PICK v Police - [2013] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PICK v POLICE
[2013] SASC 184
Judgment of The Honourable Justice Kelly
25 November 2013
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
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - OTHER FACTORS - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence - appellant charged on two complaints with two identical sets of offences committed within 10 days of one another, driving disqualified, driving a defective vehicle and driving an unregistered vehicle - for first driving disqualified offence Magistrate imposed an 18 month good behaviour bond with conditions - for second driving disqualified offence Magistrate disqualified the appellant’s driver’s licence for three months and sentenced him to seven days imprisonment suspended upon entry into the good behaviour bond - for all other offences, appellant was convicted without penalty - appellant filed notices of appeal nearly one year after sentence.
Two grounds of appeal – first, Magistrate failed to take into account s 19C of the Criminal Law (Sentencing) Act 1988 (SA), second, sentence of seven days imprisonment and disqualification of licence for three months manifestly excessive.
Held:
(1) Extension of time to file the notices of appeal refused. Insufficient merit in grounds of appeal and no prejudice to appellant identified.
(2) In any event sentences imposed by the Magistrate were not crushing and do not amount to inappropriate double punishment.
(3) The Magistrate must have taken into account the matters he was required to under s 19C of the Criminal Law (Sentencing) Act 1988 (SA). The sentences as a whole are not explicable on any other basis.
(4) Appeal dismissed.
Motor Vehicles Act 1959 (SA) s 9, s 91; Road Traffic Act 1961 (SA) s 145; Criminal Law (Sentencing) Act 1988 (SA) s 19C, referred to.
Sadler v Crossman (1988) 47 SASR 331; Khammash v Police (1999) 29 MVR 561; Peart v Police [2003] SASC 274; R, J v Police [2006] SASC 153; Clancy v Haynes (1994) 179 LSJS 196; Police v Warren [2000] SASC 285, discussed.

PICK v POLICE
[2013] SASC 184
Magistrates Appeal: Criminal
KELLY J.

This is an appeal against two sentences imposed by a Magistrate on 10 September 2012. The appellant appeared for sentence before Magistrate Harrap in relation to three complaints.
The first complaint alleged that on 12 January 2011, the appellant drove a defected vehicle without L-plates displayed, without an accompanying licenced driver, and without being able to produce his permit to drive. These offences were committed nine days after identical offending committed on 3 January 2011. For these offences the sentencing Magistrate convicted on each count but imposed no penalty. The sentence imposed for this set of offending is not the subject of the appeal, but sheds some light on the course adopted by his Honour.
The second complaint, the subject of this appeal charged the appellant with driving while disqualified contrary to s 91 of the Motor Vehicles Act 1959 (SA) (“Motor Vehicles Act”), driving an unregistered vehicle contrary to s 9 of the Motor Vehicles Act and driving a defective vehicle contrary to s 145 of the Road Traffic Act 1961 (SA) (“Road Traffic Act”). These offences were alleged to have been committed on 17 May 2011. The appellant pleaded guilty to all counts on 18 November 2011. For the first count, driving while disqualified, the Magistrate imposed an 18 month good behaviour bond with conditions. For counts two and three the appellant was convicted without penalty.
The third complaint, also the subject of this appeal further charged the appellant with driving contrary to defect, driving whilst disqualified and driving an unregistered vehicle. These offences were alleged to have been committed on 28 May 2011. The appellant pleaded guilty to all counts on 22 September 2011. For the charge of driving while disqualified, the Magistrate disqualified the appellant from holding a driver’s licence for three months and imposed a sentence of seven days imprisonment suspended upon entry into the aforementioned 18 month good behaviour bond. The appellant was discharged without penalty for the other two charges.
The power to impose a driver’s licence disqualification in relation to an offence of driving while disqualified is provided by s 168 of the Road Traffic Act. The maximum penalty for driving while disqualified is six months imprisonment for a first offence and two years imprisonment for a subsequent offence.[1] I accept the appellant’s submission that the offences of driving while disqualified on 17 May and 28 May 2011are both first offences for the purposes of s 91(5) of the Motor Vehicles Act, because the appellant was not previously convicted of either offence.
[1] Motor Vehicles Act 1959 (SA) s 91(5).
At the time of sentencing and in relation to offending the subject of this appeal, the appellant had completed a Magistrates Court Diversion Program. On 18 November 2011, the appellant was referred to the Program on the basis of his diagnosis of Major Depressive Disorder. He was accepted into the Program on 19 December 2011, and successfully completed it on 23 August 2012.
