Pointon v Police

POINTON v POLICE
[2004] SASC 4
Magistrates Appeal
GRAY J
Introduction

This is an appeal against sentence.
The Circumstances of the Offending
At about 4.00 am on 2 February 2003 police were called to commercial premises at Dry Creek. It was ascertained that a vehicle had been stolen and driven through locked front gates causing damage to the gates and padlocks. A search of the area located the vehicle being driven nearby. The police followed until the vehicle stopped. Mr Pointon left the vehicle and approached the police. He provided a false name and address. The police observed damage to the front driver’s side window. Mr Pointon was arrested. Police checks revealed that he was driving whilst disqualified.
On 12 August 2003 Mr Pointon was convicted of driving a motor vehicle without consent,[1] damaging property,[2] unlawfully on premises,[3] giving a false name and address[4] and driving whilst disqualified[5]. Mr Pointon pleaded guilty to each of these offences. In relation to the offences of driving without consent, damaging property and unlawfully on premises the magistrate imposed one penalty of eight months imprisonment pursuant to section 18A of the Criminal Law (Sentencing) Act 1988. This appeal relates only to the sentence imposed in respect of these offences. Mr Pointon was convicted without further penalty for giving a false name and address and driving whilst disqualified.
[1] Section 86A Criminal Law Consolidation Act 1935. Maximum penalty for first offence two years imprisonment, subsequent offence imprisonment for not less than three months and not more than four years.
[2] Section 85(3) Criminal Law Consolidation Act 1935. Maximum penalty two years imprisonment.
[3] Section 17(1) Summary Offences Act 1953. Maximum penalty two years imprisonment.
[4] Section 91 Motor Vehicles Act 1959. Maximum penalty for first offence six months imprisonment, subsequent offence two years imprisonment.
[5] Section 91 Motor Vehicles Act 1959. Maximum penalty for first offence six months imprisonment, subsequent offence two years imprisonment.
At the same hearing Mr Pointon was convicted of failing comply with a bail agreement and driving whilst disqualified. Mr Pointon pleaded guilty to both counts. Having regard to the two months he had spent in custody on remand, the magistrate convicted Mr Pointon without penalty.
At the same hearing Mr Pointon was convicted of failing to indicate before changing direction, driving while present a prescribed concentration of alcohol, driving an unregistered and uninsured vehicle and driving whilst disqualified. Mr Pointon pleaded guilty to each offence and the magistrate imposed a penalty including a licence disqualification and a fine of $800.
Mr Pointon was further convicted of two counts of failing to comply with a bail agreement. Regard was had to the time Mr Pointon had spent in custody. No further penalty was imposed.
Personal Antecedents
Mr Pointon’s personal antecedents indicate that he had a traumatic and an unstable childhood. Mr Pointon’s parents separated when he was seven. Both his parents died when he was fourteen.
Mr Pointon’s childhood indicates that he had poor role modelling and experienced considerable trauma due to the early death of his parents. A psychiatric report suggests that he had sought relief from this traumatic childhood through the misuse of alcohol and illicit drugs. It was also suggested that alcohol abuse, drugs use and violence were ‘normalised’ during his childhood.
According to Mr Pointon, he began drinking at age of 14 and drank heavily until two or three years ago when he attended the Elura Clinic and was diagnosed as an alcoholic. He began using amphetamines in 1999. He did so on a daily basis for several years and has consequently suffered delusions and periods of depression.
Mr Pointon has five children aged three to twelve years. After having three children with Ms Ellis, they separated in 1994. Ms Ellis suffered from a heroin addiction and has been imprisoned for drug offences. Mr Pointon and Ms Ellis reconciled in 1998 and had two more children in 1999 and 2000. Mr Pointon states that he has had no contact with Ms Ellis since late 2002 and believes Ms Ellis to be in custody. Ms Ellis’ mother currently has custody of Mr Pointon’s three older children and has been caring for the younger children since late 2002.
