Nicholls v Police

NICHOLLS v POLICE
[2003] SASC 303
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the penalty imposed upon him in the Magistrates Court sitting at Christies Beach following his plea of guilty to a charge that on 4 July 2003 at Lonsdale without reasonable excuse he failed to comply with a term or condition of a bail agreement contrary to s 17(1) of the Bail Act 1985.
At the time he was dealt with for this offence he was also before the court on a charge that on 4 July 2003 at Dyson Road, Lonsdale, he drove a motor vehicle at 99 kilometres an hour in an 80 kilometre per hour speed zone, and that at the same date and place he drove whilst disqualified from holding or obtaining a driver’s licence. He pleaded guilty to those charges as well.
He was before the court on the same day as those offences were committed. He was represented by a solicitor, Mr Janson, who made submissions on his behalf. The magistrate there and then imposed penalties for all of the offences.
On the breach of bail the appellant was imprisoned for a period of 21 days. It is from that sentence that the present appeal is brought.
On the offences of speeding and drive disqualified the sentencing magistrate imposed one penalty only; namely a fine of $300.
As for the breach of bail, it appears that the appellant was released on home detention bail on 23 May 2003 pending his trial in the District Court on a number of dishonesty offences.
It was a condition of the bail that he not absent himself from an address at States Road, Onkaparinga Hills, except for remunerated employment, or for necessary medical or dental treatment, or for any other reason approved by a community corrections officer.
On the day in question at about 10.24 am he was detected driving a motor vehicle north on Dyson Road at Lonsdale at the speed to which I have referred. When stopped and questioned, he gave no explanation for his excessive speed.
Subsequent inquiries revealed that he was subject to the home detention bail condition to which I have referred.
I have had the benefit of affidavits from the police prosecutor Mr Dollard and also from Mr Janson.
According to the facts given by the prosecutor, the officer responsible for the supervision of the appellant’s home detention bail stated that earlier on that day, that is, 4 July 2003, she received a call from the appellant, during which she gave him permission to drive directly to an appointment with his solicitor Mr Vadasz. The appointment was believed to be at 2.00 pm The permission was conditional upon him driving by the most direct route from his home address to Mr Vadasz’s office and home again.
After the appellant had been detected and charged, inquiries made by the police with Mr Vadasz’s office revealed that there was no record of any appointment on that day for the appellant.
According to Mr Dollard, the defendant stated to police that he was meant to have an appointment with Janson & Co Solicitors on Beach Road, Christies Beach, although he originally stated that the appointment was with Mr Vadasz and that he was on his way to Holden Hill when stopped by police.
That part of the narrative given by the prosecutor to the sentencing magistrate is somewhat ambiguous. However, I would understand it to mean that, when first challenged as to where he was driving, the appellant indicated to the police that it was to Mr Vadasz’s office in order to keep an appointment with him, but that, when it was pointed out there was no record of any such appointment, he then stated that he was meant to have an appointment with Janson & Co Solicitors.
At all events, it is clear from the magistrate’s remarks on penalty that the magistrate was, to say the least, somewhat sceptical of the explanation, in whatever terms it might have been proffered.
He said during his sentencing remarks:
“The suggestion is that the defendant decided to travel through the western suburbs to his solicitor’s office and thereby avoid the city and its traffic. That might have been okay but for another difficulty; the defendant was detected driving at 10.24 this morning. His appointment was not until, he believed, 2.00 pm this afternoon. In addition, inquiries with the solicitor reveal, in all probability, the defendant did not have an appointment with Mr Vadasz at 2.00 pm today. There is some suggestion the defendant might have believed he had an appointment with his solicitor, Mr Janson, at 2.00 pm this afternoon, but I am not absolutely sure of that either. Even if there was such an appointment, it does not in any way explain the defendant driving in a northerly direction on Dyson Road at Lonsdale at 10.24 am when Mr Janson’s office is in the completely opposite direction.”
In his affidavit, Mr Janson suggests that, in making those remarks, the magistrate must have been in error. Mr Vadasz, who appeared for the appellant on the hearing of the appeal, repeated that suggestion.
