Letham v Police - [2009] SASC 321

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
LETHAM v POLICE
[2009] SASC 321
Judgment of The Honourable Chief Justice Doyle (ex tempore)
7 October 2009
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appellant pleaded guilty to offences of failing to answer questions of a police officer and failing to comply with a term of a bail agreement – appellant had previously been sentenced to six months' imprisonment, suspended on condition that he enter into a bond to be of good behaviour – appellant admitted that the offences constituted breaches of the bond – Magistrate sentenced appellant to imprisonment for 35 days in relation to the offence of failing to answer questions of the police, and 21 days in respect of the offence of failing to comply with the terms of a bail agreement – Magistrate ordered that those sentences take effect cumulatively – Magistrate declined to suspend sentences of imprisonment he imposed – Magistrate revoked bond and declined to reduce the period of imprisonment which came into effect – appellant liable to serve a term of imprisonment of six months 56 days – appeal against orders of the Magistrate.
HELD: while taken in isolation, the orders of the Magistrate and the sentences that he imposed were appropriate, taken as a whole, the overall result was excessive – good reason existed to suspend the sentences that the Magistrate imposed – appeal allowed and sentences imposed by Magistrate suspended – order of Magistrate revoking the bond, and declining to reduce the length of the suspended sentence not interfered with.
Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 38, s 38(2a), s 58; Motor Vehicles Act 1959 (SA) s 91(5); Summary Offences Act 1953 (SA) s 74AB(2), referred to.
Police v Maraldo [2005] SASC 479, considered.

LETHAM v POLICE
[2009] SASC 321
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Mr Letham was charged on a complaint filed in the Magistrates Court with one count of refusing to answer questions put to him by a police officer for the purpose of identifying the driver of a car, an offence against s 74AB(2) of the Summary Offences Act 1953 (SA). The maximum penalty for an offence against this section is imprisonment for three months or a fine of $1250. The complaint also charged Mr Letham with one count of failing to comply with a bail agreement to which he was a party, an offence against s 17 of the Bail Act 1985 (SA). The maximum penalty for an offence against this section is imprisonment for two years or a fine of $10,000.
On 7 January 2008 Mr Letham had been sentenced to six months’ imprisonment. That sentence of imprisonment had been suspended upon Mr Letham entering into a bond to be of good behaviour for a period of three years. A member of the Police Force filed an application alleging that as a result of the offending alleged in the complaint just referred to, Mr Letham had failed to be of good behaviour in accordance with the conditions of the bond.
Mr Letham pleaded guilty to the two offences charged on the complaint and admitted that those offences amounted to breaches of the bond. In respect of the first offence, that of failing to answer questions put to him by a police officer, the Magistrate sentenced Mr Letham to 35 days’ imprisonment. The Magistrate imposed a sentence of 21 days’ imprisonment in respect of the second offence. The Magistrate ordered that the sentences operate cumulatively. The Magistrate declined to suspend the sentences of imprisonment that he had imposed.
As to the application in relation to the suspended sentence bond, the Magistrate declined to excuse the breach. He revoked the bond and ordered payment of the amount of the bond. The Magistrate declined to reduce the duration of the suspended sentence. The sentence of imprisonment that had been suspended came into effect. The Magistrate ordered that the sentence take effect cumulatively upon the sentences of imprisonment imposed in relation to the offences charged on the complaint. The end result was a sentence of imprisonment for six months 56 days.
Mr Letham appeals against the orders of the Magistrate. The notice of appeal complains that the Magistrate erred in bringing into effect the whole of the suspended sentence the subject of the bond. There is also a complaint that the Magistrate erred in ordering that the sentences of imprisonment that he imposed operate cumulatively. It is also asserted that the Magistrate failed to have regard to the principle of totality in sentencing Mr Letham.
Background
On 8 August 2009 police received a complaint about the manner in which a sedan was being driven on the Dukes Highway near Bordertown. A police officer in a patrol car saw the sedan shortly after receiving the complaint. The driver of the sedan was wearing a light coloured shirt. The car was travelling towards the police officer. The police officer turned around so that the patrol car was travelling in the same direction as the sedan. He activated his emergency lights. The driver of the sedan accelerated quickly. The police officer followed the sedan, recording the sedan travelling at speeds of up to 160 km/h in an area in which the speed limit is 80 km/h and at speeds of up to 190 km/h in an area in which the speed limit is 110 km/h. The police officer stopped his pursuit of the car when it became apparent that the continuation of the pursuit would give rise to a significant risk of injury or death.
