Police v Brookman

Case [2006] SASC 378

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v BROOKMAN

[2006] SASC 378

Judgment of The Honourable Justice Layton

20 December 2006

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - DRIVING OFFENCES

Criminal Law - Prosecution appeal against sentence imposed by Magistrates Court under s 42 of the Magistrates Court Act 1991 (SA) - Particular offences - Driving offences - Driving whilst disqualified - Motor Vehicles Act 1959 (SA) s 91(5) - Respondent pleaded guilty to driving a motor vehicle on a road while there was present in his blood a prescribed concentration of alcohol and driving whilst disqualified - The driving whilst disqualified was the third offence of that type - The Magistrate fined the respondent $2000 in relation to the driving whilst disqualified - Appellant argued sentence imposed was manifestly inadequate - Application of principles enunciated in Police v Cadd & Ors - Failure by the Magistrate to make any specific finding about whether the driving was 'contumacious' - Whether offending should have been characterised as 'contumacious' - Whether respondent had a 'valid reason' to drive - Whether Magistrate gave enough weight to prior record and principles of deterrence - Held: Magistrate erred in finding that the driving was not contumacious - The imposition of a non-custodial sentence was manifestly inadequate - Appeal allowed - Respondent re-sentenced.

Criminal Law (Sentencing) Act 1988 (SA) s 10; s 38; Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 91(5), referred to.
Everett v The Queen (1994) 181 CLR 295; Maxwell (1998) 102 A Crim R 379; Police v Cadd & Ors (1997) 69 SASR 150; R v Osenkowski (1982) 30 SASR 212, applied.
Dinsdale v The Queen (2000) 202 CLR 321; DPP v Ottewell [1970] AC 642; Griffiths v R (1977) 132 CLR 293; Johns v Police [1998] SASC 6729; Police v Hill [2005] SASC 458; R v Hayes (1987) 29 A Crim R 452; R v Hicks (1987) 45 SASR 270; Sheean v Police [1999] SASC 187; Veen (No 2) (1998) 164 CLR 465; York v R (2005) 221 ALR 541, discussed.
Bates v Police (1997) 70 SASR 66; Eldridge v Bates (1989) 51 SASR 532; DPP v Leach (2003) 139 A Crim R 64; Police v Trill [2003] SASC 199; R v Allpass (1993) 72 A Crim R 561; Police v Castelluzzo (1997) 193 LSJS 13; White v Police (2000) 76 SASR 430, considered.

POLICE v BROOKMAN
[2006] SASC 378

Magistrates Appeal:  Criminal

LAYTON J:

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Police v Brookman [2006] SASC 378
Case
[2006] SASC 378
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CaseChat Overview and Summary

In Police v Brookman, the police appealed against a sentence imposed by the Magistrates Court of South Australia on the respondent, who had been found guilty of driving while disqualified and driving with a prescribed concentration of alcohol in his blood. The appeal focused on the adequacy of the sentence, specifically a $2000 fine, imposed on the respondent, who had a history of similar offences. The legal issues centered around whether the Magistrates Court had erred in its discretion by imposing a non-custodial sentence and whether the sentence was manifestly inadequate given the respondent's prior convictions and the need for deterrence.

The Supreme Court of South Australia, in allowing the appeal, found that the Magistrates Court had erred in not characterizing the driving as 'contumacious' and in not adequately considering the principles of deterrence and the respondent's prior record. The court held that the $2000 fine was manifestly inadequate, particularly given the respondent's repeat offending history and the importance of maintaining sentencing standards for driving while disqualified. The court emphasized that the special considerations applicable to repeat offenders, as outlined in Police v Cadd & Ors, warranted a custodial sentence. The court also noted the public interest in maintaining appropriate sentencing standards for such offences and the need for personal and general deterrence.

The Supreme Court allowed the appeal and re-sentenced the respondent to a term of imprisonment, considering the respondent's history of similar offences and the necessity for deterrence. The court imposed a sentence towards the lower end of the available range to balance the need for deterrence with the principles of restraint in appellate courts. The decision underscored the importance of maintaining adequate sentencing standards for driving while disqualified and the need for appropriate consideration of prior offending history and deterrence in sentencing decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this case the respondent was a repeat offender, having received suspended terms of imprisonment for driving whilst disqualified on 21 October 2002 and on 17 November 1997. He was therefore liable to be imprisoned for two years for this offence. In relation to repeat offenders, Mullighan J stated in Cadd:[30]Different considerations must apply to the offender who is before the Court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.[30] Police v Cadd & Ors (1997) 69 SASR 150, 178-9.Conclusion Having regard to the case law and the circumstances of this case, I consider that the sentence of a $2000 fine imposed by the learned Magistrate was manifestly inadequate. This is indeed a ‘rare and exceptional’[31] case where this Court needs to intervene for the reasons expressed in Osenkowski, particularly in light of the respondent’s offending history, and the special importance of personal and general deterrance for this offence.[32] It is a matter of important public interest that the adequacy of sentencing standards be maintained for this offence. In my view, these standards would be severely eroded if the learned Magistrate’s sentence were allowed to stand.[31] Everett v The Queen (1994) 181 CLR 295 and Police v Cadd & Ors (1997) 69 SASR 150, 156-9.[32] Eldridge v Bates (1989) 51 SASR 532. Having concluded that the sentence imposed was manifestly inadequate, I turn now to consider what the appropriate penalty should be. In addition to the special considerations attaching to prosecution appeals, this is an instance where the respondent has been told that he will not have to go to prison. As King CJ stated in R v Hicks: [33]When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating. [33] (1987) 45 SASR 270, 273. See also R v Hayes (1987) A Crim R 452, 469 per Kirby P. As a consequence, any imposition of an immediate sentence of imprisonment in this case, would require very strong arguments in favour of the maintenance of justice or the protection of the public.[34][34] R v Hicks (1987) 45 SASR 270, 273. Further, in Dinsdale v The Queen[35] Kirby J noted that where a Crown appeal against sentence is justified: …it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellants “tinkering” with sentences.[35] (2000) 202 CLR 321, 340-1. See also R v Allpass (1993) 72 A Crim R 561, cited with approval in Sheean v Police [1999] SASC 187, [48]. There was in my view, nothing about the circumstances of the appellant or of the offence which justified the unusual course of a fine or a non-custodial sentence. Even if the offending was not contumacious, as the learned Magistrate appears to have found, the imposition of a custodial sentence was entirely appropriate, and in my view should have been imposed. The fact that the respondent was a repeat offender, having committed the offence on two prior occasions, indicates a continuing attitude of disobedience to the law which makes his offending all the more deserving of an immediate term of imprisonment.[36] [36] Maxwell (1998) 102 A Crim R 374, 378-9 and Police v Trill [2003] SASC 199, [21].

Ratio Decidendi

Legal Principle Established

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