Mr Pointon has expressed a desire to provide his children with a positive future. Mrs Ellis believes Mr Pointon cares about the well being of his children and states that he has regular telephone contact with them. Mrs Ellis has taken the children to see Mr Pointon every week since he has been in custody.
Mr Pointon was employed by an electric chair manufacturer from 1997 and remained in that employment until he was remanded in custody in March 2003.
Criminal Antecedents
Mr Pointon’s criminal antecedents include offences of illegal use in December 1987, driving whilst disqualified and under the influence in August 1994, driving whilst disqualified and giving a false name and address in November 1994, driving an unregistered motor vehicle and failing to truly answer questions in January 1996, driving whilst disqualified and driving with excess blood alcohol in May 1996, driving whilst disqualified and failing to truly answer questions in December 1996, driving an unregistered motor vehicle, driving an uninsured motor vehicle and driving under disqualification in May 1997, larceny and unlawfully on premises in September 2002 and driving an unregistered motor vehicle, an uninsured motor vehicle and driving under disqualification in December 2002.
The penalties imposed in relation to these prior offences included fines, licence disqualifications and an order for community service. Mr Pointon had not been punished by imprisonment for any prior offence.
The Sentencing Remarks
In sentencing, the magistrate remarked:
I have listened carefully to what has been said and note your plea of guilty in respect of a very large number of offences. I note secondly, the time that you spent in custody.
Suffice it to say, illegal use is a serious matter. The circumstances are certainly serious. Even accepting the explanation, namely, that you were endeavouring to return the vehicle, the fact is that you took the vehicle, that you caused damage to the gates and you exited by smashing through the gates and in any event there was no authority to be on that property. As I say, a serious matter and one well deserving a substantial period of imprisonment.
In all the circumstances, it is not appropriate to order suspension of the sentence. In making that assessment, I take note of a Youth Court appearance in respect of an illegal use matter. Overall my assessment would be that it is not appropriate to order suspension of that sentence.
In making that assessment, I note your family responsibilities. I note the effort you have made to rehabilitate yourself in respect of a drug dependency but the message that has to be brought home to you is that conduct of this kind will be regarded as most serious and surely a deterrent aspect in the sentencing has to be a prominent aspect.
Extension of Time
An extension of time to appeal was sought on the grounds that Mr Pointon had to apply for legal aid, needed to obtain the magistrate’s reasons and had to instruct his solicitors. The notice of appeal was lodged within a month of the expiry of the time limit. Counsel for the Crown did not oppose the grant of an extension of time. In the circumstances it is appropriate to grant an extension.
The Appellant’s Submissions
Counsel for the appellant’s primary submission was that the sentence imposed by the magistrate was manifestly excessive.
Counsel for Mr Pointon submitted that notwithstanding Mr Pointon’s poor record, his sentence of imprisonment should have been wholly suspended or at least part of the sentence suspended pursuant to section 38(2a) of the Sentencing Act.
In support of this submission, attention was drawn to the fact that this was the first time Mr Pointon had faced a custodial order. Attention was also drawn to Mr Pointon’s responsibility for two young children of whom he has custody and his prospects for rehabilitation.
The Respondent’s Submissions
Counsel for the Crown drew attention to the decision of House v The King[6] where Dixon, Evatt and McTiernan JJ observed:
It is not enough that the judges composing the appellant court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellant court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instances. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Attention was also drawn to the more recent statement in Wong v The Queen[7] where Gaudron, Gummow and Hayne JJ observed:
Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, it is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
[6] [1936] 55 CLR 499 at 504-5
[7] (2001) 207 CLR 584 at 605 per Gaudron J
It was submitted that a number of factors justified an immediate custodial sentence in this case. Counsel placed particular emphasis on the serious nature of the offending and the cumulative maximum penalty for the offending. It was contended that as this was Mr Pointon’s second offence for illegal use the minimum penalty was imprisonment for a term of not less than three months.
