitted disqualifications should have been partly concurrent.
Road Traffic Act 1961 (SA) s 46, s 169A, referred to.
Police v Nowak (2000) 76 SASR 551; Mill v The Queen (1988) 166 CLR 59; R v Griffiths (1989) 167 CLR 372; Galic v Police (Debelle J, 24 January 1997, unreported), considered.

JOANNI v POLICE
[2004] SASC 225
Magistrates Appeal

GRAY J: This is an appeal against sentence.
Paraskeva Joanni, the appellant, pleaded guilty to two counts of driving at a speed which was dangerous to the public contrary to Section 46 of the Road Traffic Act 1961 (SA).
The first count related to an offence that took place at 3.15pm on 24 December 2003 on Seaview Road. The appellant was observed to ride a motorcycle past police ‘doing a mono’. This expression relates to circumstances of a rider of a motorcycle raising the front wheel off the road while travelling. He was followed by police and eventually stopped. His speed was estimated at 110 kilometres per hour. The speed limit was 60 kilometres per hour. When questioned by the police he said that he heard the police siren, panicked and took off. The appellant acknowledged that he had been showing off.
The second count related to an offence on 25 January 2004 at 5.45pm. The appellant was timed at a speed of 116 kilometres per hour on Military Road. The speed limit was 60 kilometres per hour. It was said that his pillion passenger was a prospective purchaser. The performance of the motorcycle was being demonstrated.
Section 46 of the Road Traffic Act relevantly provides:
(1)     A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
Penalty:
For a first offence--a fine of not less than $300 and not more than $600.
For a subsequent offence--
(a)   a fine of not less than $300 and not more than $600; or
(b)   imprisonment for not more than three months.
…
(3)     Where a court convicts a person of an offence against subsection (1), the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence
(i)in the case of a first offence--for such period, being not less than six months, as the court thinks fit; or
(ii)in the case of a subsequent offence--for such period, being not less than three years, as the court thinks fit;
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.
(4)    In determining whether an offence is a first or subsequent offence for the purposes of this section, only a previous offence against subsection (1) for which the defendant has been convicted that was committed within the period of five years immediately preceding the commission of the offence under consideration will be taken into account.
The appellant had been convicted in September 2000 of the offence of driving at a speed dangerous to the public. On that occasion he was fined $400.00 and disqualified from holding a drivers licence for a period of six months.
As a result, the December 2003 and January 2004 offences were subsequent offences for the purpose of section 46(3) of the Road Traffic Act. The appellant was exposed to a maximum term of imprisonment of not more than three months and to a licence disqualification for such period, being not less than three years, as the court thinks fit.
The Approach of the Magistrate
In respect of the December 2003 offending, the magistrate recorded a conviction and imposed a licence disqualification for a period of three years commencing on 10 May 2004. In respect of the January 2004 offence, the magistrate imposed a suspended term of imprisonment of two months and imposed a licence disqualification for a further period of three years. The magistrate ordered that the periods of licence disqualification be cumulative.
When sentencing the magistrate remarked:
I do give you credit for your plea of guilty. Clearly you are to be sentenced as a subsequent offender for these two offences.
I have been urged by your counsel to impose the minimum period of disqualification.
I have, at the end of the day, acceded to that submission and you will be disqualified for a period of 3 years on the first offence to commence at 12.01a.m. on 10 May, 2004. You must understand that you must not drive for any period during those 3 years. If you do so you will make yourself liable for imprisonment for driving whilst disqualified. I consider in all the circumstances a fine to be appropriate of $500.
In relation to the second offence I regard your continued disregard of the road traffic laws to be so reprehensible and the fact that you have placed yourself and indeed your passenger and other potential road users in danger, that I consider a term of imprisonment appropriate in all the circumstances. I consider a term of 2 months imprisonment appropriate. After I take into account all said to me I am satisfied that there is good reason to suspend that sentence. That sentence will be suspended upon you entering in a bond in the sum of $200 to be of good behaviour for 2 years. For that offence you will be disqualified for a period of 3 years. That disqualification will be cumulative upon the 3 years disqualification on the first offence.
Section 169A of the Road Traffic Act
Section 169A of the Road Traffic Act empowers the court to order that an order for disqualification take effect on the expiration of another disqualification period imposed for a separate offence. The section provides:
Where, pursuant to this Act or any other Act, a court orders that a convicted person be disqualified from holding or obtaining a driver's licence, the court may, if it is satisfied that reasonable cause exists for doing so, order that the disqualification take effect from a day or hour subsequent to the making of the order.
Affidavit evidence put before this court disclosed that counsel for the appellant did not address the magistrate as to whether the disqualifications should be cumulative. It is evident that the magistrate was of the view that the disqualification periods should be cumulative. He made an express statement to that effect.[1] However, no reasons were given for this conclusion and no consideration or discussion of the totality principle appears to have occurred.
