Police v Chilton - [2014] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v CHILTON
[2014] SASCFC 76
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice David)
22 July 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - WHAT IS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
The respondent, Mr Chilton, was convicted in the Magistrates Court of the offences of exceeding the speed limit and driving whilst disqualified. The Magistrate sentenced the appellant to a term of imprisonment for six weeks for driving whilst disqualified. On appeal the appellant complained that the Magistrate erred in imposing an immediate term of imprisonment, with a single Judge of this Court setting aside that sentence and instead imposing a fine and ordering community service.
The Police appeal against the decision of the Judge on the grounds that the judge erred in setting aside the sentence of the Magistrates Court when it was not attended by any appealable error and that the sentence imposed by the Judge was manifestly inadequate.
Held per Kourakis CJ (David J agreeing) allowing the appeal:
The exercise by the Magistrate of his sentencing discretion was not vitiated by an appealable error (Kourakis CJ at [2]). The Judge erred setting aside the sentence imposed by the Magistrate and in finding that the Magistrate had failed to give proper consideration to all relevant matters. The Judge also erred in finding that the sentence was manifestly excessive.
The sentences imposed in the Magistrates Court can only be set aside for error in accordance with House v The King. It is not a House v The King error for a sentencing judge to appear to focus almost solely on one form of sentence over another (Kourakis CJ at [20]).
There is need for personal and general deterrence for offences of this kind that a recidivist offender with no compelling reason to drive can expect to be imprisoned notwithstanding the statutory and common law principle, that imprisonment is a sentencing option of last resort (Kourakis CJ at [21]).
Mr Chilton’s personal circumstances do not outweigh the relative importance of general and personal deterrence in the circumstances of this offending. The penalties imposed by the Judge were manifestly inadequate when measured against Mr Chilton’s repeated offending and applicable maximum penalty (Kourakis CJ at [32]). The sentence imposed by the Judge was so inadequate that to allow it to stand would seriously undermine sentencing standards for offences of this kind committed by recidivists (Kourakis CJ at [33]).
The appeal is allowed and the Judge’s orders set aside, with the appeal against the sentence imposed in the Magistrate’s Court dismissed (Kourakis CJ at [35]). The sentence imposed by the Magistrate is to be reinstated.
Held per Gray J (dissenting):
The Magistrate by necessary inference treated Mr Chilton’s offending as contumacious. For this reason, the Magistrate’s discretion was exercised without having regard to all material facts (at [62]).
It was open to the appellate Judge to re-exercise the sentencing discretion (at [62]).
The approach adopted by the Judge when resentencing can be described as being particularly merciful. However, there was no error on the part of the Judge (at [63]).
In many ways, the sentence crafted by the Judge may be seen as an effective way to punish Mr Chilton (at [64]).
Motor Vehicles Act 1959 (SA) s 91; Criminal Law (Sentencing) Act 1988 (SA) s 38; Magistrates Court Act 1991 (SA) s 5, referred to.
Police v Cadd and Others (1997) 69 SASR 150; Chilton v Police [2013] SASC 205; WorkCover Corp (SA) v Musolino (2007) 100 SASR 147, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"general deterrence", "double jeopardy"

POLICE v CHILTON
[2014] SASCFC 76
Full Court: Kourakis CJ, Gray and David JJ

KOURAKIS CJ: The respondent, Mr Chilton, was sentenced to six weeks imprisonment by a Magistrate on his conviction of the offence of driving whilst disqualified, contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) (the MVA). A single Judge of this Court (the Judge) set aside that sentence and imposed instead a fine of $1500, and ordered that the respondent perform 80 hours of community service. The Police appeal against the decision of the Judge on the grounds that:
·the Judge erred in setting aside the sentence of the Magistrates Court when it was not attended by any appealable error; and
·the sentence imposed by the Judge was manifestly inadequate.
