PARRINGTON v Police - [2004] SASC 342

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PARRINGTON v POLICE
Judgment of The Honourable Justice White
12 November 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
Appellant pleaded guilty to driving whilst disqualified, driving under the influence of alcohol, driving unregistered, driving uninsured and resisting a police officer - Offences committed serious, but appellant's personal prospects very positive - Magistrate imposed total sentences of four months imprisonment, unsuspended - Magistrate erred in finding resisting police the most serious offence of its type - Sentence of one month imprisonment for resisting police excessive - Consideration of power to suspend sentence under s 38(2) of Criminal Law (Sentencing) Act 1988 - Exceptional case - Sentence of imprisonment suspended.
Magistrates Court Act 1991, s 42; Road Traffic Act 1961, s 47, s 47B; Motor Vehicles Act 1959, s 9, s 91, s 102; Summary Offencs Act 1953, s 6; Criminal Law Consolidation Act 1935, s 85; Criminal Law (Sentencing) Act 1988, s 18A, s 38, referred to.
Wood v Samuels (1974) 8 SASR 465, applied.
Police v Cadd (1997) 69 SASR 150; R v Peterson (1978) 18 SASR 124; Dermis v Symons (1979) 22 SASR 429; Gardner v Janic (1975) 12 SASR 495; Crafter v Police [2001] SASC 336, considered.

PARRINGTON v POLICE
[2004] SASC 342
Magistrates Appeal
WHITE J:
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, from a decision of a Magistrate on sentence.
On 20 May 2004 the appellant was detected by a police officer driving in an unorthodox manner on Highway 83 near Hawker. That driving, and the appellant’s subsequent behaviour, gave rise to a number of charges for which the appellant was sentenced by a Magistrate in the Magistrates Court at Port Augusta on 30 August 2004.
The appellant had previously been convicted in the Port Augusta Magistrates Court on 3 November 2003 for three driving offences, the principal one of which was attempting to drive a vehicle whilst under the influence of alcohol contrary to s 47 of the Road Traffic Act 1961. He was then fined $700 and disqualified from holding or obtaining a driver’s licence for a period of eight months. The period of disqualification was to expire on 3 July 2004.
The Offences and the Sentences
The appellant’s driving on 20 May 2004 therefore meant that he was driving whilst disqualified from doing so, contrary to s 91 of the Motor Vehicles Act 1959. For this offence, the Magistrate entered a conviction and sentenced the appellant to two months imprisonment to be served cumulatively upon the sentences of imprisonment which he imposed separately for other offences. In addition, for this offence, the Magistrate ordered that the appellant be disqualified from holding or obtaining a driver’s licence until further order. The Magistrate contemplated that the appellant should have to reapply for a driver’s licence at the end of a three-year suspension which he imposed in respect of an offence of driving under the influence of alcohol to which I will refer shortly.
The vehicle which the appellant was driving on 20 May 2004 was both unregistered and uninsured. The appellant therefore committed the offences established by s 9 and s 102 respectively of the Motor Vehicles Act. In respect of the offence of driving an unregistered vehicle, the Magistrate entered a conviction but did not impose any further penalty. In respect of the offence of driving a vehicle which was uninsured, the Magistrate entered a conviction and disqualified the appellant from driving a motor vehicle for a period of three months commencing on 30 August 2004.
As well as committing these offences, the appellant was, on 20 May 2004, driving whilst under the influence of alcohol contrary to s 47 of the Road Traffic Act. In respect of this offence, the Magistrate entered a conviction and sentenced the appellant to imprisonment for a period of one month, that sentence being ordered to commence forthwith. In addition, the Magistrate disqualified the appellant from holding or obtaining a driver’s licence for a period of three years commencing on 30 August 2004.
