Peters v Police - [2009] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PETERS v POLICE
[2009] SASC 1
Reasons for Sentence of The Honourable Justice Gray
7 January 2009
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
ABORIGINALS - CRIMES BY ABORIGINALS - SENTENCE - FACTORS TO BE CONSIDERED
Appeal against sentence – appellant pleaded guilty to driving while disqualified contrary to section 91 Motor Vehicles Act 1959 (SA) – magistrate sentenced appellant to 8 months’ imprisonment – whether sentence manifestly excessive – whether good reasons exists to suspend sentence – consideration of appellant’s personal antecedents: appellant is a 42 year old indigenous man from Yalata community; appellant is in poor physical health; appellant has history of alcoholism – consideration of appellant’s criminal antecedents: appellant has extensive prior convictions for driving while disqualified and drink driving – consideration of context of offending: appellant drove to collect his daughter and newly born grandson from hospital; appellant lives in remote and isolated Yalata community; few licensed drivers and working cars in Yalata – consideration of psychological report concerning appellant’s prospects for rehabilitation.
Held: Appeal allowed – sentence of Magistrate set aside – appellant re-sentenced to term of imprisonment of 1 month, having regard to time already spent in custody – sentence wholly suspended on appellant entering into a supervised 2 year good behaviour bond – terms of bond are designed to enhance appellant’s prospects of rehabilitation.
Motor Vehicles Act 1959 (SA) s 91, referred to.
Houghagen v Charra (1989) 50 SASR 419; R v Fernando (1992) 76 A Crim R 58, considered.

PETERS v POLICE
[2009] SASC 1
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Gregory Peters, pleaded guilty to the offence of driving while disqualified from holding or obtaining a licence contrary to section 91 of the Motor Vehicles Act 1959 (SA). The offending occurred on 2 November 2007 on the Eyre Highway at Nundroo. The Magistrate sentenced the defendant to a term of imprisonment of eight months.
The defendant did not apply for bail pending appeal and by the time of the appeal hearing he had spent approximately five months in custody. On 5 August 2008, I allowed the appeal. Having regard to the time spent in custody I sentenced the defendant to imprisonment for one month. I exercised my discretion to suspend the sentence. It was not possible at that time to provide reasons for my decision and I now do so.
The Magistrate in her sentencing remarks made reference to the defendant’s extensive record of driving while disqualified and observed:
In view of your record, and given the previous warnings from courts, it should be clear to you that every time you are caught driving under disqualification, you will face imprisonment.
The Magistrate then reviewed a number of the defendant’s prior convictions for driving while disqualified and noted the coincidence of drink driving offences in each instance. The Magistrate then turned to the present offending and remarked:
The submissions show that you told [your counsel] that you were trying to comply with the law but that when your daughter presented you with a problem and she needed transport you used the back roads until you had to go on the main highway. That is wrong thinking. You and your daughter should be thinking only that because you are disqualified from doing so, you should not be driving your car, and if you drive again you will face more imprisonment than you have in the past.
I take into account your guilty pleas and the ever-escalating periods of imprisonment you have faced in the past. It seems that the courts have tried to make you accept that your behaviour will not be tolerated and that the only remedy left to the court is to continue to increase the time you spend in custody, a waste of time in your life. You have wasted a lot of time in custody.
On the hearing of the appeal the defendant acknowledged that a term of immediate imprisonment was warranted. However, it was submitted that in the present case there were particular circumstances that allow the conclusion that the penalty was manifestly excessive.
Counsel for the defendant pointed out that his client was a 42-year-old man from the Yalata Community who suffered from diabetes, high blood pressure and was generally a sick man. The Court was informed that Yalata was established as the Lutheran Mission in the early 1950s and that there had been growth of endemic alcohol use in the area. Yalata was said to be affected by the complications of the Maralinga atomic bomb testing. It was argued that the defendant’s present situation had to be considered against this background. Counsel then identified a number of problems associated with Yalata. It was submitted that one of the greatest difficulties that has faced people from Yalata is the tyranny of distance and their isolation from most services. Yalata is 200 kilometres west from Ceduna. With the closure of the Yalata roadhouse, the nearest store is 49 kilometres away. Its isolation, the relative poverty, lack of driver’s licences and working cars and its remoteness compound the dilemmas of driving for Yalata people. It was pointed out that in the Aboriginal Drug and Alcohol Council report from 1997, the percentage of people without a licence in Yalata is proportionately much higher than the rest of the state.[1] 41% of their survey respondents in Yalata, Koonibba and Ceduna admitted having driven drunk, 55% to having been in a car driven by someone intoxicated, with the report noting:[2]
Most acknowledged how dangerous this was, but still took the risk because they felt they had little choice when going out for whatever purpose.
[1] Aboriginal Drug and Alcohol Council (SA) Inc, Aboriginal Road Safety Issues Report 1997 at 35.
[2] Aboriginal Drug and Alcohol Council (SA) Inc, Aboriginal Road Safety Issues Report 1997 at 27.