Another police officer in a patrol car on the Dukes Highway near Keith, whom I understand had been informed of the dangerous driving of the sedan, then saw the sedan travelling towards his car. He also turned and gave chase, activating his emergency lights. The driver of the sedan performed another U‑turn and accelerated quickly. The sedan’s rear wheels lost traction and the sedan veered into the wrong lane of the Dukes Highway. Fortunately there were no oncoming vehicles. The sedan left the road and came to rest on a verge next to the Dukes Highway.
The officer approached the sedan. There were two people in the vehicle, neither of whom was seated in the driver’s seat. The officer did not see anyone leave the sedan. One of the passengers, who was wearing a white shirt, was sitting in the front passenger seat of the car. The other, Mr Letham, was sitting in the rear passenger seat. Mr Letham was wearing a black shirt. The police officer questioned Mr Letham as to the identity of the driver of the car at the relevant time. Mr Letham refused to tell the officer the name of the driver. The officer who had first pursued the sedan soon arrived at the scene. Mr Letham was again asked by the police about the identity of the driver of the sedan. Again, he refused to tell police who was driving the car. That is the conduct the subject of the first count on the complaint.
The Magistrate said that offences against s 74AB(2) are relatively common. He considered that the offence to which Mr Letham had pleaded guilty was more serious than a momentary failure to answer truthfully questions put by police. The Magistrate considered that the seriousness of the driving offence which the police were investigating “potentiated” the seriousness of the charge to which Mr Letham had pleaded guilty. He considered that Mr Letham knew or must have known the identity of the driver of the car.
Having regard to those matters, the Magistrate considered that the offence was a serious one of its kind, though not in the most serious category. The Magistrate went on to refer to Mr Letham’s prior history of offending that the Magistrate said was “particularly serious as to bad driving”.
The Magistrate referred to a submission on behalf of Mr Letham that any sentence in respect of the offence should be reduced to reflect Mr Letham’s plea of guilty. The Magistrate said that the usual significance of a plea of guilty was not present in Mr Letham’s case as Mr Letham had shown no remorse. He also said that the utilitarian aspect of the guilty plea was not of great significance, given the fact that the prosecution case would be a very strong one. The Magistrate said that the guilty plea was almost inevitable. As such, he did not propose to make a significant reduction on account of the plea but he indicated that he would make some allowance.
At the time of this incident, Mr Letham was also subject to a bail agreement. It was a term of the bail agreement that he not leave the State. The second charge on the complaint was that he failed to comply with the terms of the bail agreement on 8 August 2009 when he was apprehended near Keith. The previous day, or in the early hours of that morning, Mr Letham had gone to Bendigo to participate in a course for the purpose of gaining accreditation in relation to high risk scaffolding work. That accreditation would enhance Mr Letham’s earning capacity. It was a half-day course. Mr Letham was returning from the course when he was apprehended. He had not sought permission from a bail authority to leave the State. The Magistrate accepted that Mr Letham did not breach the bail agreement in an attempt to avoid having to attend court. Mr Letham had left the State to obtain further occupational qualifications. However, the Magistrate noted that although Mr Letham had learned about the course very shortly before leaving the State, it was still open to Mr Letham to apply to have the bail agreement varied to permit him to leave. His failure to do so indicated an attitude of defiance or disregard of the bail agreement. The Magistrate also referred to Mr Letham’s previous convictions for failing to comply with the terms of a bail agreement. I agree that these were relevant matters. The Magistrate said that the penalty to be imposed should reflect both general and personal deterrence.
The Magistrate outlined Mr Letham’s record. It suffices to say he has a fairly extensive history of traffic offences, although a number of them are relatively minor. A lot of that offending has been dealt with quite mercifully. In particular, on 7 January 2008, as I have already mentioned, Mr Letham was sentenced to imprisonment for six months, suspended on him entering into a bond to be of good behaviour. That sentence was imposed in relation to two counts of driving a vehicle while disqualified from holding a driver’s licence, an offence against s 91(5) of the Motor Vehicles Act 1959 (SA).