I would allow the appeal. The exercise by the Magistrate of his sentencing discretion was not vitiated by appealable error. In particular the Judge erred in finding that the Magistrate had failed to give proper consideration to all of the relevant matters, and in finding that the sentence was manifestly excessive.   Moreover, the penalty imposed by the Judge is manifestly inadequate when measured against:
(a) Mr Chilton’s repeated offending against s 91(5) MVA;
(b)     The maximum penalty of two years applicable to recidivists;
(c)     The poor excuse for his offending.
The Judge was exercising this Court’s supervisory appellate jurisdiction over sentences imposed in the Magistrates Court. Even though this is a prosecution appeal against sentence, it should be allowed and the sentence imposed by the Magistrate reinstated in order to maintain adequate sentencing standards for repeat offenders against s 91(5) of the MVA and to emphasise the importance of general and personal deterrence in sentencing recidivists. My reasons follow.
The Offence
The appellant was disqualified from holding a driver’s licence for a period of 12 months from December 2012 because he had accumulated more than the allowable number of demerit points. He became unemployed in February 2013. He was later offered employment as a rigger in Renmark. He expected the work to last for ten days and that he would receive $4000 in wages. He planned to stay at the Renmark Hotel. The respondent was to commence his employment on 14 May 2013 and planned that his de facto partner would drive him to Renmark on the morning of that day.
On the evening of 13 May 2013, his partner became ill. It transpired that in the morning she was still unwell and not fit to drive. The appellant decided to drive himself but was detected speeding on the Karoonda Highway at a speed of 128 kilometres per hour in a 110 kilometre per hour zone. He was arrested and his vehicle impounded. Mr Chilton was conveyed to Renmark where he was bailed in time to take up his employment, which he completed in due course. His wife caught a bus to Renmark at the completion of his work contract and drove him home.
After his return to Adelaide, Mr Chilton eventually secured full-time employment in a structural engineering firm. He continues to work the afternoon shift from 4 pm each day until midnight. He takes public transport to work, but is collected from work either by his partner or others, because public transport stops at 11.37 pm.
Mr Chilton is 27 years of age. In May 2013, Mr Chilton and his partner purchased a house. They have mortgage repayments of $280 per week. They have a daughter who is aged two and a half years. At the time he was sentenced by the Magistrate, Mr Chilton’s partner, who by then had been diagnosed with cervical cancer, was expecting the birth of their second child who was born on 10 October 2013. She had worked as a childcare worker, but was not working at the time of sentencing.
In October 2006, Mr Chilton was convicted of driving with an excess blood alcohol level and on 15 May 2007 was convicted of driving during the period of disqualification imposed for that offence and imprisoned for 28 days, which sentence was suspended upon him entering into a three-year bond to be of good behaviour. On 1 March 2008 Mr Chilton’s licence was again disqualified for driving with an excess blood alcohol level. The Magistrates Court record indicates that when Mr Chilton was dealt with for that offence he was warned about the consequences of driving whilst disqualified. Despite that warning, Mr Chilton again drove whilst disqualified on 21 June 2008 and was convicted of his second driving under disqualification offence on 18 September 2008. He was sentenced to six weeks and 14 days’ imprisonment, but was released after serving 14 days of that sentence on entering into a bond for six weeks, pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA).
The Magistrate’s Remarks
In sentencing Mr Chilton, the Magistrate said:
[1]I take all those things into account in particular that you have a mortgage, you have a wife who is pregnant and due to deliver soon and has had poor health and you were in Riverland for the purpose of work, trying to earn enough money to make sure you could keep up your mortgage payments. I accept everything Mr Colthorpe has said. You were in a difficult position. You were only trying to help your family in the circumstances in which you drove. I am sure however that you would have known you were disqualified. I do not see how you could not have been aware you were disqualified and you knew very well what the consequences of driving under disqualification were because you had been caught twice in the past. In 2007 you were convicted of a charge of driving under disqualification and you were imprisoned for a period of 28 days which was suspended. Then in 2008 you were again convicted of a charge of driving under disqualification for which you received sometime in imprisonment then. You cannot say you did not know what the consequences were. You would have known the consequences. You chose to drive and you were caught. You chose to drive and you were stopped by police. I think that means you have to expect a term of imprisonment again. I will return to that in a moment.