Personal deterrence was said to be an important sentencing factor in this case. Mr Pointon’s antecedent criminal history indicated a persistent disregard for the law.
Consideration of the Issues
Section 86A of the Criminal Law Consolidation Act 1935 (SA)
Counsel for the Crown submitted that the illegal use offence was a subsequent offence within the meaning of section 86A of the Criminal Law Consolidation Act 1935 (SA) which provides:
A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
Penalty:
For a first offence - imprisonment for 2 years;
For a subsequent offence - imprisonment for not less than 3 months and not more than 4 years.
…
Mr Pointon had previously been convicted of illegal use of a motor vehicle contrary to section 44 of the Road Traffic Act 1961 (SA) which provided:
A person shall not, on a road or elsewhere, drive, use or interfere with a motor vehicle without first obtaining the consent of the owner thereof.
Section 44 was repealed by the Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992 and replaced by section 86A(1) of the Criminal Law Consolidation Act.
The question arises: whether the meaning of ‘subsequent offence’ in section 86A includes an earlier offence committed against section 44 of Road Traffic Act. There has been considerable debate about what constitutes a ‘subsequent offence’ in sections such as section 86A of the Criminal Law Consolidation Act.
One line of authority suggests that where the substance of an offence remains the same despite a change in a legislative scheme, a previous conviction will constitute a subsequent offence under the more recent Act. In R v Austin[8] the Court of Criminal Appeal was asked to consider the meaning of ‘second or subsequent conviction’ in the context of section 7(5) of the Criminal Law Amendment Act 1912[9]. It was argued for the appellant that as the previous offence was committed prior to the passing of the Act, it could not be considered a ‘subsequent offence’. The court observed:
It was not intended by [the Criminal Law Amendment Act 1912] to diminish the existing deterrents from these offences. …
No doubt; one can hardly imagine the Legislature punishing a man for having done an act which at the time of its commission was a perfectly innocent act. But to prescribe punishment for an old offender in case in the future he persist in his crime is quite another matter. The offence in question was committed since the Act. The Act says that a man guilty in the future may, if he has already been guilty in the past, be punished as he could not have been before the Act. There is nothing wrong in that. No man has such a vested interest in his past crimes and their consequences as would entitle him to insist that in no future legislation shall any regard whatever be had to his previous history.[10]
[8] [1913] 1 KB 551
[9] 2 & 3 Geo. 5, c 20
[10] [1913] 1 KB 551at 555-556
This reasoning was followed by the Supreme Court of South Australia in Bond v Alderson.[11] In that case, the court considered whether the term ‘subsequent offence’ in section 159 of the Licensing Act 1928 included offences committed before the operation of the Act. Richards J made the following observation:
No doubt, the legislature in passing the Act of 1928 intended to do away with the discretion formerly rested in the Court, and to that extent to repeal the former law. But it does not follow that an offence of the same kind thereafter committed was not intended to be a subsequent offence within the meaning of the amended section.
Richards J concluded that the earlier Act must be read as one with the later Act and vice versa. This line of reasoning suggests that where the offence remains substantively the same, offences committed under a previous legislative scheme will constitute subsequent offences under the new legislation.
[11] [1929] SASR 313 at 315
In Hennig v Roberston[12] Napier J was asked to consider whether a drink driving offence committed under the Motor Vehicles Act 1921 (SA) constituted a ‘subsequent offence’ under the corresponding section in Road Traffic Act 1936 (SA) (which repealed the former act). Referring to R v Austin and Bond v Alderson, Napier J held that the Road Traffic Act had not significantly altered the statutory offence in question, other than to impose more severe penalties. As a result, an offence under the former legislation should be considered a subsequent offence under the latter. Napier J observed:
The obvious intention of the Legislature in altering these penalties from time to time was to increase the deterrent effect of the section. The intention to confer anything in the nature of immunity upon persons who had already offended in the same way would be purely capricious, and I do not think that it can be implied in a statute like the Road Traffic Act 1934, which was primarily designed to consolidate the pre-existing law.