[1] See Boehm v Milham (1980) 24 SASR 98; Pietkun v Police (1997) SASC S6490 (15 December 1997) Perry J
There is possible tension between sections 46(3) and 169A of the Road Traffic Act. Section 46(3) imposes a statutory minimum penalty for subsequent dangerous driving offences, while section 169A allows the court to postpone a period of licence disqualification. In Police v Nowak[2], although a final decision on the question was not reached, the Full Court took the view that section 169A could be utilised in respect of offences under section 47B of the Road Traffic Act a section imposing maximum penalties for drink driving offending. In the present case, counsel for the Crown conceded that section 169A had application to the appellant’s offending.
[2] (2000) 76 SASR 551
Principle of Totality
On appeal it was contended that in totality, the sentences imposed by the magistrate were manifestly excessive. It was said that when regard was had to the suspended term of imprisonment, the cumulative licence disqualifications were excessive. Counsel for the appellant developed the submission that the magistrate had failed to have regard to the principle of totality. It was submitted that a disqualification period of six years, as imposed by the magistrate, would mean that the appellant would be almost 30 years of age before being able to obtain a driver’s licence. The appellant is a student and presently 23 years of age. In these circumstances the penalty was said to be unduly harsh and manifestly excessive.
In Mill v The Queen[3] the members of the High Court observed:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references):
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
[3] (1988) 166 CLR 59 at 62 - 63
In R v Griffiths[4] Gaudron and McHugh JJ commented:[5]
It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: …. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of head sentence appropriate to the total criminality with all other sentences to be served concurrently. In Attorney-General v. Tichy King C.J. said:
"The essential thing to be borne in mind is that if the sentences are made consecutive there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence."
But as Wells J. pointed out in the same case:
"The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration."
It has been accepted that the principles of totality apply to orders of licence disqualification. [6]
[4] (1989) 167 CLR 372 at 393 - 394
[5] Attorney-General (SA) v Tichy (1982) 30 SASR 84 has recently been approved by Gleeson CJ in Johnson v The Queen [2004] HCA 15.
[6] For example see Warner, Sentencing in Tasmania, (2^nd edn., 2002) at 172 [6.321]
It is recognised that ordering licence disqualification periods to be served consecutively, or as partly consecutive, is a means by which the totality principle can operate when a court is sentencing an offender for separate offences. As Debelle J observed in Galic v SA Police:[7]
The period of three years disqualification ordered for each offence was the prescribed minimum. It was open to the magistrate to order a higher period of disqualification. However, it is apparent that the magistrate has failed to have regard to the totality of the order which he had made. Although the magistrate was entitled to treat each of the offences as having occurred on quite separate occasions and, to that extent, to impose orders which operated cumulatively, it was equally necessary for the magistrate, having ordered the periods of disqualification, to have regard to the totality of the criminality involved in the appellant's conduct and to determine whether the overall penalty was, in all the circumstances, appropriate.
[7] (1997) SASC s5992 (24 January 1997) Debelle J – see also Watson v Police (1998) SASC S6623 (9 April 1998) Bleby J
Conclusion
The conduct of the appellant involved serious breaches of the statutory provision. As the magistrate observed, the January 2004 offending put the appellant’s passenger at risk. Other road users were also potentially put at risk. The appellant was fortunate, as were others, that no mishap occurred.
The magistrate addressed the seriousness of the January 2004 offending by imposing a term of imprisonment of two months. Bearing in mind the allowance made for the plea of guilty, it is evident that the magistrate must have started at or close to the maximum statutory sentence of three months imprisonment when arriving at the term of imprisonment of two months. Although an order was made suspending the term of imprisonment, it remains a very significant punishment.[8] In addition, counsel for the appellant drew the court’s attention to the undue hardship that would result from the cumulative periods of licence disqualification given the appellant’s personal circumstances.
[8] Elliot v Harris (No 2) (1976) 13 SASR 516 at 527; Rae v Police [2002] SASC 270
When regard is had to the two terms of disqualification together with the term of imprisonment, there is substance in the complaint that the sentences were crushing. The magistrate’s remarks do not suggest that, having identified the sentence to be imposed for the two offences, he “stood back” and considered the principle of totality.
Having regard to the term of imprisonment imposed, a proper consideration of the totality principle called for some concurrency of the periods of licence disqualification. In the circumstances of the present case, it was appropriate to have directed that the licence disqualification be in part consecutive and in part cumulative.
The appeal is allowed for the limited purpose of altering the date on which the licence disqualification in respect of the January 2004 offence is to commence. That licence disqualification is to commence on 10 May 2005. This allows for a period of two years concurrency.