According to Mr Janson, he submitted to the magistrate that his client had made a mistake as to where he was to attend, as he had an appointment in fact at Mr Janson’s office.
Mr Janson submitted that the appellant was mistaken as to the person with whom he had the appointment at 2.00 pm, and by mistake was driving to Mr Vadasz’s office instead of to Mr Janson’s office. He further submitted to the magistrate that this explained why the plaintiff was driving in a northerly direction at that hour of the day and it was this mistaken belief of the appellant that was the cause of his conduct.
Mr Janson also submitted the offence was trivial, and drew attention as well to the poor medical history of the appellant.
In my view, the sentencing magistrate was justifiably sceptical of the explanation given as to why the appellant was on Dyson Road at that time.
Mr Vadasz, who appeared for the appellant, submitted that if the magistrate was not intending to believe the appellant’s account, he should have alerted him to that possibility, so as to give him an opportunity to give evidence.
I think, with respect to Mr Vadasz, that that may be pitching it too high. If an explanation given by a defendant in the Magistrates Court is intrinsically unlikely, or obviously one which might be properly regarded with a degree of circumspection or scepticism, I hardly think it necessary for the magistrate to point out the obvious to counsel who may be appearing for the defendant.
Be that as it may, it does not seem to me that one should read the magistrate’s sentencing remarks as indicating a rejection of the account given.
One must not overlook that the appellant pleaded guilty, which means that it was not open for him to suggest that he believed that at the time he was driving, he did so with the approval of the community corrections officer with whom he had spoken that morning.
He admitted by his plea of guilty to driving in breach of the conditions attaching to the home detention bail. That must mean, irrespective of the circumstances, that he was committing what the magistrate correctly regarded as a serious offence.
The magistrate commented:
“So far as the breach of bail offence is concerned, this is not simply a breach of a condition of an every day bail agreement. This is a breach of a home detention bail agreement. It is, in my opinion, a serious offence and it is in my opinion an offence deserving of a sentence of imprisonment. I do not consider the sentence of imprisonment need be unduly long, but sufficiently long to bring home to the defendant, and indeed to others who are subject to home detention bail conditions, that if they breach those conditions there will be a stern penalty imposed upon them.”
In the events which happened, the appellant served five days of the 21 days in prison before being released on bail pending the hearing of the appeal.
It appears further that the substantive offences upon which he was released on bail are yet to come to trial in the District Court and may not do so for some months from now.
Mr Vadasz submitted that the magistrate should have suspended the sentence and suggested that his sentencing remarks indicated a failure to consider that sentencing option.
This was an experienced magistrate, and it is not necessary for magistrates to set out or tabulate every possible sentencing option and cross off those which they consider inappropriate. Magistrates must be presumed to be well aware of the sentencing options. Clearly, the magistrate in question was satisfied that the penalty which he was imposing was appropriate to the case in hand.
As far as suspension of the penalty is concerned, it seems to me that insofar as there was an obvious need for general deterrence, a suspended sentence would not be appropriate. I say that because it is abundantly clear that many members of the public do not regard a suspended sentence as any sort of a penalty at all. In those circumstances, where the offence requires a penalty which will reflect a substantial element of general deterrence, a suspended sentence is, I would think, hardly ever the appropriate option.
I have carefully considered Mr Vadasz’s submissions and whether or not the 21 day sentence under appeal is in fact manifestly excessive. It seems to me, however, that this Court should be reluctant to interfere with sentences imposed by experienced magistrates in circumstances where they are in the best position to determine what is appropriate, having regard particularly to questions of general deterrence in the locality in which they are sitting.
It seems to me that although the penalty was heavy, the appellant has failed to demonstrate that it is, in all the circumstances, manifestly excessive.
As Ms Tsogas, who appeared for the respondent, pointed out, the appellant has a long record of prior offending, including offences of dishonesty, and they include at least one other offence of breach of bail and one of breach of parole.
The appeal should be dismissed.
I so order.

[2003] SASC 303

27 August 2003