Jones v Police - [2023] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
JONES v POLICE
[2023] SASC 55
Judgment of the Honourable Justice Nicholson
13 April 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS
Appeal against sentence.
The appellant pleaded guilty to four driving offences and subsequently was sentenced on 27 July 2022 in the Magistrates Court for (i) driving whilst disqualified on 24 March 2021; (ii) exceeding the speed limit by 20-29km/h on 24 March 2021; (iii) driving a vehicle with a combination of drugs in fluid or blood on 24 March 2021; and (iv) driving whilst disqualified on 2 November 2021. The appellant also admitted to breaching her bond to be of good behaviour through the offending on 24 March 2021.
The Magistrate imposed a $1,500 fine and disqualified the appellant from driving for two years. The appellant was also sentenced to imprisonment for the total term of three months and three days. On 16 August 2022, the appellant was granted bail pending the appeal.
The sentence of imprisonment is the subject of the appeal.
Held:
1.Appeal allowed.
2.The appellant is re-sentenced to imprisonment for 51 days, which will be suspended provided the appellant enters into a bond to be of good behaviour for 18 months.

Australian Road Rules r 20; Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 91(5); Road Traffic Act 1961 (SA) s 47B(1)(a), referred to.
House v The King (1936) 55 CLR 499; Police v Cadd (1997) 69 SASR 150; Police v Chilton (2014) 120 SASR 32, considered.

JONES v POLICE
[2023] SASC 55
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 27 July 2022, the appellant, Lisa Marie Jones was sentenced in the Magistrates Court for a number of driving offences and for breaching a good behaviour bond. The appellant has appealed against the term of imprisonment that was imposed. The applicant had pleaded guilty to the following offences:
(i)driving whilst disqualified contrary to subection 91(5) of the Motor Vehicles Act (1959) SA (the second driving disqualified offence), committed on 24 March 2021;
(ii)exceeding the speed limit by 20-29km/h contrary to rule 20 of the Australian Road Rules, committed on 24 March 2021;
(iii)driving a vehicle with a combination of drugs in fluid or blood, contrary to subsection 47B(1)(a) of the Road Traffic Act 1961 (SA) committed on 24 March 2021; and
(iv)driving whilst disqualified committed on 2 November 2021 (the third driving disqualified offence).
The appellant admitted that the offending on 24 March 2021 caused her to breach a bond to be of good behaviour entered into on 13 July 2020 for an earlier offence of driving whilst disqualified (the first driving disqualified offence). The bond was one that required the appellant to come up for sentence, if breached.
For the first drive disqualified offence (the subject of the bond) the Magistrate fixed a term of imprisonment for 30 days after allowing a discount of 30 per cent from a starting point of 42 days for the plea. For the second and third drive disqualification offences, the Magistrate imposed the one penalty for both offences of imprisonment for two months and three days after allowing a discount of 30 per cent from a starting point of three months for the pleas. The Magistrate ordered that the total period of three months and three days was to be served and to commence on the day of sentencing, 27 July 2022; that is, his Honour declined to suspend the sentence in part or whole or to order that it be served on home detention.
As to the speeding offence, the Magistrate convicted the appellant without penalty and as to the drug driving offence, his Honour imposed a fine of $1,500 and a further licence disqualification for two years.
It is only the sentence of imprisonment that is the subject of the appeal. The maximum penalty for each of the drive disqualified offences was imprisonment for two years. On 16 August 2022, the appellant, having served 20 days of the prison sentence was granted bail pending the appeal.
The Magistrate described the appellant’s offending as “very serious”, particularly, as she came before the Court as a serial driving disqualified offender. The Magistrate outlined the circumstances of the offending before his Honour and of the offending the subject of the bond. In all cases, the circumstances were unremarkable for offences of the type in question. His Honour then summarised the legal principles applicable to sentencing for driving disqualified. His Honour found that the appellant’s repeated conduct here displayed a dismissive attitude and that the offending was contumacious. The Magistrate then summarised the appellant’s difficult and unfortunate circumstances before proceeding to sentence in the manner earlier set out. His Honour declined to suspend the prison term imposed or to order that it be served on home detention conditions.