…
[3]In relation to the charge of driving under disqualification, you will be convicted. Bearing in mind your previous history and the terms of imprisonment imposed in the past I think a term of imprisonment is appropriate again. Because you have been convicted twice before an appropriate term of imprisonment would have been two months. You have pleaded guilty so you are entitled to a discount and I will reduce that to six weeks. The burning issue is whether I should suspend it or not. I understand the effect a term of imprisonment will have on you in relation to your income, your wife and the difficulties which will befall you if you are imprisoned. I understand all that. I also have to uphold the law. You are a man who comes here on the third charge of driving under disqualification. You have been given some considerable leniency by the court in the past in terms of whether you should serve or not. My view is that as hard as it is, because this is your third time it would not be appropriate for [to] suspend that term of imprisonment. You are ordered to serve six weeks commencing from now.
A number of observations must immediately be made about the Magistrate’s remarks.
First, the four sentences at the very start of his Honour’s reasons show that he was acutely aware of Mr Chilton’s personal circumstances and his reasons for driving. The Magistrate expressly accepted the submission of Mr Chilton’s counsel that he drove because he was in a “difficult position” and that he was “only trying to help [his] family” in driving. Secondly, the Magistrate did not expressly describe the offence as contumacious. It is an arid exercise to speculate about whether that was his Honour’s view. The question is whether his Honour had regard to all relevant circumstances, and he plainly did. Thirdly, the Magistrate correctly identified that considerations of personal and general deterrence weighed heavily in favour of a custodial sentence because it was Mr Chilton’s third offence of driving whilst disqualified. Fourthly, the Magistrate was very concerned by what he described as the “burning issue” of suspension and ultimately decided that “as hard as it is”, a balance of the personal and objective circumstances led him to exercise his discretion against suspension.
The Magistrate’s approach cannot be faulted. I would have exercised the discretion in the same way.
Intervention by the Judge
The Judge accepted that Mr Chilton’s conduct could be described as contumacious because he was well aware of the importance of complying with orders of disqualification, having twice before been sentenced to a suspended period of imprisonment for driving whilst disqualified. However, the Judge went on to describe contumacious behaviour as a relative and not an absolute concept, and accepted that the circumstances which led to the appellant making the decision to drive on this occasion moderated the contumacious nature of his behaviour.
The Judge also accepted that driving at an excessive speed displayed a poor attitude towards the requirement imposed on all citizens to observe the road rules.
The emphasis on the binary classification of offences of drive disqualified as either contumacious or not is unfortunate. The approach taken by the Judge in this case illustrates how problematic that division is. In Police v Cadd and Others,[1] Mullighan J defined contumacious as “a total disregard of the disqualification and disobedience to the authority which imposed it”. As the Judge observed, and for the reasons he gave in [21] of his judgment, it is not entirely accurate or fair to characterise the appellant’s driving as contumacious in that sense. However, I understand paragraphs [20] and [21] of the Judge’s reasons to correctly accept that the appellant’s offending showed very little regard for the order of disqualification, particularly given his recidivism, even though it did not fall within the very narrow definition of contumacious given by Mullighan J in Cadd.
[1] (1997) 69 SASR 150.
The addendum to the judgment of Doyle CJ in Cadd was meant as a simple rule of thumb. However, the distinction between contumacious and non contumacious offending on which it is founded has been overlaboured. The point of the addendum was to give guidance to Magistrates to the effect that in the narrow band of contumacious offending, as defined by Mullighan J, imprisonment should ordinarily be imposed. However, in sentencing for offences of this kind, more generally, it is the attitude of the offender to the order of disqualification, as shown by the circumstances of, and reasons for, the offending, which is significant. The culpability of the offender and relative weight which should be given to punishment and personal and general deterrence will be much affected by that attitude, for the reasons I recently gave in Police v Nissen.[2]
[2] [2014] SASCFC 77.