Magistrate’s remarks on penalty
The appellant’s notices of appeal were filed almost 12 months out of time, on 3 September 2013. The appellant seeks an extension of time on the ground that the relevant sentences only became known to the solicitor now acting for the appellant upon receipt of the police offender history report in August 2013. The respondent opposes that application. I will return to the question of extension of time at the end of my reasons, but I note at this stage that a side effect of this delay has been the inability of the Magistrates Court to provide this Court with a complete file containing penalty remarks. However the Magistrate provided this Court with a report dated 23 October 2013 in lieu of the missing remarks on penalty. In that report, his Honour notes that prior to sentencing he was provided by Police Prosecution with a copy of the apprehension reports for the appellant’s various offences and a copy of his previous offending history. He also had various reports relating to the appellant’s involvement in the Treatment Intervention Program, and documentation from the appellant’s psychologist was also tendered. The Magistrate notes in his report that while he cannot specifically remember what he said during sentencing “As part of my remarks to him, I have no doubt his successful completion of the Treatment Intervention Program would have been mentioned.” That assertion of the Magistrate is borne out by the recollection of the prosecutor whose affidavit I refer to later in these reasons.[2]
[2] Affidavit of Emmanuel Athans sworn 23 October 2013.
Grounds of appeal
The appellant filed two separate notices of appeal. The first notice appeals against the 18 month good behaviour bond imposed for the offence of driving while disqualified on 17 May 2011, on the ground it was manifestly excessive in light of the appellant’s successful completion of the Diversion Program. The appellant submitted at hearing that had the Magistrate taken s 19C of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”) into account, he would not have arrived at that sentence.
The second notice appeals against the suspended sentence of seven days imprisonment and three months’ driver’s licence disqualification on two grounds. First, that the sentences are manifestly excessive given the appellant’s successful completion of the Diversion Program and second that the imposition of a driver’s licence disqualification in combination with a term of imprisonment, albeit suspended, is double punishment for the offence of driving while disqualified.
Double punishment
The appellant submitted that the order imposing three months’ driver’s licence disqualification in addition to a suspended sentence of imprisonment amounted to double punishment.
In the case of Sadler v Crossman[3] von Doussa J said:[4]
Where a sentence of immediate imprisonment is imposed, that sentence should be punishment enough for the contempt which the defendant has shown for the order of disqualification which he has disobeyed. The punishment inflicted by s 91 has been inflicted. … There may be cases where the circumstances lead the court to impose a sentence of imprisonment which is shorter than the norm and to balance that fact by increasing the punishment by adding a period of licence disqualification. I think that such cases would be rare.
[3] (1988) 47 SASR 331.
[4] Sadler v Crossman (1988) 47 SASR 331 at 338.
The reach of his Honour’s reasons was extended to sentences imposing a combination of suspended sentence and licence disqualification in subsequent cases including Khammash v Police,[5] Peart v Police,[6] and R, J v Police.[7] In Peart Perry J said:[8]
While it is true that von Doussa J was referring to “immediate imprisonment”, which I assume means a term of imprisonment which is intended to take effect then and there, and not a suspended term of imprisonment, in my view, for the purposes of sentencing principles, in this context, I do not think there is any difference.
[5] (1999) 29 MVR 561.
[6] [2003] SASC 274.
[7] [2006] SASC 153.
[8] Peart v Police [2003] SASC 274 at [27].
On that basis, Perry J concluded that in sentencing for a guilty plea to driving disqualified, it was not a proper exercise of the discretion to impose six months’ licence disqualification additional to a penalty of 21 days imprisonment suspended upon entry into a bond, and quashed the order of licence disqualification.
A later judgment of this Court, R, J v Police[9] involved an appeal against sentence of eight months licence disqualification and three months imprisonment, suspended, for the offence of driving disqualified. Layton J (Anderson and Sulan JJ agreeing) noted:[10]
In some cases a combination of a suspended sentence of imprisonment and a licence disqualification may be appropriate, however, in my view the combination of three months imprisonment and a period of disqualification of eight months was manifestly excessive, even having regard to the suspension of the sentence.
[9] [2006] SASC 153.
[10] R, J v Police [2006] SASC 153 at [42].
The Full Court quashed the sentence imposed by a Judge of the Youth Court and imposed a period of imprisonment for one month, suspended upon the appellant entering a good behaviour bond. No licence disqualification was imposed in addition to the suspended sentence of imprisonment.
Counsel for the respondent submitted that the facts of this case are distinguishable from each of the authorities referred to by the appellant. He submitted that the complaint of double punishment has been more appropriately made in respect of cases analogous to Clancy v Haynes.[11] In Clancy the appellant appealed against a penalty of imprisonment imposed for driving whilst disqualified when he was already subject to two orders of disqualification. He was sentenced to four weeks imprisonment and a further order of disqualification for two years. Debelle J concluded that the totality of imprisonment and the order of disqualification of two years was manifestly excessive.
[11] (1994) 179 LSJS 196.
Here, there was a very short period of imprisonment and a relatively short period of disqualification. I agree with the respondent’s submission that the imposition of a seven day period of imprisonment, suspended, in conjunction with three months driver’s licence disqualification was not manifestly excessive. This is precisely one of those cases contemplated by von Doussa and Layton JJ where the imposition of imprisonment and disqualification is appropriate. The combination did not render the sentence crushing, or the period of disqualification crushing as it did in the cases like Peart and R, J.The fact that the offending was contumacious in that it involved two episodes of identical offending which occurred within 10 days of each other was another important factor to consider.
