KOHLER v Police - [2013] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KOHLER v POLICE
[2013] SASC 69
Judgment of The Honourable Justice White
20 May 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES
A Magistrate imposed a single sentence of six months imprisonment for two offences of driving while disqualified and suspended the sentence upon the appellant entering into a bond to be of good behaviour - the appellant appeals against the period of imprisonment on the ground that it is manifestly excessive.
Held (allowing the appeal):
(1) Although the Magistrate stated that he had made reductions on account of the appellant's guilty pleas, he did not specify the amount of those reductions - whilst it is desirable for the amount of the reduction to be stated, the omission to do so does not amount to an error (at [16]).
(2) The Magistrate was correct to view the offending seriously, especially given its contumacious nature - however, when account is taken of the appellant's youth, background and psycho-social profile, and the proximity of the Magistrate's apparent notional sentence for the second offence to the applicable maximum, the sentence imposed is manifestly excessive (at [22], [30]).
(3) Appellant resentenced.
Motor Vehicles Act 1959 (SA) s 9, s 74, s 91, s 102; Australian Road Rules r 20, r 270, referred to.
Eldridge v Bates (1989) 51 SASR 532; O'Toole v Police [2006] SASC 206; Police v Cadd (1997) 69 SASR 150; Police v Nowak (2000) 76 SASR 551; R v Carroll (1989) 154 LSJS 359; R v Harris & Simmonds (1992) 59 SASR 300; R v KWG [2000] SASC 398; R v McGaffin [2010] SASCFC 22; R v Mills [1998] 4 VR 235; R v Place (2002) 81 SASR 395; Ryszawa v Samuels [1969] SASR 158; Wessling v Police (2004) 88 SASR 57, considered.

KOHLER v POLICE
[2013] SASC 69
Magistrates Appeal

WHITE J. A Magistrate imposed a single sentence of imprisonment for six months on the appellant for two offences of driving while disqualified, contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) (MVA). The Magistrate then suspended that sentence upon the appellant entering into a bond to be of good behaviour for a period of two years and to comply with other conditions.
The appellant contends that the sentence of six months is manifestly excessive.
Background
The appellant was born in May 1993. He was just 19 years old at the time of his two offences.
On 23 August 2011, the appellant had been sentenced in the Youth Court for the offences of exceeding the speed limit[1] and driving while unauthorised,[2] committed on 4 August 2010. The latter offence was his second offence of driving while unauthorised. The Youth Court imposed a three year licence disqualification, that being the minimum period of disqualification required by s 74(5) of the MVA.
[1] Contrary to r 20 of the Australian Road Rules.
[2] Contrary to s 74(2) of the Motor Vehicles Act 1959 (SA).
The appellant was sentenced in the Magistrates Court on 26 June 2012 for driving offences committed on 19 February 2012. Those offences were driving an unregistered vehicle,[3] driving an uninsured vehicle,[4] driving while unauthorised, and riding a motor bike without a helmet.[5] The Magistrate imposed a second three year licence disqualification, commencing that same day.
[3] Contrary to s 9(1) of the Motor Vehicles Act 1959 (SA).
[4] Contrary to s 102(1) of the Motor Vehicles Act 1959 (SA).
[5] Contrary to r 270 of the Australian Road Rules.
Regrettably, the appellant committed the further driving offences giving rise to the present appeal. On 21 May 2012 (that is, before the sentence imposed on 26 June but while subject to the disqualification imposed on 23 August 2011) the appellant rode a motor bike (described by the appellant’s counsel as a “road bike”) on Main North Road at Elizabeth Grove. The bike was unregistered and uninsured. As a consequence he was charged with the offences of driving an unregistered motorcycle, driving an uninsured motorcycle, driving unauthorised and driving while disqualified.
The appellant pleaded guilty to the first, second and fourth of these offences and the prosecution did not proceed with the third.
