Panuccio v Police
[2016] SASC 7
•12 February 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PANUCCIO v POLICE
[2016] SASC 7
Judgment of The Honourable Justice Vanstone
12 February 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - GENERALLY
Application for extension of time within which to appeal against sentence - applicant pleaded guilty to serious traffic offences in the Magistrates Court and received a custodial sentence and licence disqualification for 11 years - whether extension of time for seven years was justified - whether licence disqualification imposed was manifestly excessive - whether Magistrate failed to consider applicant's prospects for rehabilitation - whether it was open to the Magistrate to order disqualification 'until further order' under s 168 of the Road Traffic Act.
Held: Application refused. The total disqualification period imposed was not out of proportion to the nature of the offending. The Magistrate was correct in determining to impose fixed terms of disqualification. It is not open to the court to order licence disqualifications until further order for offences which impose mandatory minimum disqualification periods. The proposed appeal would fail on the merits.
Road Traffic Act 1961 (SA) s 46, s 47B, s 168, s 169A; Criminal Law Consolidation Act 1935 (SA) s 19AC, s 144(1), s 85(3), referred to.
Boehm v Milham (1980) 24 SASR 98, applied.
R v Rigney [2001] SASC 426, not followed.
Hopkins v Conn (1979) 23 SASR 470; Police v Nowak (2000) 76 SASR 551, considered.
PANUCCIO v POLICE
[2016] SASC 7Magistrates Appeal: Criminal
VANSTONE J: Luigi Panuccio applies for an extension of time within which to appeal against a sentence imposed on 21 August 2008 by then Magistrate Mr Harris SM for offending against the Road Traffic Act 1961 (SA) and the Criminal Law Consolidation Act 1935 (SA). The sentence comprised a term of immediate imprisonment as well as driver’s licence disqualification for 11 years. It is upon the order of disqualification that this proposed appeal is focussed. The applicant requires an extension of some seven years.
Background
It is convenient to set out in tabular form details of the offending which the applicant acknowledged.
Offence date Offence Section Maximum Penalty Plea date 15.07.2006 Driving in a manner dangerous Road Traffic Act s 46 Imprisonment for 2 years
Minimum disqualification of 3 years
21.04.2008 12.01.2007 Driving in a manner dangerous Road Traffic Act s 46 Imprisonment for 2 years
Minimum disqualification of 3 years
23.07.2008 08.08.2007 Unlawful possession Summary Offences Act s 41(1) $10,000 or imprisonment for 2 years 23.07.2008 05.12.2007 Driving in a manner dangerous to escape police pursuit (at Elizabeth Downs) Criminal Law Consolidation Act s 19AC Imprisonment for 3 years
Minimum disqualification of 2 years
23.07.2008 Driving in a manner dangerous (at Elizabeth East)
Road Traffic Act s 46 Imprisonment for 2 years
Minimum disqualification of 3 years
23.07.2008 Driving in a manner dangerous (at Elizabeth Downs, Elizabeth Park and Elizabeth East) Road Traffic Act s 46 Imprisonment for 2 years
Minimum disqualification of 3 years
23.07.2008 14.01.2008 Making off without payment Criminal Law Consolidation Act s 144(1) Imprisonment for 2 years 02.07.2008 15.01.2008 Driving in a manner dangerous to escape police pursuit Criminal Law Consolidation Act s 19AC Imprisonment for 3 years
Minimum disqualification of 2 years
23.07.2008 Resisting a police officer Summary Offences Act 1953 s 6(2) $2500 or imprisonment for 6 months 23.07.2008 Damaging property Criminal Law Consolidation Act s 85(3) Imprisonment for 10 years 23.07.2008 11.04.2008 Breach of bail agreement Bail Act 1985 s 17 $10,000 or imprisonment for 2 years 23.07.2008 23.04.2008 Breach of bail agreement Bail Act 1985 s 17 $10,000 or imprisonment for 2 years 02.07.2008
The Magistrate sentenced the applicant to 18 months and 27 days’ imprisonment with a non-parole period of nine months. That was backdated to 9 May 2008. The period of disqualification for 11 years was ordered to commence on the day of sentence, being 21 August 2008. Upon the hearing of the appeal I was told that the applicant was also liable to serve two additional terms of imprisonment and that he was eventually released in 2011, having served a total of approximately three years.
By Notice of Appeal filed on 4 December 2015, the applicant challenges the sentence imposed by the Magistrate. The applicant makes no complaint about the term of imprisonment, which has already been served, but argues that the period of licence disqualification was manifestly excessive and that, in fixing it, the Magistrate failed to bring to account the applicant’s prospects for rehabilitation.