Charges of driving the vehicle in a manner which was dangerous and of assaulting a police officer were withdrawn. However, the Magistrate did enter a conviction for the offence of resisting a police officer in the execution of his duty, contrary to s 6(2) of the Summary Offences Act 1953. For this offence the Magistrate sentenced the appellant to imprisonment for one month, that term to be served cumulatively upon the sentence of imprisonment of one month imposed in respect of the offence of driving under the influence.
The offence of resisting a police officer occurred when the appellant, having been stopped on Highway 83, moved off once the police officer approached his vehicle on foot. The appellant drove through some fencing on adjoining property and, on becoming entangled in the fencing, did not comply with the directions of the police officer. The appellant reversed his vehicle. This had the effect that fencing wire became taut about the police officer’s leg, thereby causing the officer injury. The appellant then fled his vehicle on foot and was chased by the police officer. When apprehended, the appellant for a time resisted the police officer.
In respect of the damage to the fencing (the offence of unlawful damage contrary to s 85(3) of the Criminal Law Consolidation Act 1935), the Magistrate entered a conviction but did not impose any further penalty upon the appellant entering into a bond to be of good behaviour for a period of 18 months. A charge that the appellant was driving whilst there was present in his blood more than .05g/100ml of alcohol contrary to s 47B of the Road Traffic Act was withdrawn.
The total period of imprisonment to be served was four months. However, the Magistrate did not invoke s 18A of the Criminal Law (Sentencing) Act 1988. The Magistrate imposed separate penalties in relation to each offence which he ordered to be served cumulatively.
A comprehensive submission in mitigation of penalty was made by the appellant’s counsel before the Magistrate. The appellant’s then counsel drew to the Magistrate’s attention a number of features of the appellant’s past and his circumstances in support of a plea for lenient sentences and in support of a plea that any sentence of imprisonment which was imposed should be suspended. I will refer to some of those circumstances shortly.
The Magistrate did not suspend any of the sentences of imprisonment, nor any part of the overall period to be served.
The Appeal
There are two grounds of appeal. The first is that the sentences of imprisonment are manifestly excessive. On the appeal, argument on this ground was confined to the sentence of imprisonment for one month for the offence of resisting a police officer. The second ground of appeal is that the Magistrate erred in failing to suspend the whole or part of the sentences of imprisonment which he imposed.
The Appellant’s Antecedents
The appellant did have some relevant prior history. I have already referred to his conviction on 3 November 2003 for the offence of attempting to drive a vehicle whilst under the influence of alcohol. In addition, the appellant was convicted on 17 December 1996 for the offence of driving a vehicle whilst disqualified from doing so. For that offence, the appellant had been sentenced to seven days imprisonment but that sentence had been suspended upon him entering into a bond. The Magistrate was told that this incident occurred four days after the appellant’s first son was born, when he drove a car to a chemist to obtain supplies for that son who was ill. The appellant did have some other Court appearances but it does not seem that these were relied upon by the prosecution before the Magistrate.
The circumstances in which the appellant’s licence came to be disqualified in the latter part of 1996 were not put before the Magistrate.
The Magistrate’s Decision
In many respects, the Magistrate had a difficult sentencing decision in the circumstances of this case. On the one hand, the offences committed by the appellant had to be regarded seriously. The appellant had driven a vehicle whilst grossly intoxicated. He had driven that vehicle for over 100 kms prior to being apprehended by the police officer. He must have constituted a considerable risk to other road users. His manner of driving had been so markedly affected that he had been reported by other road users to Sgt Traeger in Hawker. Having been so alerted, Sgt Traeger drove on to Highway 83 in order to investigate. He, in turn, observed the appellant’s driving, noticing that he was not able to keep his vehicle wholly within his part of the carriageway and observing him move across the carriageway on to the incorrect side of the road in a way which plainly embarrassed an on-coming vehicle. This offence occurred only six months after the appellant’s conviction for the offence of attempting to drive a vehicle whilst under the influence of alcohol.