The appellant claimed that he was test riding the bike for use as an off‑road dirt bike. However, he also acknowledged that he had ridden the bike to some shops, and was returning to his own home at the time. In addition, he was carrying a pillion passenger.
On 20 July 2012, the appellant committed another offence of driving while disqualified, by driving a car on Main North Road, Smithfield. At this time he was subject to the two separate periods of disqualification. The appellant acknowledged to the police that he knew that he was disqualified from holding or obtaining a driver’s licence, and knew that he was committing an offence by driving the car. This was the second of the two offences of driving while disqualified for which the Magistrate sentenced the appellant.
The appellant committed a third offence of driving while disqualified on 30 August 2012. However, he was sentenced separately for that offence (on 4 October 2012) and the Magistrate took no account of it.
The Magistrate’s Decision
The Magistrate imposed fines for the offences of driving an unregistered and uninsured motorcycle committed on 21 May 2012. The appellant makes no complaint on this appeal concerning those fines.
As to the offences of driving while disqualified, s 91(5) of the MVA fixes a maximum penalty of imprisonment for six months for a first offence and a maximum penalty of imprisonment for two years for a subsequent offence. The Magistrate accepted, correctly, that each of the offences committed on 21 May 2012 and 20 July 2012 was to be treated as a first offence, as neither had been committed after the appellant’s conviction for an earlier contravention of s 91(5).[6]
[6] Ryszawa v Samuels [1969] SASR 158 at 159-160; Police v Nowak [2000] SASC 82 at [9]-[17], (2000) 76 SASR 551 at 552-3; R v KWG [2000] SASC 398 at [111]-[112].
The Magistrate regarded each of the offences of driving whilst disqualified committed on 21 May and 20 July 2012 as contumacious. The appellant did not contest that characterisation.
The Magistrate also regarded the offence on 20 July 2012 as being aggravated by the circumstance that the appellant knew of the wrongfulness of his conduct by reason of his apprehension for the same offence only two months previously on 21 May 2012. This too was an appropriate view of the matter.[7]
[7] O’Toole v Police [2006] SASC 206.
Counsel for the appellant provided the Magistrate with a copy of a report from Mr Balfour, a psychologist. I will refer to this report later. The Magistrate said:
Mr Balfour endeavours to give an insight into your behaviour and your circumstances. He adduces compelling reasons why the Court ought to look favourably upon you in determining how to best deal with this offending rather than to simply lock you up.
In saying this, it is really up to you to determine how you conduct yourself and whether or not you stay out of trouble. No one is better placed to oversee your behaviour than yourself and, obviously, if you continue down this path, you are eventually going to see what the inside of a prison looks like. You shouldn’t need me to tell you that it is not the place for a young 20 year old to be.
...
I take into account your plea of guilty and the matters your counsel has put on your behalf together with the report of Mr Balfour and the matters set out in ss 10 and 11 of the CLSA. I have considered s 11 and had regard to the prevailing case law on drive disqualified offending and, noting that the offending occurred in circumstances of contumacy, find that a period of imprisonment is appropriate. Allowing for the discounts for the guilty pleas and, taking both offences occurring on separate occasions into account in fixing an appropriate term, I fix six months as the term.
Consideration
Although the Magistrate said that in fixing the single sentence of imprisonment for six months, he had made reductions for the appellant’s guilty pleas he did not identify the amount of those reductions. It is desirable for the amount of the reductions to be stated.[8] However, the Magistrate’s omission to state the amount of the reductions is not of itself a ground for interference with the sentence.[9]
[8] R v Harris & Simmonds (1992) 59 SASR 300 at 302; R v Place [2002] SASC 101 at [81]-[83], (2002) 81 SASR 395 at 425.
[9] R v Place [2002] SASC 101 at [80], (2002) 81 SASR 395 at 425; Wessling v Police [2004] SASC 51 at [20]; (2004) 88 SASR 57 at 61.
