Measures v The Queen - [2021] SASCA 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MEASURES v THE QUEEN
[2021] SASCA 82
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Livesey and the Honourable Justice Bleby)
13 August 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
This is an appeal against a sentence imposed for a third offence of driving whilst disqualified. The appellant was sentenced to a term of 12 months' imprisonment, reduced by 30 per cent to eight months and one week on account of the appellant’s guilty plea. The appellant appeals against that sentence on the basis that it is manifestly excessive. The Director of Public Prosecutions concedes that the sentence is manifestly excessive.
Held per the Court, allowing the appeal:
1.Whilst a concession by the Director that a sentence is manifestly excessive does not bind the Court, it is a matter deserving of some weight when determining the appeal.
2.The appellant conceded her conduct was contumacious: she had no compelling reason to drive. Her appalling driving record and consistent disregard of her legal obligations demonstrated that there were no grounds for leniency. Nonetheless, a starting point of half of the maximum available penalty was manifestly excessive.
3.The appellant is resentenced to a term of 10 weeks imprisonment which, after a 30 per cent reduction for the guilty plea, will be a sentence of seven weeks imprisonment.

Sentencing Act 2017 (SA) s 120, referred to.
Police v Cadd (1997) 69 SASR 150; Police v Chilton [2014] SASCFC 76; Police v Nissen [2014] SASCFC 77; R v Darling (2017) SASCFC 46; Sabato v The Queen [2021] SASCA 65, discussed.