In addition, the appellant was driving whilst disqualified from doing so. This was his second conviction for that offence. In Police v Cadd (1997) 69 SASR 150 at 180, Mullighan J said that “the circumstances which would justify other than a sentence of imprisonment actually to be served [for a second or subsequent offence] do not readily come to mind but that is not to say that they cannot exist”. See also Doyle CJ at 168. The appellant was resistant of Sgt Traeger and attempted to flee to avoid apprehension. All these circumstances, together with the appellant’s record, indicated that his offending had to be regarded with some gravity.
On the other hand, the Magistrate was impressed by the appellant and with his history. He accepted that the appellant was genuinely contrite. The appellant had written an apology to the farmer whose fence he had damaged and had paid the $50 claimed by that farmer by way of compensation for the damage. In addition, the appellant had both telephoned, and written to, Sgt Traeger. He had apologised for his behaviour. The Magistrate was provided with a number of references concerning the appellant. They indicated that he was a person of good character with a good work history, who was well regarded by his present and previous employers. He has been offered continuing employment with his current employer when it finishes a project in Port Augusta and commences another project interstate. The appellant has, in the past, been involved in responsible positions including working for a period of three years as an Aboriginal Education worker. The Magistrate considered that the appellant’s work record was excellent, particularly when regard was had to the disadvantages commonly experienced by members of the Aboriginal race, of which the appellant is a member. As Mr Bennett pointed out, the appellant’s good work record was achieved not only in a provincial South Australian town with above average levels of unemployment, but by an Aboriginal person, many of whom are often at a disadvantage in obtaining, and retaining, employment.
In addition, the appellant had family responsibilities, sharing the custody of his two children with his former wife to whom he makes payments of $125.00 per week by way of child support. Further, by reason of his former wife’s ill health, the appellant often has the care of his children at other times. There was evidence that the appellant contributed, through various voluntary activities, to the life of his local community. The Magistrate described the appellant as being “an excellent candidate for rehabilitation”. In short, there was a good deal of material in the appellant’s personal circumstances indicating that he was deserving of leniency.
The Magistrate said:
“… the seriousness of the offences before the Court, particularly the driving while under the influence, driving while disqualified and resisting arrest must be described as falling into the most serious of their type in terms of commission and defiance of relevant legislative and community standards. For example, to drive from Port Augusta to the Quorn Hotel then north of Hawker, a distance of at least 100 kilometres on a major highway while so much under the influence of intoxicating liquor as to have no recollection of the journey, and while disqualified as well, suggests that you were a very real threat to other road users. … It is a very sad day indeed that it was necessary to warn your counsel and you that an immediate period of imprisonment was a likely prospect. I did so after hearing from the prosecutor and you regarding certain alleged aggravating features of the offending and the submissions overall. … I regret that your present offending is so serious that an immediate prison term is appropriate even after exercising the discretion conferred upon me by the provisions of the Motor Vehicles Act, the Road Traffic Act and the Criminal Law (Sentencing) Act. I do so with the greatest of reluctance and as a last resort, since you are not an inherently violent person, nor do you seek to escape or delay the consequences of your ill-considered actions.”
The Sentence for Resisting the Police Officer
I now turn to the first ground of appeal, namely that the sentence imposed for the offence of resisting the police officer was excessive.
It was submitted that the Magistrate had made two errors in imposing the sentence of one month’s imprisonment in relation to the offence of resisting a police officer: he had taken into account the injuries sustained by Sgt Traeger in the earlier incident which had been said to constitute an assault, and he had wrongly characterised the offence as being amongst the most serious of its type.
It was submitted that as Sgt Traeger did not allege any injury as a result of the conduct of the appellant relied upon by the prosecution for the offence of resisting police, it was inappropriate for the Magistrate to have regard to those injuries. The police officer had suffered an injury to his leg but that was as a result of conduct of the appellant which had formed the basis for a charge of assault, which charge had been withdrawn. In those circumstances, it would have been inappropriate for the Magistrate to take into account the injury suffered by the police officer. However, although the Magistrate has referred to the injury in his general narrative of the sequence of events, he has not referred to it as an aggravating factor in the offence of resisting a police officer. I do not consider that the Magistrate has made the error attributed to him.