The Judge gave the following reasons, the salient elements of which I have underlined, for interfering with the sentencing discretion of the Magistrate:[3]
[34]Before exercising any of the sentencing Before exercising any of the sentencing options contained within s18(a) the Court must be satisfied that “good reason exists for departing from the penalty provided” by s91(5) of the Motor Vehicles Act. I accept the Crown submission that it is unlikely that the Magistrate was unaware of the availability of a fine as a sentencing option. Nevertheless, I am satisfied that the Magistrate failed to give proper consideration to this option. His Honour placed too much weight on the repeated nature of the appellant’s offending and too little weight on the many mitigatory factors as earlier described. In so doing, his Honour appeared to focus almost solely on the question of whether or not the prison term should be suspended without considering whether or not a sentence of imprisonment was warranted.
[35]Ordinarily, imprisonment should be a last resort and the correct sentencing approach is to eliminate all other sentencing options before considering imprisonment. A substantial fine, in appropriate circumstances, can serve a number of the necessary functions of criminal sentencing. In the circumstances of this case, a substantial fine would serve strongly to punish the appellant, to promote deterrence (personal and general) to mark the Court’s and the public’s disapproval of the appellant’s conduct and to assist in supporting the effectiveness of licence disqualification as a penalty itself. I am satisfied that the appellant has the capacity to pay a substantial fine without undue prejudice to the welfare of the appellant and his dependants. During submissions the Court was told that the appellant now has ongoing full time work for which he receives take home pay in the order of $1,400 per week. His mortgage commitment is $300 per week.
[36]The appellant made a single foolish mistake driven by his family’s difficult personal circumstances at the time. There is no indication that the appellant has reverted to his earlier pattern of flouting the motor vehicle and driving laws when he was considerably younger. He will complete his period of disqualification sometime during this month; to this point, it would seem, without further incident. For all these reasons, I am satisfied that good reason exists in this case for departing from the penalty provided for in s91(5) of the Motor Vehicles Act. The Magistrate erred in ordering a term of imprisonment. The appeal is allowed and the prison sentence ordered by the Magistrate set aside.
(Footnotes omitted, underlining added)
[3] Chilton v Police [2013] SASC 205 at [34]-[36].
If the underlined sentences in [34] were meant literally, the Judge exceeded the bounds of appellate review of exercises of the sentencing discretion. It is not an appealable error, in accordance with the principle in House v The King,[4] that a sentencing Judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways.
[4] (1936) 55 CLR 499.
Over familiarity with the decision in House v The King can at times obscure the strictness of the limited grounds for the appellate interference it prescribes. The grounds on which a discretion can be set aside are analogous to the grounds of judicial review. Neither the exercise of a judicial discretion, nor the making of an administrative decision, are vitiated by giving a relevant matter less or more weight than the judge before whom the decision is impugned would have given it. The Magistrates Court is a Court of Record.[5] Its judgments are final orders. They are not provisional opinions subject to the approval of this Court. The sentences imposed in the Magistrates Court can only be set aside for error in accordance with House v The King.
[5] Magistrates Court Act 1991 (SA), s 5.
The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King.

To return to the Judge’s reasons, it is not a House v The King error for a sentencing judge to “appear to focus almost solely” on one form of sentence over another. Of course, it is an error not to consider all of the properly available sentencing options but it must be remembered that a judicial officer’s failure to mention them all does not, of itself, make out that error. The Judge expressly accepted the Crown submission that it was unlikely that the Magistrate was unaware of the availability of a fine or a community order as sentencing options. I would go further and say that there is no possibility at all that a Magistrate who has presided over one, let alone many, traffic lists, is not aware that a fine can be imposed for the offence of drive disqualified. It is not at all surprising that a Magistrate working in a busy court would not take the time to expressly mention that penalty in the circumstances of this case.
