Mahon v Commissioner of Police

[2024] SASC 147

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

MAHON v COMMISSIONER OF POLICE

[2024] SASC 147

Reasons for Decision of the Honourable Justice Stanley 

12 December 2024

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA – APPEAL TO SUPREME COURT

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – SENTENCE

This is an appeal against sentence. The appellant pleaded guilty to the offence of driving while unauthorised to do so following a licence disqualification for drug driving contrary to s 74(2ac) of the Motor Vehicles Act 1959 (SA). On 25 October 2023 the appellant was sentenced to a term of imprisonment of two months and three days after the reduction of 30 per cent of a notional sentence of three months for his guilty plea. He was also sentenced for other offending at this time not subject to appeal.

The appellant drove an electric scooter which had been modified.  Its pedals were removed.  As a result of this modification the vehicle fell to be classified as a motorcycle attracting all the standards, regulations and licensing requirements to operate on South Australian roads.

The appellant submitted the sentence handed down by the magistrate was manifestly excessive. He contended that the offending had two features which made it a less serious example of such offending. Namely, the nature of the vehicle used and the belief held by the applicant that he was not committing an offence. The appellant submitted the absence of any reference to these features in the sentencing remarks of the magistrate indicated a failure to consider them.

The respondent submitted inter alia that the appeal ought to be dismissed as it was out of time and the sentence imposed was within the discretionary range available in sentencing this offender for this offence. The respondent contended that the unusual features of the offending were swamped by countervailing factors relating to the seriousness of the offence.

Held:

1.      The failure of the sentencing magistrate to refer to the unusual features of the offending in his      remarks suggests strongly that he failed to consider it. This was a process error.

2.      The circumstances of the subject offending were so unusual as to render it unlikely the      appellant would commit an offence in these circumstances again. Accordingly, the need for     personal deterrence was absent on this occasion. As a result, the sentence imposed was   manifestly excessive. This was an outcome error.

3.      The appellant is granted an extension of time to appeal against the sentence handed down on        25 October 2023 for Count 1 on MCCRM-22-2403.

4.      The appeal is allowed.

5.      The sentence imposed on the appellant on 25 October 2023 is set aside and the appellant is resentenced to time served.

6.      The certificate of record on MCCRM-22-3403 contains a clerical error and is to be corrected        to reflect a sentence of 2 months and 3 days and the imposition of a 1 year disqualification       period for Count 1.

Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1; Motor Vehicles Act 1959 (SA) s 74(2ac), referred to.

House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; Police v Chilton (2014) 120 SASR 32; R v Morse (1979) 23 SASR 98; Police v Cadd (1997) 69 SASR 150; Jones v Police [2020] SASC 188, applied.

Kentwell v The Queen (2014) 252 CLR 601, considered.

MAHON v COMMISSIONER OF POLICE
[2024] SASC 147

Single Judge Appeal

STANLEY J:

1. The appellant pleaded guilty to the offence of driving while unauthorised to do so following a licence disqualification for drug driving contrary to s 74(2ac) of the Motor Vehicles Act 1959 (SA) (Motor Vehicles Act). On 25 October 2023 the appellant was sentenced to a term of imprisonment of two months and three days after the reduction of 30 per cent of a notional sentence of three months for his guilty plea. He was also disqualified from holding a driver’s license for a period of one year to commence upon release from custody. He was also sentenced for other offending at this time not subject to this appeal.

2. The appellant appealed the sentence.  The appeal was instituted out of time. 

3. On 8 May 2024 I heard the appeal.  At the conclusion of the hearing I announced I would grant the extension of time within which to bring the appeal, allow the appeal, correct the lower court Certificate of Record and resentence the appellant to time served.  I indicated that I would publish reasons in due course.  These are those reasons. 

4. There is a single ground of appeal, namely, that the sentence is manifestly excessive.  The appellant complains that the sentencing magistrate made both process errors and an outcome error in fixing the sentence.  He submits that first, the magistrate failed to have regard to the nature of the vehicle used in the offending, and second, the appellant’s subjective belief that no offence was committed by him in riding the scooter on the road. 

5. The respondent submitted the appeal should be dismissed as it was out of time and the sentence imposed was within the discretionary range available in sentencing this offender for this offence.