Grounds of appeal
The appellant has raised the following grounds of appeal set out in the notice of appeal.
1)The Learned Sentencing Magistrate on resentence of the Bond of Good Behaviour failed to hear any facts as concerns that matter.
2)The Learned Sentencing Magistrate failed to wholly or partially suspend the sentence.
3)The Learned Sentencing Magistrate failed to impose a Home Detention sentence.
4)The appellant reserves the right to amend these grounds in the future after receiving the advice of Independent Counsel.
An appeal of this nature arises pursuant to section 42 of the Magistrates Court Act 1991 (SA) and is an appeal by way of rehearing. However, it is to be determined in accordance with the principles summarised by the High Court in House v The King.[1]
[1] (1936) 55 CLR 499 at 505.
Consideration
The driving disqualified offending was undoubtedly serious and called for the imposition of a term of imprisonment.[2] Both personal and general deterrence together with denunciation of the conduct are important considerations. However, the appellant’s personal circumstances and the circumstances of the offending were sufficiently compelling to require leniency.
[2] Police v Cadd (1997) 69 SASR 150; Police v Chilton (2014) 120 SASR 32.
The appellant was 51 at the time she was sentenced. Apart from the driving disqualified offences, she has no prior record of any significance. The appellant had not previously served any time in prison or had the benefit of a suspended prison sentence. She has three adult children (all in their 20s) who live with and remain largely dependent on her. The eldest has been confronting social issues associated with transitioning as a transgender person and a recent diagnosis of bowel cancer. This child has been very dependent on the appellant’s support. The appellant, herself, has struggled with significant, particularly mental, health issues. She suffers from post-traumatic stress disorder and depression likely as a result of the abusive conduct of her former partner, attempted suicide in early 2022 and has spent time in Woodleigh House, an acute care mental health facility in the northern suburbs of Adelaide. She also suffers from chronic pneumonia.
The circumstances of the driving disqualified offences committed on 24 March and 2 November 2021 resulted from the appellant’s fraught relationship with her former partner. On the first occasion, the appellant collected her partner from prison after he had served some time for his domestic violence. She initially refused to do so but after multiple phone calls and requests she bowed to the pressure and relented. She was fearful for her safety. On the latter occasion, the appellant was in the process of escaping from the same man and getting away from him as quickly as she could. In each case there were alternatives available to her; in neither case were the circumstances sufficient to provide a defence. However, in each case they do serve to reduce her moral culpability.
There is little, if any, merit in the first appeal ground. It is true that the Magistrate was not informed and did not seek to inform himself of the circumstances of the driving disqualified offence, the subject of the bond. However, counsel for the appellant could have done so. Further, the circumstances were quite unremarkable and I am satisfied that, if ventilated, they would have had no material effect on the sentence for that offence.
However, it is a very serious matter to imprison a 51 year old, with no prior record of significance, for the first time and, particularly, a person in the appellant’s personal circumstances. Further, as mentioned, the latter two driving disqualified offences were committed in extenuating circumstances.
The total term of imprisonment of a little more than three months was severe for the offending in question and as a first sentence with respect to this offender. Given such a lengthy period, it was unreasonable in the House v The King sense not to have suspended at least part of the sentence. I allow the appeal on the basis of the second appeal ground.
I re-sentence the appellant as follows: for the offence underlying the breach of bond, imprisonment for 18 days;[3] for the 24 March 2021 offence, imprisonment for 25 days;[4] and for the 2 November 2021 offence, imprisonment for 28 days.[5] The three terms are to be served cumulatively. However, the appellant served 20 days before being released on bail last year. I therefore reduce the total of 71 days to 51 days for time served.
[3]     After allowing a discount of approximately 30 per cent from a starting point of 25 days.
[4]     After allowing a discount of approximately 30 per cent from a starting point of 35 days.
[5]     After allowing a discount of 30 per cent from a starting point of 40 days.
Having served 20 days in custody should have been a salutary experience for the appellant. This also will add to the general deterrent effect of the sentence to be imposed. This, together with the personal circumstances outlined earlier, provide good reason to suspend the sentence. I sentence the appellant to imprisonment for 51 days which I will suspend provided the appellant enters into a bond to be of good behaviour for 18 months.