The need to approach sentencing matters with an appreciation of the particular difficulties of an indigenous community was considered in Houghagen v Charra,[3] where Bollen J highlighted the following factors:
[T]he character of the Yalata Aboriginal Community, the remoteness of the community, the paucity and cost of public transport, the difficulty of finding licensed sober drivers, the purchasing of alcohol at Nundroo, the danger to the other residents caused by disqualified drivers avoiding public roads, the effects of lifestyle changes on Yalata residents dependent upon motor transport.
[3] Houghagen v Charra (1989) 50 SASR 419.
Counsel drew attention to the observations of Wood J in R v Fernando:[4]
The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
…
That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
[4] R v Fernando (1992) 76 A Crim R 58 at 62-63.
Counsel for the defendant submitted that the objective seriousness of the present offending did not warrant a term of imprisonment before a reduction for the plea of 12 months. Acknowledging that the defendant’s reasons for driving did not excuse his conduct, it was contended that the defendant faced competing obligations to his family and to the Court. It was submitted that although his prior record on a superficial view could be described as “shocking”, a close review of the circumstances of his offending and the transport and other problems of Yalata provided an explanation and that in these circumstances the penalty was manifestly excessive. Counsel invited the Court to set aside the sentence and to impose a lesser sentence of imprisonment. It was pointed out that the defendant had been in custody since 3 April 2008 and had not sought bail pending appeal.
During the course of submissions the Court raised the question of whether the analysis of the defendant’s antecedents evidenced an inability on the part of the defendant to properly understand the consequences of his conduct. A review of a number of the police apprehension reports disclosed that the defendant had on a number of occasions readily acknowledged that he was driving while disqualified, aware of the Court order of disqualification, and provided the explanation that he was helping another person.
The defendant has been sentenced to ever lengthier terms of imprisonment for the offence of driving while disqualified. However, there does not appear to have been any detailed consideration of the underlying cause for the defendant’s behaviour. His past history suggests that some explanation may exist. At the Court’s suggestion, and with the consent of counsel for the Crown, arrangements were made by the defendant for an examination by a forensic psychologist in an attempt to explore the reason for his conduct.
The report from the psychologist has been tendered without objection. The psychologist conducted a detailed review of the defendant’s circumstances and was able to suggest an explanation for the defendant’s continued breaches of the law. He explained that the defendant, following marital difficulties, started to abuse alcohol which in turn led him to his breaches of the law. His use of alcohol was associated with depression. He was generally in a bad way.
The defendant’s present offending occurred in circumstances that have been explained in a letter written by the defendant. The contents are important to record:
I was staying in Ceduna for about one year when my step-daughter arrived from Maralinga in an ambulance. Unknown to us she was pregnant. She had been brought to Ceduna because she had gone into labour. As things turned out the baby was born in the ambulance on the trip to Ceduna. My step-daughter was admitted to Ceduna Hospital with her new baby, my grandson. She remained in the hospital for about three weeks and was then transferred to the outpatients hostel with my new grandson. During her one week stay at the hostel my step-daughter decided to buy a second hand car. I was not aware she had done this because I was drinking in the camp outside of town. Now that I look back I realise she was distraught and distressed. Buying the car was a way for her to get out of Ceduna (where she was miserable) and back to the peace and quiet of Maralinga (where she has always been happy).
If I could go back to that time and place I would not have driven the car. The reason that I did was because I felt guilty about not being there for her when she was pregnant.
At the point in time when I sobered up I foolishly decided to drive her in her car back to Yalata where I knew I could find a friend to drive her the rest of the way to Maralinga. At the time she was so miserable and unhappy I thought it best to get her back to Maralinga as quickly as possible so that she would be safe, happy and content. (Note: she has supportive family and friends there in Maralinga).
I am now addressing the root cause of my offending behaviour (my drinking). I have enrolled for the drug and alcohol course here at Port Augusta Prison.
I am aged 42 years and I feel it is not too late to turn over a new leaf. I hope and pray the authorities will give me a fair go so that I may restart my life and be there for my family. Also I would like you to note that I am a good driver and that not being able to drive seriously restricts my ability to provide support for my family, especially my step-daughter and my new grandson. I request that my license be reinstated as soon as possible.
The psychologist’s opinion was that the defendant’s prognosis to cease offending was fair to poor. He referred in particular to the defendant’s entrenched history of alcoholism, and his unstable de facto relationship which has led to general grief, shame and distress. However, the psychologist identified six factors that in his view indicated there were prospects of rehabilitation. Those factors are as follows:
His main criminogenic risk factor is his alcoholism. His alcoholism has developed in response to developing feelings of depression, shame, and distress regarding the breakdown of his first marriage and his turbulent defacto relationship. I believe he would respond to psychological and psychiatric treatment for his depression.
He is not in denial regarding his alcoholism. He acknowledges that his alcoholism has adversely impacted upon his general physical health. He now suffers from heart disease, high blood pressure, and has Type II Diabetes. He has been disadvantaged in the past by never having had the assistance of participating in a supervised, structured rehabilitation programme for his drug and alcohol abuse problems. He is motivated to participate in drug and alcohol abuse for his alcoholism. He presently is enrolled to participate in a drug and alcohol rehabilitation course in Port August Prison.