Arguments on appeal
Counsel for the applicant, Mr Retalic, argues that the Magistrate should have made a disqualification order in the terms suggested by the police prosecutor, that there be a disqualification until further order. That would have provided flexibility in terms of any return of the applicant’s licence and would have allowed the Court to supervise the resumption of driving. It is submitted that the disqualification period of 11 years is simply too long, indeed that it is “crushing”, a word borrowed by Mr Retalic from the authorities concerned with the principle of totality.
It is put that the Magistrate’s error was found in his failure to refer to rehabilitation when discussing the nature of sentencing. The Magistrate said this:
In sentencing you there are a number of important considerations. I have to bear in mind the need to protect the community, including members of the police force who enforce the laws on behalf of the community. I need to deter you and other people from committing such offences. I have to ensure that you are adequately punished for what you did. ...
The Magistrate then discussed two authorities dealing with driving dangerously to escape police pursuit. He said he had considered “the full range of sentencing options”. He had already referred to the applicant’s personal circumstances.
It appears likely that the approach adopted by the Magistrate to reach the total disqualification period of 11 years was to add the minimum period to which the applicant became liable for each separate incursion. In other words, for the three offences of 5 December 2007, the minimum periods were treated as if they would run concurrently, giving a figure of three years, and then that figure was added to the minimum periods arising from the separate offences.
The applicant tendered an affidavit in support of the application for an extension of time. He avers that he always thought the disqualification period was seven rather than 11 years, that confusion being due to his then addiction to illicit substances, including methylamphetamine. He avers that he is no longer using illicit substances and that treatment for his bi-polar disorder is now settled and effective. A note from the applicant’s general practitioner was tendered to support that last submission. The applicant asserts that there has been no offending since his release from custody and that he is now rehabilitated.
The applicant claims that not having a driver’s licence impedes his employment, which is the management of his mother’s various rental properties. In addition, there is difficulty in seeing his three children, who live in Port Pirie. He claims that it was not until he attended at the Holden Hill Magistrates Court in 2015 to apply for the return of his driver’s licence that he discovered he was disqualified for 11 years.
Consideration
It is helpful to first determine what power is utilised when ordering that periods of disqualification are to be served either concurrently or consecutively. I set out s 169A of the Road Traffic Act (“the Act”).
169A—Power to postpone commencement of disqualification
If, under this Act or any other Act, a court orders that a convicted person be disqualified from holding or obtaining a driver's licence, the court may, if it is satisfied that reasonable cause exists for doing so, order that the disqualification take effect from a day or hour subsequent to the making of the order.
It can be seen that s 169A of the Act gives a court power to order that terms of licence disqualification are to be served consecutively where reasonable cause exists for so doing. This power is to be exercised in accordance with proper sentencing principles: Boehm v Milham (1980) 24 SASR 98 at 104 per King CJ, Wells J and Williams AJ agreeing. The court usually orders that the periods are to run consecutively only where the relevant offences are separated in time and place: Hopkins v Conn (1979) 23 SASR 470.
The very terms of s 169A suggest that in the usual case the disqualification period will commence on the day of the order.
In Police v Nowak (2000) 76 SASR 551, the Full Court considered the question of concurrency in the context of the respondent’s commission of two separate offences of driving with the prescribed concentration of alcohol. Each offence required the sentencing court to impose a penalty which included licence disqualification for not less than a certain period, there, 12 months and six months respectively.
Counsel for the police, Mr M Walter, conceded that the Magistrate had the power to order that both terms start on the day penalty was imposed and that they therefore run concurrently. That concession was made despite the provisions of s 47B(3)(b) stipulating that the disqualification prescribed could not be reduced or mitigated in any way in the absence of a finding – on the basis of evidence on oath – that the offence was trifling. Doyle CJ (with whom Debelle J agreed) and Bleby J were prepared to act on the concession, although neither wished to be taken as agreeing with it. Bleby J observed that s 47B(3)(b) of the Act would normally constitute “reasonable cause” (under s 169A) for ordering that periods of disqualification run consecutively. Debelle J specifically agreed with Bleby J’s reasoning on this point.
In the present appeal a provision comparable to s 47B(3)(b) is applicable, that being s 46(3)(b). Its terms are:
46—Reckless and dangerous driving
...
(3) If a court convicts a person of an offence against subsection (1), the following provisions apply:
...
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.
Fifteen years after the decision in Nowak I do not consider that the correctness of Mr Walter’s concession would still be doubted. The sentencing court plainly has the power to order that a disqualification period commence forthwith, or that it commence at a later time. If two periods are to commence at the same time, then the effect of such orders will be that the periods are served concurrently and no breach of s 47B(3)(b) would occur. However, I respectfully agree with the observations of Bleby J in Nowak’s case at [47] to the effect that s 47B(3)(b) evinces a legislative intention that, “except in the most unusual case”, at least the minimum period of disqualification for each conviction will be served. That intention would be frustrated if multiple periods arising from driving offences on separate occasions were allowed to run concurrently. Further, it follows, in my view, that if resort is to be had to something akin to the principle of totality to mitigate the impact of adding a number of periods of disqualification, then that may only be done after giving full weight to that legislative intention.