It seems reasonable to suppose that the Magistrate allowed a reduction of 20-25 per cent. If he allowed a reduction of 25 per cent, then his starting point for the single sentence would have been imprisonment for eight months. It is a matter of conjecture as to how the Magistrate may have reached a starting point of that order. However, given that he treated the two offences as separate offending, it is likely to reflect the aggregate of two notional sentences. Further, the Magistrate regarded the offence committed on 20 July 2012 as more serious than that committed on 21 May 2012. The notional sentence for the second is therefore likely to have been higher than that for the first. This suggests that more than four months of a notional starting point of about eight months should be attributed to the second offence.
As I have said, there must inevitably be some speculation about the manner in which the Magistrate reached the sentence of six months. The analysis just outlined indicates, however, that the notional starting point for the sentence for the second offence was probably a relatively high proportion of the maximum of six months applicable to that offence.
Undoubtedly the appellant’s offending had to be viewed seriously. Within a period of two months he committed two offences of driving while disqualified, both in circumstances of contumacy.
This Court has previously emphasised that the offence of driving while disqualified is to be regarded as a serious offence. Its seriousness lies in the defiance of the law which it involves and in the effect which driving while disqualified has in nullifying the effect of an order of disqualification imposed for the protection of the public.[10] In Police v Cadd, Doyle CJ regarded the element of deliberate disobedience of the law, coupled with the effect which widespread commission of the offence has in undermining disqualification as an effective punishment, as being the most weighty matters in sentencing for the offence of driving while disqualified.[11]
[10] Police v Cadd (1997) 69 SASR 150 at 159-60, 162.
[11] Ibid at 163.
The majority in Cadd considered that, in the ordinary case of contumacious offending by a first offender, the punishment for a contravention of s 91(5) should be imprisonment, but allowed that the circumstances of the offending or of the offender, or both, may indicate that some less severe form of punishment is appropriate.[12]
[12] Ibid at 171.
Hence, the Magistrate was correct to view the appellant’s conduct seriously, especially given the contumacious nature of the offending. Using the words of Mullighan J in Cadd, the appellant’s conduct evinced an attitude of total disregard of the disqualifications imposed on him and disobedience to the authority of the Courts imposing the disqualifications.[13]
[13] Ibid at 179.
However, there are other considerations. The appellant was very young at the time of both offences, having just turned 19 years. The youth of offenders is usually regarded as a mitigatory factor in sentencing. The courts recognise that the young and immature can be more prone to ill‑considered action as they do not always appreciate fully the nature, seriousness and consequences of the criminality involved in their conduct. Further, the courts are alert to the potential for young offenders to be redeemed and rehabilitated, and recognise that a period of incarceration in an adult prison can sometimes impair, rather than improve, the offender’s prospects of a successful rehabilitation.[14] However, in assessing the effect of youth as a mitigatory factor in sentencing for the offence of driving while disqualified, account should also be taken of the observation of King CJ in Eldridge v Bates:[15]
It is unfortunate that a high proportion of persons who suffer disqualification from holding or obtaining a driver’s licence are young persons. It is amongst those young persons that the importance of making disqualification orders effective is most necessary.[16]
[14] R v Carroll (1989) 154 LSJS 359 at 360; R v Mills [1998] 4 VR 235 at 241; R v McGaffin [2010] SASCFC 22 at [69].
[15] (1989) 51 SASR 532.
[16] Ibid at 534.
The Magistrate did not overlook the appellant’s youth – he referred to him being a 20 year old at the time of sentencing – but it is not apparent that he regarded this as a mitigatory factor.
Apart from the appellant’s youth, there are some aspects of the appellant’s background, as disclosed in the report of Mr Balfour, which assist in explaining his conduct and which also attract some sympathy. Mr Balfour describes the appellant as “the psychological casualty of a dysfunctional and traumatic childhood”. He has limited cognitive functioning, has a consequential learning disability and is functionally illiterate.
