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…

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 Letham v Police

Details

AGLC: Letham v Police [2009] SASC 321
Case: [2009] SASC 321
Decision Date: 7 October 2009

CaseChat Overview and Summary

Mr Letham appealed against the orders of the Magistrate in the Magistrates' Court of South Australia, which sentenced him to imprisonment for multiple offences, including failing to answer questions of a police officer and failing to comply with a bail agreement. The central issues before the court were whether the Magistrate's imposition of cumulative sentences and refusal to suspend the previously imposed suspended sentence were appropriate and whether the principle of totality in sentencing had been properly considered. The court had to determine if the Magistrate's decisions, while individually reasonable, collectively constituted an excessive sentence, and if there were grounds for suspending the sentences.

The court found that while each of the Magistrate's decisions was individually reasonable, the cumulative effect of the sentences was excessive. It held that there were substantial reasons to suspend the sentences imposed by the Magistrate, despite the appellant's history of offending. The court considered the principle of totality in sentencing, which aims to avoid disproportionate sentences when multiple offences are considered together. It concluded that the Magistrate's refusal to suspend the earlier sentence, excuse the breach of the bond, or reduce the term of the suspended sentence was not erroneous given the circumstances, but the overall result was excessive. The court allowed the appeal and suspended the sentences imposed by the Magistrate while affirming the order revoking the bond and declining to reduce the length of the suspended sentence.

The court's final order was that the sentences imposed by the Magistrate be suspended, thereby preventing the appellant from having to serve the full term of imprisonment. The order revoking the bond and declining to reduce the length of the suspended sentence was left in place. This decision ensures that the appellant's sentence is proportionate and takes into account the principle of totality, while maintaining the integrity of the original sentencing decisions regarding the breach of the bond.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ

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Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ

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.