Phillips v Police

[2012] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

PHILLIPS v POLICE

[2012] SASC 174

Judgment of The Honourable Justice Vanstone

4 October 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence - appellant sentenced by magistrate to six months imprisonment for dangerous driving - imposition of immediate custodial sentence made appellant liable to serve unexpired parole of about 15 months - magistrate imposed sentence of six months to be served cumulatively upon the unexpired parole giving a total head sentence of one year 9 months 23 days and non-parole period for 12 months - whether magistrate should have suspended sentence - whether head sentence and non-parole period were excessive.

Held:  no error of approach by magistrate;  sentence not excessive;  appeal dismissed.

Correctional Services Act 1982 s 75; Criminal Law (Sentencing) Act 1988 s 31(2), referred to.
R v Margetson (1987) 139 LSJS 325, discussed.
R v Rossi (1988) 142 LSJS 451; Chandler v The Queen (1994) 62 SASR 558, considered.

PHILLIPS v POLICE
[2012] SASC 174

Magistrates Appeal

VANSTONE J:

Introduction

1. The appellant, Phillop Phillips, pleaded guilty in the Magistrates Court to driving a motor vehicle at a speed dangerous to the public. The penalty imposed was an immediate custodial sentence of six months imprisonment, against a maximum penalty of two years imprisonment. By operation of s 75 Correctional Services Act 1982 the sentence triggered the obligation to serve unexpired parole of over 15 months.  The sentence to be served became one year, nine months and 23 days.

2. Upon appeal it is contended that the new sentence should have been suspended, and that the sentence for the driving offence was manifestly excessive.

   Background

3. The offence was committed on the afternoon of 20 January 2012 when police witnessed the appellant riding his motorcycle at 199 kilometres per hour, northbound on the Tod Highway about eight kilometres south of Cummins.  There was other traffic on the highway at the time.  Police pursued the appellant, but abandoned the chase after reaching 155 kilometres per hour and being unable to catch up to him.  The appellant was located by police at Lock at 4.50 pm.  He admitted to being the owner and rider of the motorcycle.  The appellant pleaded guilty in the Magistrates Court on 18 June 2012.  He was 34 years old at the time of the offending.

4. In sentencing, the Chief Magistrate noted a favourable reference from the appellant’s employer, but concluded that in light of the seriousness of the offence and the appellant’s prior convictions for driving while disqualified, driving without due care and speeding, a custodial sentence was warranted. Giving the appellant a discount of a quarter, in recognition of his guilty plea, the Chief Magistrate imposed a sentence of six months imprisonment. The period of unexpired parole which the appellant became liable to serve was one year, three months and 23 days. That was the balance of a sentence imposed for four counts of unlawful sexual intercourse. The victim of those offences was a 15 year old girl who had been working as a childminder for the appellant’s young son in Murdinga, on the Eyre Peninsula. By operation of s 31(2) of the Criminal Law (Sentencing) Act 1988 the new sentence had to be cumulative upon the unexpired parole.  In relation to the total of one year, nine months and 23 days, a non-parole period of 12 months was fixed.  As well, the mandatory minimum licence disqualification of 12 months was imposed.

   Arguments on appeal

5. The principal argument of Ms David, for the appellant, is that the sentence imposed for the dangerous driving offence should have been suspended.  In that event the appellant would not have become liable to serve the unexpired period of parole.  Ms David argues that the factors calling for suspension were first, that the appellant had employment on a property as, in effect, a leading hand and had the benefit of a powerful reference attesting to his skill, level of responsibility and commitment to that employment provided by his employer.  Then Ms David points to the fact that from the time of the offence on 20 January 2012 to the time of sentence, being 18 June, there was no further offending of any type.  As well, plainly, the breaching offence was of an entirely different nature from the offences for which the appellant was on parole.

6. As Ms David submits, the Chief Magistrate made no reference at all in her sentencing remarks to the possibility that the sentence might have been suspended.  Plainly, the discretion to suspend the sentence arose.  Ms David argues that the magistrate’s failure to explain why no good reason to suspend the sentence was found, coupled with certain of the magistrate’s remarks, are suggestive of error.  At [6] of her remarks the Chief Magistrate said this:

   In sentencing you, as I must, to a sentence of imprisonment, that brings into play that period of time and therefore, you are going to be suffering some very severe penalties indeed.  That is all the more tragic because had you not been driving at that speed and had you not committed this offence, you would not be at risk of going to prison, you wouldn’t be at risk of serving the rest of that sentence, you wouldn’t be at risk of losing your job, which you will, you wouldn’t be at risk of suffering difficulties in gaining access to your child as I am told that you want to do;  all for the fact that you took such an enormous risk on that day.