6. The circumstances of the offending were somewhat unusual. 

7. On 1 May 2022 the appellant drove an electric scooter on Payneham Road.  He was unauthorised to do so as a result of a licence disqualification for drug driving.  The vehicle once had pedals which had been removed.  The removal of those pedals meant the vehicle fell to be classified as a motorcycle attracting all the standards, regulations and licencing requirements to operate on South Australian roads.  At the time of driving the appellant was under the influence of drugs, namely, cannabis and methylamphetamine.  He was carrying a passenger.

8. It was submitted to the magistrate that the appellant should be sentenced on the basis that he did not understand that he was legally required to be licenced in order to drive the scooter on a public road.  In his sentencing remarks the magistrate made no reference to this submission.  The only matter the magistrate referred to in sentencing was that having taken into account the appellant’s prior driving history, a sentence of imprisonment was appropriate.  On the appeal counsel for the appellant conceded that he had an appalling driving record having been sentenced on some 32 occasions for driving-related offending.  He had 50 prior convictions for offences involving motor vehicles, 17 of which related to driving while disqualified or unauthorised or unlicenced.  A month prior to the offending subject of this appeal the appellant had been stopped by police when driving a motor vehicle while under disqualification or suspension.  This concession was appropriately made.

   Principles on appeal

9. The appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and is in the nature of a rehearing pursuant to r 191.1 of the Joint Criminal Rules 2022 (SA).  In order to interfere with the exercise of a sentencing discretion there must be a demonstrated error of the kind described in House v The King.[1]The approach to be adopted was explained in Wittwer v Police[2] by White J as follows:

   The imposition of a sentence involves an exercise of judicial discretion.  This Court interferes with the exercise of that discretion only when it is satisfied that that sentencing magistrate has acted upon some wrong principle, or if it has allowed irrelevant considerations to influence, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that it must have been a failure to exercise the discretion properly.

   [1] (1936) 55 CLR 499 at 505.

   [2] [2004] SASC 226 at [16].

10. In Police v Chilton,[3] Kourakis CJ observed that the sentence imposed by a magistrate can only be set aside for error in accordance with House v The King, remarking that:[4]

    The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence.  The mischiefs can be avoided by fidelity to, and rigorous application of, the prescripts in House v The King. 

    [3] [2014] SASFC 76, (2014) 120 SASR 32.

    [4] [2014] SASFC 76 at [19], (2014) 120 SASR 32 at 37-38.

    Manifest excess

11. To establish that the sentence imposed was manifestly excessive, the appellant must establish that the sentence was unreasonable or plainly unjust such that it can be inferred that the outcome has been attended by error.[5]  That the appellate court would have imposed a different sentence is insufficient to disturb the sentence on appeal.  Rather, the sentence must be outside the permissible range of sentences for the offender and the offence.[6]  In determining whether the sentence imposed was manifestly excessive, it is necessary to consider whether the sentence was plainly unreasonable or unjust in all the circumstances such that it fell outside the sentencing discretion available to the magistrate.

    [5]     Kentwell v The Queen (2014) 252 CLR 601 at [35].

    [6]     Kentwell v The Queen (2014) 252 CLR 601 at [35].

12. The following are factors to be considered in determining whether the sentence imposed was manifestly excessive:

    (i)the maximum sentence prescribed by law for the offence;

    (ii)the standards of sentence customarily observed for offences of the kind in question;

    (iii)the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and

    (iv)the personal circumstances of the offender.[7]

    [7]     R v Morse (1979) 23 SASR 98 at 99.

    Submissions

13. The respondent submits it is apparent that in sentencing the magistrate focussed on the appellant’s appalling driving record. The respondent submits that the magistrate must have considered that the threshold for the imposition of imprisonment in accordance with s 10(2) of the Sentencing Act 2017 (SA) was met; any sentence imposed had to reflect the need for personal deterrence; and the appellant was not a good candidate for leniency. Accordingly, it is apparent that the magistrate must have found that either or both of the requirements of s 10(2) were met, namely, the seriousness of the offence was such that imprisonment was the only penalty justified, and/or imprisonment was required for the purpose of protecting the safety of the community.

14. There is no specific sentencing tariff for an offence under s 74(2ac) of the Motor Vehicles Act. The maximum penalty is a $5000 fine or 12 months imprisonment. It is well established that the appropriate sentencing standard for the offence of driving while under disqualification contrary to s 91 of the Motor Vehicles Act is that of imprisonment.[8]  The imposition of this standard recognises the cost to the community of traffic offences and the mechanisms of licence disqualification or suspension to address those offences.  It has been repeatedly held that such mechanisms are rendered ineffective if they are generally disregarded.  Relevant factors which justify the imposition of a term of imprisonment include aspects of deterrence, disobedience to an order, the importance of ensuring compliance with a widely-used sanction and the difficulty of detecting offences of this nature.[9]  As Kourakis CJ said in Police v Chilton:[10]

    … so great is the need to ensure that disqualification orders operate as an effective sanction in ensuring compliance with the rules of the road that imprisonment will, generally, be resorted to in the case of offenders who repeatedly flout judicial or administrative orders of disqualification.