He has demonstrated he is capable of making positive changes regarding his drug and alcohol abuse problems. The only illegal drug he has ever used is cannabis. He was 20 years old when he became a daily user of cannabis, which he mainly used at the end of the working day. He ceased using cannabis approximately four to five years ago. He does not suffer from polydrug abuse problems. Therefore his alcoholism will be more amenable to rehabilitation.
He recognises that he is too old to keep committing driving whilst disqualified offences and being imprisoned. He knows that in 2010 he will be eligible to re-apply for his driver’s license again. He has decided he will no longer drive so he can maximise his changes of re-obtaining his driver’s license during 2010. However, he realistically knows that not having a driver’s license will create hardship for him and his extended family due to living in a geographically remote location where there is no reliable public transport.
He is of normal intelligence. He feels good about himself when he is learning at TAFE. He previously wanted to become a teacher. He commenced attending Ceduna TAFE to achieve this ambition. However, he failed to complete his course due to experiencing accommodation difficulties. I believe that if he can be assisted to become a qualified teacher’s aid in Yalata this will have a stabilizing effect upon his behaviour in the community.
He has a brother who is a Christian pastor. I believe his brother’s support will be useful in assisting him to rehabilitate himself.
The prospects for rehabilitation led the psychologist to make the following recommendations:
Referrals to DASSA to assist him develop relapse prevention strategies to overcome his history of alcohol abuse.
Referral to a psychiatrist to assess his suitability for pharmacotherapy for his history of depression. There are a number of psychiatrists who are contracted to provide visiting psychiatric clinics to the APY Lands. They work closely with the resident medical doctors and nurses in the APY clinics. Because he resides in Yalata, he would need to access psychiatric services through Pika Wiya Health Services in Port Augusta.
Treatment by a clinical psychologist, who has an understanding of Pitjantjatjara culture and the language, using cognitive-behavioural therapy.
Referral to support organisations for Aboriginal people who suffer from alcoholism (e.g. Pika Wiya, Nganampa Health Council, etc).
Random alco-testing to monitor his pattern of alcohol usage.
A relapse management programme should be implemented to deal with relapses of his alcohol usage. The purpose of this intervention would be to encourage him to be honest regarding any single alcohol relapse so that it could be prevented from escalating into an ongoing addiction and lead to offending. For example, it could be arranged for him to have a respite admission for a brief period to a residential drug and alcohol rehabilitation facility if he experienced a single alcohol relapse.
A case manager who has weekly contact with him to provide him with support and guidance.
Referral to group rehabilitation programmes offered by the Department of Community Corrections (i.e., cognitive skills, anger management, drug and alcohol, etc).
Referral to a financial counsellor who can assist him improve his budgeting skills.
Referral to an employment case manager who could assess his training needs and assist him become a teacher. His career ambition is to complete his teacher’s training at Ceduna TAFE so that he can teach children in Yalata.
Referral to Aboriginal Housing and he be placed on a priority housing list. Stable accommodation will facilitate his rehabilitation.
Referral to bridging literacy and numeracy courses.
Referral to an appropriate senior male Pitjantjatjara cultural mentor who could educate and indoctrinate him regarding the important role and obligations of men within his culture. He would also benefit from learning about traditional painting which could be used as a medium to teach him traditional dreamtime creation mythology (tjukurpa) to reinforce his cultural identity. His brother is a senior Pitjantjatjara man and a Christian pastor. I believe it would be appropriate to consult with his brother.
When I allowed the appeal on 5 August 2008, I considered that it was appropriate that the sentence imposed by the Magistrate be set aside and that having regard to the time spent in custody the defendant be sentenced to a term of imprisonment of one month. I reached the conclusion that good reason existed to suspend the sentence of imprisonment imposed on the defendant. As a consequence, the sentence of one month imprisonment was suspended on the defendant’s entry into a supervised good behaviour bond. The terms of the bond were designed to enhance the prospect of rehabilitation. They were as follows:
-That the defendant be of good behaviour, and comply with all the other conditions of this bond.
-That the defendant not drive a motor vehicle unless he holds a valid driver’s licence.
-That the defendant be under the joint supervision of a Ceduna Department of Correctional Services community corrections officer, and a Yalata Tullawon Health social programme counsellor, for a period of 2 years from the date of the defendant’s release from custody and obey the lawful directions given to the defendant by the community corrections officer and social programme counsellor to whom the defendant is assigned for the purposes of supervision. Such supervision is to include assistance with referrals and access to the following services and courses:
·       driver education;
·       financial counselling;
·       TAFE training and education courses;
·       Aboriginal housing;
·       Aboriginal alcoholism support services;
·       Aboriginal cultural programmes; and
·       literacy and numeracy courses.
-That the defendant participate in any individual or group counselling as may be arranged by the community corrections officer and/or social programme counsellor, that can occur in Yalata community.
-That the defendant participate in any psychological or psychiatric assessment and treatment as may be arranged by the community corrections officer and/or social programme counsellor, that can occur in Yalata community.
-That the defendant participate in any individual or group drug and alcohol programmes, that can occur in Yalata community.