It is worth noting on 8 October 2007 Mr Letham was convicted of an offence of failing to comply with a term of a bail agreement. That offence was dealt with by way of a fine. As well, on 24 August 2004 Mr Letham was convicted of driving a vehicle while disqualified from holding a driver’s licence. A sentence of one month’s imprisonment was imposed in relation to this offence. That sentence of imprisonment was suspended. As a result of that conviction the offences the subject of the bond became subsequent offences against s 91(5) of the Motor Vehicles Act. Finally, I mention that in May 2004 Mr Letham was fined for an offence of failing to comply with a bail agreement.
The Magistrate took into account Mr Letham’s personal circumstances. Mr Letham was 24 years of age and had a four year old child who lives with his former partner. The Magistrate accepted that Mr Letham had a responsibility for the financial maintenance of this child, which responsibility Mr Letham was meeting and wanted to continue to meet. Mr Letham was employed as a scaffolder. He obtained further qualifications as a result of the trip to Victoria. The Magistrate noted that Mr Letham had good earning capacity and a good employment record. The Magistrate rejected a submission that Mr Letham was already on the path to rehabilitation. He referred to the offences for which Mr Letham was being sentenced and to charges against Mr Letham which related to incidents which had occurred since January 2008 when Mr Letham had last been before the courts. The Magistrate said that while he did not take these charges into account in terms of penalty, the fact that they existed put a cloud over the claim that Mr Letham was already on the path to rehabilitation.
The Magistrate considered that for the offence against s 74AB(2), a starting point of half the maximum period was appropriate, that is, approximately six weeks. He reduced that sentence by one week to take account of the plea of guilty, and imposed a sentence of imprisonment for 35 days.
In relation to the offence of failing to comply with the term of the bail agreement, the Magistrate adopted a starting point of one month’s imprisonment. After taking into account Mr Letham’s plea of guilty, he imposed a sentence of imprisonment for 21 days. The Magistrate ordered that the sentences take effect cumulatively.
He turned to the question of suspension. He repeated that he had rejected the submission that Mr Letham was on a path to rehabilitation. He accepted, however, that the relatively short period of lack of proved offending indicated some, in his words, “modest mediation of your behaviour”. He said that the loss of Mr Letham’s ability to provide financial support to his child would be short‑lived. He noted that by reason of Mr Letham’s employment in the country, the contact that he had with his child was intermittent. He considered that these matters did not give rise to a good reason to suspend any sentence of imprisonment for the purposes of s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”).
The Magistrate then dealt with Mr Letham’s breach of bond. The Magistrate first considered whether there existed proper grounds to excuse the breach. He said the question he had to answer was whether, having regard to the nature of the offences which gave rise to the breach, revoking the bond would give rise to a disproportionate outcome. The personal circumstances of Mr Letham played no part in determining whether to excuse the breach. The Magistrate considered that, while factually the breaching offences and the offences in relation to which Mr Letham had entered into the bond were distinct, both sets of offences had at their heart an element of defiance or disregard of authority and defiance or disregard of the law.
Having regard to this aspect of the two sets of offending and the seriousness with which the Magistrate viewed the breaching offences, the Magistrate did not consider that the breach of the bond should be excused. He revoked the bond. He ordered that Mr Letham pay the amount of the bond and brought the sentence of imprisonment of six months into effect.
It was implicit in all of this that the Magistrate took the view that the offences could not be treated as trivial. I agree with him in that respect, and that was not challenged on appeal.
Counsel for Mr Letham submitted to the Magistrate that special circumstances existed such that the Magistrate should reduce the sentence of imprisonment the subject of the bond. The Magistrate accepted that Mr Letham’s personal circumstances were relevant to this. The Magistrate asked himself whether Mr Letham’s personal circumstances might have justified a reduction in the sentence that was imposed by the magistrate who originally imposed it. The Magistrate noted that the offences the subject of the bond were subsequent offences against s 91 of the Motor Vehicles Act. It was submitted that Mr Letham’s personal circumstances amounted to special circumstances warranting a reduction in the sentence. I have set those circumstances out above. The Magistrate did not agree and he declined to reduce the sentence the subject of the bond. The end result was that the sentence of six months’ imprisonment took effect cumulatively upon the sentences that the Magistrate had imposed.