    [8]     Police v Chilton [2014] SASFC 76 at 21, (2014) 120 SASR 32 at 38 .

    [9]     Police v Cadd (1997) 69 SASR 150 at 173.

    [10]   Police v Chilton [2014] SASFC 76 at 21, (2014) 120 SASR 32 at 38.

15. The respondent submitted that several factors identified in the case law on driving disqualified remain relevant to an offence under s 74(2ac), such as the cost to the community of traffic offences, the difficulty of detecting offences of this nature, and the interest in ensuring compliance with licencing regimes.

16. The respondent’s riposte to the appellant’s submission was that the unusual features of this offending were swamped by countervailing factors relevant to the seriousness of the offence, including that the appellant was driving a scooter on a main road where it could be expected that other users would be present, had both methylamphetamine and THC in his system and had a passenger on board.  In driving the scooter on a main road the appellant put himself, his passenger and potentially other road users at risk.  Further, the respondent submitted the offending conduct occurred against a background of the appellant’s significant and extensive history of previous driving offending.  This factor was given significant weight by the magistrate in formulating sentence including the need for deterrence.  The respondent submitted that it was within the magistrate’s discretion to impose a sentence that had a strong element of personal deterrence. 

17. As this Court has previously observed, where an offender has a poor prior criminal record or has previously committed offences of a similar nature, the offence will be rendered more serious than may otherwise be the case.  A penalty that is severe but still proportional can be expected not because the previous offending has been revisited but because there is less scope for leniency.[11] 

    [11]   Jones v Police [2020] SASC 188 at [31]-[32].

18. Finally, the respondent submitted that even if the Court found an error in the sentence imposed by the magistrate it may refrain from interfering with the sentence if not of the view that another sentence should be passed.[12] 

    [12]   Kentwell v The Queen [2014] 252 CLR 601 at [43].

    Consideration

19. It can be accepted that generally terms of immediate imprisonment will be imposed for contraventions of s 74(2ac). It can also be accepted that generally the imposition of an immediate term of imprisonment for repeated offending of the kind committed by this appellant would be expected. His criminal record generally would justify a sentence which emphasised the need for personal deterrence. However, this offending did not match the usual circumstances of such offending. The submission made before the magistrate that the appellant was unaware that he required a driver’s licence in order to ride the scooter on a public road because the pedals had been removed seems to me to be entirely plausible. This was such an unusual feature of the offending, it took it out of the generality of such offences, that the failure of the magistrate to mention it in his sentencing remarks suggests strongly that he failed to consider it. This was a process error. The circumstances of the subject offending were so unusual as to render it unlikely that the appellant would commit an offence in these circumstances again. Accordingly, the general need for personal deterrence was absent on this occasion. As a result, the sentence imposed was manifestly excessive. This was an outcome error.

20. Having found both a process error and an outcome error had occurred, it was necessary to resentence the appellant.  This was not the kind of situation contemplated in Kentwell v The Queen[13] where the appeal court would decline to intervene notwithstanding the finding of error in sentencing by the court below. 

    [13] Kentwell v The Queen (2014) 252 CLR 601.

21. In all the circumstances I considered that the requirements of an appropriate sentence for this offender, and in particular this offending, had been met by the time the appellant had already served.  This was particularly so given that I allowed the appeal on 8 May 2024 and the appellant had been in custody in respect of this and other offending relating to driving disqualified since 25 October 2023. 

22. In the circumstances the respondent accepted that if the appeal was to be allowed an extension of time should be granted. 

23. The parties also agreed that the Certificate of Record in the Magistrates Court should be corrected.  The Certificate of Record on MCCRM-22-003403 recorded the terms of imprisonment on Count 1 as one month and 24 days imprisonment but the transcript of remarks set out that the sentence imposed comprised a term of imprisonment of two months and three days and a one-year disqualification from holding a driver’s licence.  The overall head sentence on the court record was correct but the penalty recorded for this charge was incorrect.  I directed that this error be corrected.