   (emphasis added)

   Ms David suggests that this statement suggests that the magistrate wrongly denied herself any discretion to suspend.

7. Ms David further argues – and she made it plain that these were subsidiary matters only – that the sentence itself was manifestly excessive, especially when regard was had to the quite lengthy period of unexpired parole to which the appellant became liable.  It is accepted that the principle of totality does not come into play in a case such as this.  However, something akin to it is potentially relevant.  In R v Margetson (1987) 139 LSJS 325, dealing with a similar chain of events, although a much longer total sentence, Jacobs ACJ, with the concurrence of the other members of the Court, explained that, while the totality principle itself might strictly not be relevant, the fact that the appellant became liable to serve a lengthy sentence which would run consecutively with the new sentence became part of the prisoner’s personal circumstances and liable to be taken into account. He said at 327:

   I would not wish in any way to weaken the sanction of parole and it would almost invariably be the case that the balance of the previous sentence must be served before the new sentence starts.  But just as a Court, when sentencing a prisoner who is already serving a sentence for other offences is required to have regard to both sentences in fixing a new non-parole period, so it seems to me that a Court is entitled to have some regard to the totality of the outstanding sentence and the current sentences in viewing the total effect of the head sentence for the current offences.

   Similar remarks were made by King CJ in R v Rossi (1988) 142 LSJS 451 and Chandler v The Queen (1994) 62 SASR 558.

8. Plainly the period of unexpired parole was immutable.  In some cases, especially where lengthy periods of imprisonment were to be imposed and were to be cumulative upon that unexpired parole, a reduction in the new sentences might be called for.  Here, Ms David’s argument really comes down to submitting that given the nature of the new offending and noting that there was, fortunately, no collision or embarrassment resulting from it, and having regard to the quite disastrous result of the sentence from the appellant’s point of view, a reduction to the fresh sentence should have been made to ameliorate the result.  Further, Ms David argues that, although the length of the non-parole period showed some advertence to the favourable personal circumstances of the appellant, a further reduction could have been made, again to moderate the harshness of the final result.

   Analysis

9. One cannot but have sympathy for the appellant.  Having served a significant period in prison for the prior unlawful sexual intercourse offences, he now is faced with serving a further lengthy period in custody, thereby undermining the very positive steps taken since being released on parole.  An hour or so’s recklessness and overconfidence has led to another significant period in custody and deprived him of the ability to continue to demonstrate his skills and employability in farm work, so highly valued by his employer and the farming community at large.

10. Nonetheless, however powerful was his claim for leniency, the fact remains that the appellant had only been released on parole some six or seven weeks before this offence occurred, he had a poor record of driving offences and the offence was extremely serious.  I agree with Ms David that it would have been more satisfactory had the Chief Magistrate’s remarks dealt with the question of suspension, but I am satisfied that they failed to do so simply because the magistrate reached the view that good reason could not be found.  Her Honour’s remark that she must sentence the appellant to a term of imprisonment merely reflects this conclusion.  In the end, I agree with that decision.  Even were I to have found that there was some sort of oversight by the magistrate, or that the failure to deal with the issue meant that the reasons were inadequate, I would ultimately reach the same decision, that is, that good reason could not be found.

11. Further, I am not persuaded that the head sentence and non-parole period were manifestly excessive.  The Chief Magistrate plainly took into account all relevant factors in formulating the sentence.  The appellant did not come to the court as a person of good character.  Aside from the appellant’s convictions for unlawful sexual intercourse, he has, as I have observed, a number of previous convictions for driving offences.  The Chief Magistrate gave the appellant a substantial discount for his guilty plea and imposed a head sentence that was a quarter of the maximum.  There can be no doubt that, in setting the non-parole period at just over half the head sentence, her Honour took into account all relevant factors favouring the appellant.  At [8] of her remarks, the Chief Magistrate stated:

    I set a non-parole period which is probably more lenient than I otherwise would, because of the way that you are spoken of, because of the progress that you were making and because of your personal circumstances.

12. I do not agree that the totality principle or any like principle had a role to play in this case.  The sentence comprised only two components and was not lengthy.  However, plainly the liability to serve the balance of the earlier sentence was a relevant circumstance.  There is no reason to apprehend that the Chief Magistrate was not alive to it and every reason to conclude that she was.  No error can be demonstrated in the fixing of the non-parole period.

    Conclusion

13. I consider it all but inevitable that this sentence had to be served.  I do not agree that the sentence or non-parole period were manifestly excessive.

14. The appeal must be dismissed.