The next question is whether, where minimum periods of disqualification are prescribed, a court may order that there be disqualification “until further order”. This is the order Mr Retalic would have me impose were I to set aside the period of disqualification imposed by the Magistrate. I did not receive submissions on the existence of such a power, counsel seemingly accepting that it was available. Certainly there is such a general power provided in the Act, but there is a question in my mind as to whether it is available in the present circumstances.
The Act provides a range of general powers to make orders in respect of drivers’ licences following conviction. I set out some of those powers:
168—Power of court to make orders relating to licences or registration
(1) A court that convicts a person of—
(a) an offence against this Act relating to motor vehicles; or
(b) an offence (under this Act or any other Act or law) in the commission of which a motor vehicle was used or the commission of which was facilitated by the use of a motor vehicle,
may do one or more of the following:
(c) order that the person be disqualified from holding or obtaining a driver's licence for a period fixed by the court or until further order;
(d) order that the person so disqualified be not, at the end of the period of disqualification or on the removal of the disqualification, granted a driver's licence until the person passes a driving test as prescribed by section 79A of the Motor Vehicles Act 1959;
(e) order that a driver's licence held by the person be modified for a period fixed by the court or until further order;
(f) order that the registration of the motor vehicle concerned under the Motor Vehicles Act 1959 be suspended for a period fixed by the court or until further order, or be cancelled;
(g) order that the person, and any associate of the person, be disqualified from obtaining registration of the motor vehicle concerned as an owner or operator under the Motor Vehicles Act 1959 for a period fixed by the court or until further order.
...
It can be seen that s 168(1)(c) provides a power to disqualify until further order. The question which arises is whether this general power operates in circumstances where a provision such as s 46 of the Act requires the court to order disqualification for: “[s]uch period, being not less than 12 months, as the court thinks fit. ...”
It is arguable that an order for disqualification until further order does not amount to disqualification for a period greater than the required minimum. Moreover, although at first glance disqualification until further order might appear to be a harsher penalty than disqualification for a set period, in practice, a disqualified person might persuade a court to reinstate his licence prior to the time when an order for a fixed period, if made, would have elapsed.
Inasmuch as s 168 provides powers of a general nature and s 46 relates specifically to the offence of reckless or dangerous driving, I consider that it regulates the situation to the exclusion of the general power and requires the imposition of a fixed term of disqualification. I recognise that other members of this Court have sometimes taken a contrary view; for example, Lander J in R v Rigney [2001] SASC 426. Accordingly, I consider the Magistrate was correct in determining to impose a fixed term.
I turn to consider whether the total of the periods of disqualification imposed was manifestly excessive. Put another way, that question is whether the addition of the periods of disqualification resulted in a total period which was out of all proportion to the nature of the driving offences committed.
The applicant has a shocking record of driving offences pre-dating the offences now under consideration and extending back to 1989. It includes a number of offences of driving without due care, at least four speeding offences, five offences of dangerous driving, a drink-driving offence and 13 offences of driving under suspension or disqualification.
As is illustrated by the table of offending set out earlier in these reasons, the Magistrate had to consider terms of disqualification for six driving offences. The four offences against s 46 of the Act each attracted a minimum licence disqualification of three years as all were subsequent offences. The two offences of driving in a manner dangerous to escape police pursuit attracted minimum disqualification periods of two years. There were four separate occasions of offending spanning 19 months. It is plain that at the time of each subsequent offence, the appellant was aware that he already faced prosecution. The Road Traffic Act provisions which I have discussed make it plain that Parliament expects even a single instance of this type of offending to attract a significant penalty which might include a sentence of imprisonment.
I do not plan to set out the details of each of the episodes of dangerous driving. It is sufficient to note that each involved significant speed, often well above the speed limit, in built-up areas. The offending was extremely serious, in some cases prolonged, and it occurred against the background of a prior conviction within five years for dangerous driving. I reject the submission that the total disqualification period imposed was out of proportion to the nature of the offending or imposed without regard to the applicable principles. In my opinion, the approach which I infer the Magistrate took, of aggregating the minimum periods for each occasion of offending, was in accordance with the principles I have discussed.
While the appellant is to be congratulated on his apparent rehabilitation in terms of ceasing use of illicit drugs and his management of his bi-polar condition, and recognising that the abuse of drugs may well have accounted for the prolonged period over which these offences occurred, I do not consider these personal matters render the period of disqualification imposed manifestly excessive, or even particularly severe.
Even had I considered the proposed appeal to have some merit, there would have been difficulty in justifying an extension of time within which to appeal of the length required here. As the proposed appeal would fail on the merits it is not necessary to further discuss that question.
Conclusion
For the foregoing reasons the application for an extension of time within which to appeal is refused.
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