Consideration
The case is a difficult one and I am indebted to counsel for their submissions. There are points to be made in favour of Mr Letham. But he does have a relatively poor record, and the Magistrate rightly treated the offending on the Dukes Highway as relatively serious. The Magistrate gave the case careful consideration. His sentencing remarks are very detailed and thorough.
I do not accept the submission that the sentence for failing to answer questions of the police is excessive. It was probably a pointless act of defiance but it was nevertheless an act of defiance.
The sentence for breaching the bail agreement is, I consider, rather heavy. I am prepared to accept the submission that the opportunity to attend the course at Bendigo arose at such short notice that it was probably not practical to obtain permission to attend. However, I cannot say that the sentence is excessive. The fact is, in my opinion, that Mr Letham must have understood the situation, knew that he had to make a choice then and there whether to breach the bail agreement and go or to comply with the bail agreement and not pursue the chance to improve his employment prospects. One can understand him taking the view he did. Nevertheless, he must have known he was in breach of his bail agreement.
I do not agree that the Magistrate failed to have due regard to Mr Letham’s personal circumstances. I consider that the Magistrate’s reasons are not open to criticism in that respect. I agree with and share his reservations about Mr Letham being on the path to reform. To say that is certainly not to reject Mr Letham’s claim for reform. It is merely to say that so far one could not confidently say he has in fact learnt his lesson and changed his ways. I am unable to say that the Magistrate erred in refusing to suspend the earlier sentence. Nor can I say he erred in failing to excuse the breach of the bond or in failing to reduce the term of the suspended sentence. The circumstances were capable of supporting his conclusion. Nevertheless, what I said so far refers to the sentences taken individually.
When I stand back and review the situation as a whole, I consider that the overall result is excessive. There are indications of reform on the part of Mr Letham. This will be encouraged by doing what can be done to keep him in employment, while doing what the court must do to uphold its orders. Mr Letham has to understand court orders must be observed, and that a breach of an order will have adverse consequences, even though one might say it was a difficult decision for Mr Letham to make. To allow Mr Letham to escape imprisonment altogether would undermine these important considerations.
In my opinion, there was good reason to suspend the sentences that the Magistrate imposed, that is, the sentences imposed for the offences charged on the complaint. That is as far as it is proper to go. That result can be achieved by using s 38(2a) of the Act: Police v Maraldo [2005] SASC 479. I differ from the Magistrate in this respect with some hesitation. I agree with his general approach, taking each component of the sentence in isolation as I have said. But as I have indicated, I am persuaded that taken as a whole, the punishment is excessive and that Mr Letham should be given some encouragement to reform. To implement this decision I have to resentence Mr Letham for the offences that came before the Magistrate. There is no need for me to interfere with the order that the Magistrate made under s 58 of the Act revoking the suspension of the suspended sentence and ordering that it be carried into effect. In my opinion that order should not be disturbed and will stand.
Accordingly, I order as follows:
1.That the appeal be allowed in part.
2.That the sentence imposed on file MCMTG-09-1569 be set aside and the following sentence be substituted.
3.That for the offence against s 74AB(2)(a) of the Summary Offences Act, Mr Letham be sentenced to imprisonment for 35 days, and for the offence against s 17 of the Bail Act, he be sentenced to imprisonment for 21 days cumulative upon the sentence of 35 days’ imprisonment.
4.Pursuant to s 38(2a) of the Sentencing Act I direct that Mr Letham serve a period of six months’ imprisonment being the sentence ordered to be carried into effect on the file MCMTG-09-1585; that sentence commencing on 8 August 2009, and that the balance of the combined sentence, namely 56 days of imprisonment, be suspended on condition that Mr Letham enter into a bond in the sum of $500 to be of good behaviour for 56 days, the balance of the sentence that I have suspended.
5.That the appeal against sentence be otherwise dismissed.
6.That there be no order as to the costs of the appeal.