On the other hand, I do not think that the appellant’s resistance of Sgt Traeger was the most serious of its type. Although the appellant attempted to strike Sgt Traeger, which is to be viewed seriously, he did not, apparently, make contact, and appears to have been subdued reasonably quickly. Thereafter he was compliant. The offence did not occur in circumstances which may have incited others to violence against this police officer or to others. The appellant had no previous court appearances involving violence. I consider therefore that the Magistrate’s characterisation of the offence as being one of the worst of its type was in error. That requires reconsideration of that sentence.
The maximum penalty for the offence of resisting a police officer in the execution of his/her duty is a fine of $2500 or imprisonment for six months. Although the circumstances of this offence by the appellant were serious enough, and considerations of general deterrence are, as the Magistrate pointed out, important, it could not, in my opinion, be said that any sentence, other than a sentence of imprisonment would be inappropriate. I say this having particular regard to the appellant’s personal circumstances to which I have already referred. In my opinion, the appellant could have been appropriately dealt with for this offence by a fine, which I would fix in the sum of $700.00.
I would therefore uphold this ground of appeal.
Ground 2: The Failure to Suspend the Sentences
The appellant submitted that the Magistrate was in error in failing to suspend, pursuant to s 38(2) of the Criminal Law (Sentencing) Act, the whole of the prison sentences which he had imposed or, in the alternative, in failing to suspend, pursuant to s 38(2a), at least part of the period to be served.
The power to suspend a sentence is found in s 38 of the Criminal Law (Sentencing) Act. Insofar as is presently relevant, it provides:
“(1) Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond –
(a)    to be of good behaviour; and
(b)    to comply with the other conditions (if any) of the bond.
(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.
(2a)However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order –
(a)    direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.”
Subsection (1) contains the grant of power to a court to suspend a sentence where the court considers that there is “good reason” for doing so. However, sub-s (2) prevents a sentence from being suspended where the sentence is to be served cumulatively upon another term of imprisonment.
Mr Ahern submitted that s 38(2) operated to prevent the suspension of all or any of the sentences of imprisonment which the Magistrate had imposed, as each was cumulative upon the others. My initial view was that that submission was correct. It seemed to me that it would have been possible for the Magistrate to suspend the whole of the four months of imprisonment only in the event that he had invoked the use of s 18A of the Criminal Law (Sentencing) Act. As already noted, the Magistrate did not do this.
However, on reflection, I do not think that that is the correct construction of s 38(2). Rather, all s 38(2) operates to preclude is suspension of a sentence which will only commence to be served at a prospective date. That is to say, s 38(2) precludes a court from determining, at the time of sentencing, that a sentence should, at some time in the future, be suspended. Thus, s 38(2) would, in the circumstances of this case, have precluded the Magistrate from ordering one term of imprisonment to be served, but suspending the other two terms which he had imposed. But where the suspension of all three sentences is contemplated, s 38(2) has no application. It has no application because, in that circumstances, there is no sentence upon which another is actually to be served cumulatively.
There are a number of considerations which suggest to me that that is the preferable construction. In my opinion, a key to the understanding of s 38(2) is that it uses the words “served” in different places with two different meanings. The expression “where the sentence is to be served cumulatively” must mean “where the sentence is ordered to be served cumulatively”. However, when s 38(2) refers in the penultimate and last lines to “another term then being served or about to be served” it is referring to a sentence actually being served at the time of the suspension and to one which is actually to be served in the near future. In other words, s 38(2) operates when a person who is, or who will actually be, in custody receives a further sentence of imprisonment. It is the sentence which is cumulative “upon” a period actually spent in custody which cannot be suspended. Where there is no such period, s 38(2) has no application. Construed in this way, s 38(2) can be read as resolving the uncertainty which had existed prior to its enactment: see R v Peterson (1978) 18 SASR 124; Dermis v Symons (1979) 22 SASR 429.