Section 19C of the Criminal Law (Sentencing) Act 1988 (SA)
The appellant also complained that Magistrate must not have considered s 19C of the Sentencing Act when imposing sentences for the 17 May 2011 and 28 May 2011 offences of driving while disqualified. That section provides:
19C—Mental impairment
(1)A court that finds a defendant guilty of a summary or minor indictable offence may release the defendant without conviction or penalty if satisfied—
(a)     that the defendant—
(i)suffers from a mental impairment that explains and extenuates, at least to some extent, the conduct that forms the subject matter of the offence; and
(ii)has completed, or is participating to a satisfactory extent in, an intervention program; and
(iii)recognises that he or she suffers from the mental impairment and is making a conscientious attempt to overcome behavioural problems associated with it; and
(b)     that the release of the defendant under this subsection would not involve an unacceptable risk to the safety of a particular person or the community.
(2)A court may, at any time before a charge of a summary or minor indictable offence has been finally determined, dismiss the charge if satisfied—
(a)     that the defendant—
(i)suffers from a mental impairment that explains and extenuates, at least to some extent, the conduct that forms the subject matter of the offence; and
(ii)has completed, or participated to a satisfactory extent in, an intervention program; and
(iii)recognises that he or she suffers from the mental impairment and is making a conscientious attempt to overcome behavioural problems associated with it; and
(b)     that dismissal of the charge under this subsection would not involve an unacceptable risk to the safety of a particular person or the community; and
(c)     that the court would not, if a finding of guilt were made, make an order requiring the defendant to pay compensation for injury, loss or damage resulting from the offence.
Counsel referred to the length of the program and the degree of commitment required by participants in submitting that the sentences imposed were manifestly excessive.
The respondent submitted that the penalty imposed for the offence of driving disqualified on 17 May 2011 was in fact discounted to reflect the applicant’s participation in the Intervention Program and referred to the affidavit of the Police Prosecutor[12] who appeared before the Magistrate. In that affidavit, the Police Prosecutor deposed that the Magistrate “made reference to the appellant’s progress in the diversion program and praised him”, and “took that participation into account when deciding to give a reduction in penalty for the charge of drive disqualified on 17 May 2011”.[13] The appellant did not provide the Court with an affidavit from counsel appearing for appellant at sentencing submissions.
[12] Affidavit of Emmanuel Athans sworn 23 October 2013.
[13] Affidavit of Emmanuel Athans sworn 23 October 2013.
In any case, I consider that it could only be the case that the Magistrate did consider and apply s 19C of the Sentencing Act when sentencing the appellant. His Honour states in his sentencing report that he had the various reports relating to the appellant’s involvement in the Treatment Intervention Program on the file at the time of sentencing. Despite my not having the relevant remarks on penalty, and notwithstanding the fact that his Honour does not explicitly state in his sentencing report that he relied on s 19C, I have reached the conclusion that he must have had regard to the provisions of s 19C. The Magistrate is experienced, particularly in relation to the Magistrates Court Diversion Program. The leniency of the sentences imposed viewed globally leads me to conclude that the only way his Honour could have arrived at those sentences was by taking into account as he was required to do, the appellant’s successful completion of the Diversion Program.
Extension of time
Briefly returning to the application for an extension of time; it transpired during the hearing that the appeals in this case are proceeding on principle and not in response to any actual prejudice suffered by the appellant (over and above what is maintained to be in effect double punishment). In Police v Warren,[14] Gray J summarised the principles governing an application for an extension of time as follows:[15]
[14] [2000] SASC 285
[15] Police v Warren [2000] SASC 285 at [16].
…
(1)The discretion exists for the sole purpose of doing justice between the parties.
(2)Some material must be advanced upon which the court can exercise its discretion.
(3)There is an obligation to explain with frankness and candour the reason for delay.
(4)The longer the delay the more exceptional or substantial the explanation required.
(5)If no sufficient grounds of appeal are disclosed an extension will not be granted.
(6)The court is not obliged to consider the merits in detail.
(7)The court will consider whether any substantial grounds exists for apprehending a miscarriage of justice.
(8)Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a miscarriage of justice.
[footnotes omitted]
Applying those principles to all of the circumstances here, and having considered the merits of the appellant’s argument on the substantive aspects of this appeal, I have concluded that this is not an appropriate case in which to grant an extension of time. The notices of appeal were filed almost 12 months out of time, the Magistrates Court was embarrassed to some extent by the inability to locate the remarks on penalty, the sentences imposed by the Magistrate were not crushing and do not in the circumstances amount to inappropriate double punishment. I am satisfied that the Magistrate did take into account the matters he was required to under s 19C of the Sentencing Act even though he is not now able to recall exactly what he said.
Having regard to the appellant’s personal circumstances, his completion of the Diversion Program, and all of the circumstances surrounding the relevant offending, I can detect no error of fact or law which would justify the intervention of this Court. For these reasons the appeals must be dismissed. The formal orders I make are:
1Extension of time within which to lodge the notices of appeal is refused.
2Appeal is dismissed.