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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KOHLER v Police

Details

AGLC: KOHLER v Police [2013] SASC 69
Case: [2013] SASC 69
Decision Date: 20 May 2013

CaseChat Overview and Summary

In the matter of Kohler v Police, the appellant, Kohler, appealed against the sentence imposed by the Magistrate for driving while disqualified. Kohler had previously been convicted of two separate driving offences and was subject to a disqualification period from holding or obtaining a driver's licence. Despite this, Kohler continued to drive on multiple occasions, resulting in further charges and the subsequent appeal against the sentence of six months imprisonment. The appeal was heard by the Supreme Court of South Australia. The primary legal issue before the court was whether the sentence of six months was manifestly excessive, taking into account Kohler's age, background, psycho-social profile, and the proximity of the notional sentence to the applicable maximum. The court considered the nature of the offences, the appellant's youth, and the fact that the Magistrate did not specify the amount of the reductions made for the guilty pleas. The court found that the sentence imposed was manifestly excessive, and the appeal was allowed. The court ordered the appellant be resentenced.

The court held that while it is desirable for the amount of the reductions to be stated, the omission to do so does not amount to an error. However, the court found that the sentence imposed was manifestly excessive, considering the appellant's youth, background, and psycho-social profile, as well as the proximity of the Magistrate's apparent notional sentence for the second offence to the applicable maximum. The court allowed the appeal and ordered the appellant to be resentenced.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

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.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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.