I therefore reject Mr Ahern’s submission as to the effect of s 38(2) in this case. It was open to the Magistrate to suspend all of the sentences which he had imposed. Section 38(2) did preclude an order that one of the sentences be served, and the others suspended. However, it was open to the Magistrate pursuant to s 38(2a) to suspend service of part of the total period of imprisonment which would be served as a result of his orders.
The decision of the Magistrate with respect to suspension involved the exercise of a discretion. The limited circumstances in which an appellate court will interfere with the exercise of a sentencing discretion are well-known.
The Magistrate considered suspension of, but expressly declined to suspend, the sentences which he had imposed. The Magistrate said, “Although good reason exists within your antecedents enabling discretion to arise and suspend the terms just imposed, for the reasons mentioned surrounding the offending I decline to do so”. The reasons to which the Magistrate referred were the serious nature of the offending. The gravity of the offending and the requirements for personal and general deterrence meant, in the Magistrate’s view, that an immediate sentence of imprisonment was required. Further, although the Magistrate did not refer expressly to the Full Court decision in Police v Cadd there is the circumstance that suspension of a sentence of imprisonment for a second offence of driving whilst disqualified is likely to be exceptional. Furthermore, the fact that service of a sentence of imprisonment for the offence of driving whilst disqualified will result in loss of employment is not a factor which is to be given undue significance.[1]
[1] Police v Cadd (1997) 69 SASR 150 per Doyle CJ at 168-169.
The discretion of the Magistrate with respect to suspension should be revisited. That follows from my conclusion that the Magistrate was in error in describing the offence of resisting a police officer as being one of the most serious of its kind and from my having set aside the Magistrate’s sentence of imprisonment for that offence.
In my opinion, this is one of those exceptional cases in which, even though the appellant was being sentenced for a second offence of driving whilst disqualified, and even though he had a prior conviction for attempting to drive a vehicle whilst under the influence of alcohol, it is nevertheless appropriate to suspend the whole of the terms of imprisonment of the remaining two sentences of imprisonment. As has been noted several times, a suspended sentence is a very real punishment.[2] Of particular significance in relation to suspension is the Magistrate’s conclusion that the appellant is “an excellent candidate for rehabilitation”. In addition, for the reasons noted above, the appellant’s employment record is impressive. It is undesirable that the appellant be required to serve a short period of imprisonment when that is likely to have the consequence of him losing continued employment with his current employer.[3] Finally, I refer to the effect on the appellant’s family and his former wife if he is imprisoned. That effect is, of course, of little significance when considered by itself, but taken in conjunction with the other factors suggests that disqualification of both of the remaining terms of imprisonment is appropriate.
[2] Wood v Samuels (1974) 8 SASR 465 per Walters J at 468.
[3] Cf Gardner v Janic (1975) 12 SASR 495; Crafter v Police [2001] SASC 336 at [13].
Accordingly, I uphold the second ground of appeal as well.
Conclusion
For the reasons given, I allow the appeal. In respect of the offence of resisting a police officer in the execution of his duty, I set aside the order of the Magistrate imposing one month’s imprisonment. In lieu thereof, I impose a fine in the sum of $700.
Pursuant to s 38(2) of the Criminal Law (Sentencing) Act I order that the sentence of imprisonment of two months imposed for the offence of driving whilst disqualified and the sentence of one month’s imprisonment imposed in respect of the offence of driving under the influence be suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of 20 months. It is to be a condition of the bond that the appellant report, within 48 hours, at the office of the Department of Community Corrections and that he obey the lawful directions given by the Community Corrections Officer to whom the appellant is assigned for the purposes of supervision, and in particular any directions with respect to the use of alcohol.
The remaining sentences and orders of the Magistrate are to stand.