MEASURES v THE QUEEN
[2021] SASCA 82
Court of Appeal
THE COURT
Introduction

This is an appeal against the sentence imposed for driving whilst disqualified on the sole ground that it was manifestly excessive.
The Director of Public Prosecutions concedes that the sentence is manifestly excessive. Whilst that concession does not bind this Court, it is a matter deserving of some weight when determining the appeal.
For the reasons that follow, we find that the sentence imposed was manifestly excessive, that the sentence should be quashed and the appellant resentenced as follows:
1.The sentence imposed on 4 June 2021 for the offence of driving whilst disqualified (count 1 on the Information) is set aside and quashed.
2.The appellant is resentenced for the offence of driving whilst disqualified to a period of seven weeks imprisonment. This reflects a reduction of 30 per cent from a starting point of 10 weeks imprisonment, on account of the appellant’s plea of guilty.
3.All other orders imposed by the sentencing Judge on 4 June 2021 are confirmed, with the exception of the total sentence of imprisonment to be served, together with the non-parole period to be fixed.
4.The total sentence of imprisonment is one year, five months and 16 days. We fix a non-parole period of three months.
5.The new head sentence and non-parole period are backdated to commence on 22 March 2021.
The effect of this last-mentioned order is that the appellant is now eligible to apply for release on parole.
The circumstances of the offending
On 4 June 2021, the appellant was sentenced for the following matters:
1.The breach of a suspended sentence bond, which had been entered into on 4 September 2018, for which she was sentenced to imprisonment for 15 months and 27 days;
2.An offence committed on 8 November 2019 for a count of driving a motor vehicle with methylamphetamine in the blood, for which the maximum penalty was three years licence disqualification and a fine of up to $2,500;
3.Offences committed on 6 March 2020, being one count of drive disqualified, one count of driving an unregistered motor vehicle on a road, one count of driving an uninsured motor vehicle on a road and one count of driving with methylamphetamine in the blood. The maximum penalties for these offences are, in relation to drive disqualified, a maximum of two years imprisonment (as it was a subsequent offence); driving an unregistered motor vehicle, a fine of up to $7,500; driving uninsured, a fine of up to $10,000; and for driving with methylamphetamine in the blood, a three-year licence disqualification, together with a fine of up to $2,500.
The sentencing Judge took the view that the appellant would be unable to meet any fine so, pursuant to s 120 of the Sentencing Act 2017 (SA), no fines were imposed. The offences concerning driving with methylamphetamine in the blood was dealt with by way of conviction and licence disqualifications for three years to “commence together” upon the appellant’s release from custody.
For the offence of driving whilst disqualified, the sentencing Judge imposed a sentence of imprisonment of 12 months, reduced by 30 per cent for the plea of guilty, to eight months and one week, which was ordered to be served cumulatively on the estreated sentence. In the result, the appellant was subjected to a head sentence of one year, 11 months and 28 days, with a non-parole period of 11 months fixed.
This offence arose from a random roadside breath test in which the appellant returned a positive test for methylamphetamine. Police checks then disclosed the appellant’s disqualification, licence expiry and that her vehicle was both unregistered and uninsured. Ultimately, despite initial denials, the appellant admitted that her offending was contumacious.
The circumstances of the offender
The appellant had been dealt with for driving whilst disqualified on two prior occasions, on 16 September 2015 and 5 December 2019. She was fined on both occasions.
After the subject offending on 6 March 2020, the appellant was again detected driving whilst disqualified on 25 November 2020. For this, the appellant was sentenced to a period of home detention for one month and 13 days.
The appellant is now 37 years of age. She had a reasonably happy upbringing and supportive parents, but an unhappy first marriage during which she “drifted into drug use”. Her next relationship was also unhappy and she has continued to struggle with addiction to illicit drugs. She has a son and plans for the future, including hopes for future study.
On any view, the appellant’s driving history is, as the sentencing Judge recognised, appalling. She has:
… been offered a number of chances by way of bonds that appear to have no deterring effect on her behaviour and drug use …
After being placed on the bond in September 2018, the offender had a period with no offending, that lasted until April 2019. In the period between 25 April 2019 and 6 March 2020, the offender committed and was subsequently charged with a further 13 offences. She was also further charged with breaching a bond by failing to comply with her supervision requirements for the period lasting between 22 August and 8 November 2019.
The sentencing Judge also noted that the appellant had already been sentenced in the Magistrates Court for the majority of the “breaching offences”.
The appellant’s disregard for disqualification and other orders made by the courts demonstrates a cavalier approach to her legal obligations.
In consequence, both personal and general deterrence were important factors in the sentence to be imposed. Likewise, the appellant’s poor performance on bonds, despite considerable leniency from time to time, together with her fourth offence of driving whilst disqualified after the subject offending, strongly suggest that the appellant’s rehabilitation prospects are poor.
Nonetheless, a review of the relevant authorities demonstrates that, with respect, the sentence of 12 months was manifestly excessive.
The authorities concerning drive whilst disqualified
In Police v Chilton[1] and Police v Nissen,[2] the Full Court reviewed the guidance given by the bench of five Judges in Police v Cadd when sentencing for driving whilst disqualified.[3]
[1]     Police v Chilton (2014) 120 SASR 32.
[2]     Police v Nissen (2014) 120 SASR 50.
[3]     Police v Cadd (1997) 69 SASR 150.
It will be recalled that in Police v Cadd Doyle CJ explained that it was “not possible to give precise guidance” on questions such as when imprisonment was appropriate, the length of the term of imprisonment, or whether the term of imprisonment should be suspended.[4] Nonetheless, in the ordinary case of contumacious driving whilst disqualified, a sentence of imprisonment was said to be appropriate.
[4] Police v Cadd (1997) 69 SASR 150, 172 (Doyle CJ).
In Police v Cadd, there were a number of prosecution appeals before the Court. The sentences ranged from seven days (which was said to be inadequate for a subsequent offence) to a sentence of six weeks which seemed, at least to Doyle CJ, to be “too heavy” and the decision to suspend did “not appear to be warranted”.[5]
[5] Police v Cadd (1997) 69 SASR 150, 170 (Doyle CJ).
In Police v Chilton, the offender had two prior convictions for driving whilst disqualified. His previous offences had been dealt with by way of suspended or partially suspended sentences. A sentence of imprisonment of six weeks as imposed by a Magistrate was reinstated.[6]
[6] Police v Chilton (2014) 120 SASR 32 (Kourakis CJ, with whom David J agreed, Gray J dissenting).
In Police v Nissen, the offender had three prior convictions for driving whilst disqualified and he fell to be sentenced for his fourth and fifth offences. The previous offending had been dealt with by way of a fine followed by two suspended sentences. The fourth offence of driving whilst disqualified was committed whilst driving in a manner dangerous involving a police pursuit. The fifth offence was committed together with an offence of breaching bail. The Full Court overturned a 12-month supervised bond which had been imposed for the fourth and fifth offences (28 days having been spent in custody) and imposed a “moderate” sentence of six weeks imprisonment for the fourth offence and 12 weeks for the fifth offence.[7]
[7] Police v Nissen (2014) 120 SASR 50, [34]-[35] (Kourakis CJ with whom David J agreed, Gray J dissenting).
In R v Darling, the Court of Criminal Appeal upheld a sentence of eight months’ imprisonment (reduced from one year) for driving whilst disqualified in conjunction with a serious firearms offence. This was the offender’s seventh conviction for driving whilst disqualified, two of which had been connected to offences of driving dangerously to escape police pursuit. The two most recent prior offences had resulted in imprisonment for seven months (together with other offences) and six weeks, respectively. Whilst one or more members of the Court might have imposed a lesser sentence, the sentence was found not to be outside the ambit of the sentencing Judge’s discretion given the “appalling driving record [showing] a high degree of contempt for the law”.[8]
[8] R v Darling [2017] SASCFC 46, [28], [35] (Peek J, with whom Blue and Doyle JJ agreed).
In Sabato v The Queen, this Court found that sentences of six months and eight months, respectively, for driving whilst suspended were manifestly excessive. Whilst it is a little unclear, it would appear that the offender had a minimum of six prior offences before the offences the subject of sentence.[9] On resentence, the Court adopted starting points of two months and three months for the 8 April 2020 and 8 June 2020 offences, respectively.[10]
[9] Sabato v The Queen [2021] SASCA 65, [111] (Doyle JA, with whom Kelly P and Bleby JA agreed).
[10] Sabato v The Queen [2021] SASCA 65, [148], [152] (Doyle JA, with whom Kelly P and Bleby JA agreed).
It may readily be accepted that general deterrence is an important sentencing consideration when addressing offences of driving whilst disqualified.[11] It follows that, in most cases, absent a compelling reason for driving, the offending will usually be regarded as contumacious. That is why it is often appropriate, even with a first offender, to consider a sentence of imprisonment. Whether that sentence should be suspended or ordered to be served on home detention will depend upon the particular circumstances of any case.
[11] Police v Nissen (2014) 120 SASR 50, [26]-[30], (Kourakis CJ).
Where there are repeated offences, disclosing a persistent disregard for the law, offenders may readily expect sentences to become longer. Whether suspension or home detention are appropriate for subsequent offending will depend upon the particular circumstances of any case. They may well be problematic in the case of repeated contumacious offending.
However, the length of a sentence, even in the case of repeated offending, must still be determined having regard to the available maximum and the general course of authority.
Resentence in this case
In this case the appellant had no compelling reason to drive and her consistent disregard for her legal obligations, manifested in repeated offending of various kinds (not merely driving whilst disqualified), demonstrated that there were no grounds for leniency.
Nonetheless, a starting point of half the available maximum was, notwithstanding the appellant’s appalling record, manifestly excessive. She had not previously been sentenced to a term of imprisonment for this offending.
Accordingly, the appeal is allowed.