The appellant’s father took no interest in his upbringing and, in fact, the appellant met him for the first time when he was 15 years old. He has not had contact with his father since then. The abandonment by his father has had continuing adverse psychological effects. The appellant also describes being subject to frequent abuse and violence at the hands of his alcoholic stepfather and witnessing, on several occasions, the physical abuse of his mother by that stepfather.
The appellant had limited education, in part because of his cognitive limitations and in part because of his poor behaviour while at school. Mr Balfour considers that the appellant has developed a personality disorder because of his dysfunctional upbringing.
Since leaving school, the appellant has largely been unemployed. However, shortly before being sentenced by the Magistrate he had obtained regular employment and the Magistrate was provided with a reference from that employer. The appellant is now in a stable domestic relationship, although I note that that relationship was current at the time of his offending and did not inhibit it occurring.
The Magistrate did not overlook the contents of Mr Balfour’s report. He said that Mr Balfour provided compelling reasons for a more lenient approach. Further, the conditions of the bond imposed by the Magistrate when suspending the sentence reflected his awareness of the appellant’s cognitive and psychological difficulties. The Magistrate’s apparent starting point of about eight months, which is relatively high, suggests, however, that he did not give full weight to these considerations in fixing the head sentence of six months. Had he done so, the sentence imposed on the appellant is likely to have been lower. If the Magistrate did make allowance for these matters, then it follows that his notional starting point would have been even higher if the appellant had been a mature fully functioning adult with none of the disadvantages in life reported by Mr Balfour. This tends to confirm that the Magistrate’s notional starting point must have been an unreasonably high proportion of the maximum available sentence for the two offences of imprisonment for 12 months. In turn, it confirms that the sentence actually imposed is too high.
In my opinion, when account is taken of the appellant’s youth, the relative proximity of an apparent notional sentence for the offence of 20 July 2012 to the applicable maximum penalty, and to the aspects of the appellant’s background and psycho‑social profile outlined in Mr Balfour’s report, the Magistrate’s starting point (perhaps of eight months or only slightly less) should properly be characterised as manifestly excessive. This means that the sentence of six months after reductions for the pleas of guilty is also manifestly excessive.
Accordingly, the appeal should be allowed and the appellant resentenced.
Resentence
The appellant accepted, appropriately in my opinion, that a sentence of imprisonment was inevitable. The factors bearing on proper sentencing for the offence of driving while disqualified and the contumacious nature of the appellant’s offending indicate that that must be so.
Given the appellant’s youth and the matters mentioned by Mr Balfour, I consider that an appropriate notional starting point for the offence of driving while disqualified committed on 21 May 2012 is imprisonment for five weeks. Like the Magistrate, I consider that the offence committed on 20 July 2012 should be regarded more seriously. I would take a notional starting point of imprisonment for seven weeks for that offence.
The aggregate of these two periods is 12 weeks. I will reduce that to nine weeks on account of the appellant’s pleas of guilty and of his recognition of the inappropriateness of his conduct. That produces a sentence of imprisonment of nine weeks.
Like the Magistrate, I do consider that there is good reason to suspend that sentence and will do so, upon the appellant entering into a bond in the sum of $400 to be of good behaviour for a period of 16 months and to comply with other terms. In fixing that term, I have taken account of the fact that the appellant has already been subject to a bond for more than two months pending this appeal.
Conclusion
In summary, I allow the appeal in respect of the sentence imposed for the offences of driving while disqualified committed on 21 May 2012 and 20 July 2012. I set aside the order of imprisonment and suspension imposed by the Magistrate. In its place, I impose a sentence of imprisonment for nine weeks but direct that that sentence be suspended upon the appellant entering into a bond in the sum of $400 to be of good behaviour for a period of 16 months. It is to be a condition of the bond that the appellant be under the supervision of a Correctional Services Officer and that he obey the directions of that Officer as to appropriate programs, including cognitive behavioural therapy and programs to address his literacy and numeracy difficulties.