The natural reading of the section is that the higher penalties are imposed upon any person who, having previously offended in this way, is again guilty of the same offence. It is, in my opinion, the same offence, although the prohibition is now contained in another Statute, which has been substituted for the pre-existing Act. I doubt whether the legislation, in laying down these arbitrary penalties and denying the Court the discretion which is usually given, had in mind the possibility of a case in which the second offence is committed after an interval of upwards of ten years, and in another case the interval may be greater. But there seems to be no power to mitigate the penalty, and, in these circumstances, the penalty prescribed by the statute must be imposed.[13]
[12] [1937] SASR 400
[13] [1937] SASR 400 at 403
This approach, outlined in Austin and reaffirmed by Napier J in Hennig v Robertson, was followed in Pisanelli v Samuel,[14] Hoppo v Samuels[15] and Lindsay v Samuels.[16]
[14] [1968] SASR 168
[15] (1978) 18 SASR 277
[16] (1979) 20 SASR 285
In the more recent case of Warne v SA Police[17] the court was asked to consider the meaning of ‘subsequent offence’ in the context of section 86A of the Criminal Law Consolidation Act. Millhouse J expressed agreement with the reasoning in Hennig v Robertson. It was held that a previous offence of illegal use of a motor vehicle under section 44 of the Road Traffic Act constituted a ‘subsequent offence’ under section 86A of the Criminal Law Consolidation Act.
[17] (Millhouse J, 4 August 1994, unreported)
There are cases that illustrate a different approach to the interpretation of ‘subsequent offence’. In Hawkett v Demichelis[18] Walters J considered whether a road traffic offence in Victoria constituted a ‘subsequent offence’ under the South Australian Road Traffic Act. He concluded that it was correct in that case to have regard to the convictions in Victoria, however, they did not constitute ‘subsequent offences’ for the purposes of the Road Traffic Act. Walters J reasoned:
If the legislature passes a statute and imposes a penalty for a first offence, and a penalty for a second or subsequent offence, it must mean, in the absence of express words to the contrary, a penalty on conviction for a first offence under that Act, and a penalty on conviction for a second or subsequent offence under the same Act.
Under this reasoning, ‘subsequent offence’ appears to be limited to a previous conviction under exactly the same provision giving rise to the current conviction. Walters J also applied this reasoning in the case of Lansdell v Reed[19] where the court was asked to consider a similar question.
[18] (1975) 12 SASR 274
[19] (1981) 28 SASR 253
In Bartlett v D’rozario[20] Bray CJ considered the meaning of ‘subsequent offence’ in the context of two offences under the same Act but of a different nature. In that case, the previous conviction involved attempting to set a vehicle in motion whilst intoxicated and the offence in question involved driving whilst intoxicated. Bray CJ held that as the offences were different in nature, the second offence could not accurately be described as a ‘subsequent offence’ within the meaning of section 47(1) of the Road Traffic Act. Bray CJ referred to the remarks of Lord Parker in Bowers v Gloucester Corporation[21] and R v Chapman[22] and made the following observations regarding the interpretation of the phrase ‘subsequent offence’:
Where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the cannons of interpretation fail to solve, the benefit of the doubt should be to the subject and against the legislature to explain itself.[23]
[20] [1971] SASR 88
[21] [1963] 1 All ER 437 at 439
[22] [1931] 2 KB 606 at 609
[23] [1971] SASR 88 at 94
More recently in Walker v SA Police[24] Mulligan J commented on the interpretation of ‘subsequent offence’ although this was not directly in issue on appeal:
The respondent did not contend that the present offence was a subsequent offence against the Criminal Law Consolidation Act, having relied upon the decisions of Walters J in Hawkett v Demichelis [citation omitted] and Lansdell v Reed [citation omitted] to the effect that the first and subsequent offence or offences had to be under the same legislative provision before the penalty for a subsequent offence applied. The correctness of those decision is not in issue on this appeal which has been argued on the basis that there is no minimum penalty for the appellant’s offending. Obviously, the appellant appears to have benefited from the repeal of s44 of the Road Traffic Act. If that section had not been repealed and s86a of the Criminal Law Consolidation Act had not been enacted, the appellant would have been charged under s44 and would have to be regarded as a subsequent offender.
[24] (1993) 61 SASR 159 at 163

Counsel for the Crown submitted that the offences committed by Mr Pointon were identical and had section 44 of the Road Traffic Act not been repealed, he would have been charged under that section as a subsequent offender.
Counsel for the Crown referred to the second reading speech to the amending bill which addressed the proposed repeal of section 44 and the enactment of section 86A.[25] Counsel noted that the tenor of the debate was concern over the increasing number of incidents of illegal use of motor vehicles within the community and the need to send a clear message to the community that the offence would not be tolerated.[26] To achieve this end, the legislature substantially increased the penalties for the offences. It was submitted that it was not the legislature’s intention to create a new offence or to render nugatory offences previously committed under section 44 of the Road Traffic Act.
[25] Legislative Council Debates 1 April 1992 pp. 3754 - 3756
[26] Legislative Council Debates 1 April 1992 p. 3755
Section 86A(1) is not retrospective. It does not seek to penalise events that occurred before its enactment. The penalty provisions operate in specified circumstances. One relevant circumstance is the fact of the offence being a subsequent offence.[27]
[27] See Hoppo v Samuels (1978) 18 SASR 277 at 282
The legislature intended a repeat offender with respect of the offence of illegal use to receive an increased penalty with a greater deterrent effect. The natural reading of section 86A is that the higher penalties are to be imposed upon a person who having previously offended in a particular way, is again guilty of the same offence. Although the offence in the present case appears in different legislation, it remains the same in substantive effect as an offence against section 44 of the Road Traffic Act. Both offences are described in all but identical language.
‘Subsequent offence’ in section 86A should be interpreted to include an earlier offence against section 44 of the Road Traffic Act. The reasoning of Napier J in Hennig v Robertson is apposite. The legislature did not intend to offer anything in the nature of an immunity to a person contravening section 86A when the person had already committed an offence of using a motor vehicle without first obtaining the consent of the owner.
Imprisonment
Having regard to the circumstances of Mr Pointon’s offending and the provisions of section 86A of the Criminal Law Consolidation Act it was appropriate to order a term of imprisonment in this case. Counsel for Mr Pointon did not suggest to the contrary. The magistrate’s decision to imprison was within his sentencing discretion.
Section 38 of the Criminal Law (Sentencing) Act 1988 (SA)
It was submitted by counsel for Mr Pointon that the magistrate should have utilised section 38 of the Sentencing Act and suspended the sentence of imprisonment. Section 38 of the Act allows the court, if it thinks that good reason exists for doing so, to suspend a sentence of imprisonment on the condition that the defendant enter into a bond of good behaviour and any other conditions prescribed by the court.[28]
[28] Criminal Law (Sentencing Act) 1988 (SA) s38(1)
There are no set criteria for determining whether ‘good reason’ exists in favour of suspending a sentence. The circumstances of each case must be taken into account. However, in relation to some offences, such as driving whilst disqualified or breaching bail conditions, the need to provide deterrence and punishment for wilful defiance of the law will mean that suspension of imprisonment may not be appropriate.[29]
[29] Coombe v Douris (1987) 47 SASR 324; Eldridge v Bates (1989) 51 SASR 532
Given Mr Pointon’s criminal antecedents and the nature of the present offending and having regard to section 86A of the Criminal Law Consolidation Act the magistrate was not in error in failing to suspend the sentence of imprisonment. However, it is to be observed that Mr Pointon has served one month of the sentence imposed before being released on bail pending the determination of this appeal.
Section 38(2a) of the Criminal Law (Sentencing) Act 1988 SA
Counsel for Mr Pointon further submitted that the sentencing magistrate erred in failing to exercise his discretion under section 38(2a) of Sentencing Act. Section 38(2a) provides:
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.
In Police v Carusi[30] it was held that it is a sentencing error for the court to overlook section 38(2a) in a case in which it could be applied:
[T]he magistrate overlooked section 38(2a) of the Sentencing Act. That section is an important provision that may be of particular utility when a first offender is to be sentenced to an immediate term of imprisonment. The magistrate should have considered this section. His failure to do so was an error. Using this section would have allowed him to impose a short period of imprisonment followed by a bond on terms devised to improve the appellant’s prospects of rehabilitation.
[30] [2002] SASC 240 at [24]
This was Mr Pointon’s first custodial sentence. Courts are reluctant to impose lengthy sentences of imprisonment on persons who have not served terms of imprisonment in the past. Section 38(2a) allows the court to impose a short term of imprisonment and then suspend the remainder of the term. This approach can be particularly useful when sentencing an offender who has committed a number of offences in the past attracting non-custodial penalties. Section 38(2a) should have been considered. A reconsideration of the possible application of the subsection is necessary.
It was also necessary for the sentencing magistrate to consider Mr Pointon’s prospects for rehabilitation when determining an appropriate sentence. For example, in Humphreys v Police[31] Duggan J held that a partially suspended sentence may be appropriate where it is desirable that the offender be released from custody in order to undergo psychiatric treatment. Duggan J made the following observations:
I am also of the view that it would be inappropriate to suspend the entire sentence. However I think it is essential that the appellant undergo some form of psychiatric treatment and, for this purpose, I propose to direct that pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 the appellant serve two months imprisonment and that he then be released upon entering into a recognisance to be of good behaviour for the remainder of the term of 9 months and that during that time he undergo such psychiatric or other treatment recommended by the Sexual Offenders Treatment and Assistance Programme.
[31] Humphreys v Police (2000) 208 LSJS 383 at 385
In the present case, it was accepted by the Crown that the magistrate did not appear to have had adequate regard to the rehabilitation of Mr Pointon. The magistrate did not impose a sentence that would address Mr Pointon’s underlying alcohol and drug dependency problems and his need for assistance in dealing with past trauma in his life. For these reasons the sentence imposed should be set aside. It is appropriate for this Court to re-sentence Mr Pointon.
Re-Sentencing
In the ordinary course the circumstances of this case suggest that it would be appropriate to impose a term of imprisonment but utilise the power in section 38(2a) of the Sentencing Act to order that only part of that term be served in prison and the remainder be suspended.
Having regard to the circumstances of Mr Pointon’s offending, his criminal and personal antecedents, his prospects of rehabilitation, the need for general and personal deterrence and his pleas of guilty, his contrition and remorse it is appropriate to fix a term of imprisonment of six months. In so doing a reduction of two months has been made on account of his plea, contrition and remorse.
Pursuant to section 38(2a) it would have been appropriate to order that Mr Pointon serve one month in prison and that the remainder of the term of imprisonment be suspended. However, as earlier observed Mr Pointon spent one month in custody before he was granted bail pending appeal. In this circumstance good reason exists to wholly suspend the term of imprisonment on Mr Pointon entering into a bond on appropriate terms as to supervision and treatment.
It is in the interest of the community and Mr Pointon that his rehabilitation be assisted by supervision, counselling and treatment for a period of 18 months. The terms of the bond are to require Mr Pointon to undergo such courses of treatment for drug and alcohol dependency and such other courses as may be directed.
The order of the court is that the appeal is allowed and the sentence of imprisonment of eight months is set aside. The appellant is sentenced to a term of imprisonment for six months. The sentence is to be wholly suspended on Mr Pointon’s entry into a bond.

[2004] SASC 4

21 January 2004