The underlined observations of the Judge in paragraph [35] also require some qualification. It can be accepted that imprisonment is a sentencing option of last resort. However that, common law and statutory, principle is not applied by a sentencing judicial officer in each individual case free of the consideration of its application to offences of the kind in question by other courts and the Full Court of this Court in particular. The reasons of this Court in Cadd, which was recently considered by this Court in Police v Nissen, show that such is the need for personal deterrence and general deterrence for offences of this kind that a recidivist offender with no compelling reason to drive can, in the ordinary course, expect to be imprisoned notwithstanding that statutory and common law principle. To put it bluntly, so great is the need to ensure that disqualification orders operate as an effective sanction in ensuring compliance with the rules of the road that imprisonment will, generally, be resorted to in the case of offenders who repeatedly flout judicial or administrative orders of disqualification.
I also observe that the Judge’s view of the adequacy of a fine and community work order to personally deter Mr Chilton might be doubted given the failure of the short period of imprisonment served in 2008 to have that effect.
The underlined sentence in paragraph [36] offers no justification for setting aside the Magistrate’s decision. The question was not whether the Judge on appeal was satisfied that there was good reason to impose a fine instead of imprisonment. The question was whether a sentence of imprisonment was a manifestly excessive penalty. The Judge did not so hold and, in my opinion, for good reason. Indeed, I do not accept that a Magistrate reasonably exercising the sentencing discretion could have imposed a fine. For reasons which I develop below, such a disposition is manifestly inadequate for a recidivist offender in the circumstances of this case. Be that as it may, it certainly cannot be that a moderate sentence of six weeks’ imprisonment against a maximum penalty of two years’ imprisonment for a third offence of drive disqualified, in the absence of a compelling reason to drive, is manifestly excessive.
For the above reasons, I would hold that the Judge erred in setting aside the sentence imposed by the Magistrate.
The Judge’s Penalty – Manifestly Inadequate
It is necessary to elaborate on why I say that Mr Chilton’s reasons for driving were not compelling. The reasons in Cadd show that a requirement to drive in order to secure or maintain employment is not a strongly mitigatory factor for the offence of drive disqualified. With respect, that is plainly right. Every day in the Magistrates Court, and in the District Court, orders for disqualification are made, compliance with which will necessarily result in a loss of employment and consequential financial hardship. The Parliament has declined to legislate for “work only” disqualifications. The legislature has taken the position that the harsh economic consequences of disqualification are a necessary part of ensuring compliance with the traffic rules. If the courts were to generally take the view that securing employment is a strongly mitigating factor for offences of drive disqualified, the effectiveness of disqualification orders would be undermined and the Parliament’s legislative choice not to allow work only disqualifications would be subverted.
Mr Chilton’s particular reasons for driving were not convincing. He made no attempt to find alternative means of travel to Renmark, even though he knew from the night before that his wife was unwell. He may, for example, have been able to secure the assistance of one of the friends who now drive him home from his current employment. His employer in Renmark, who after all kept his position open until after he was released from custody, may well have been prepared to wait for Mr Chilton to arrive by bus or might have been able to provide alternative transport. However, such was Mr Chilton’s attitude to compliance with the disqualification order that he saw no need to even attempt to make alternative arrangements to cover for the obvious risk that his partner might not be well enough to drive him to Renmark.
The maximum penalty for a subsequent offence of drive disqualified is two years’ imprisonment. This was Mr Chilton’s third offence. Neither the fully, nor partially, suspended sentences imposed for his previous offending deterred him from the commission of this offence.
The illness of Mr Chilton’s wife naturally evokes much sympathy. However, no material was put before the Magistrate about her diagnosis, her prognosis and future medical treatment. Nor was it suggested that Mr Chilton could not continue to hold the work he had found because of her illness. This Court gave Mr Chilton an opportunity to put further material of that kind before it. It appears from that material that Mr Chilton’s partner does not need, and is not receiving, ongoing treatment. Indeed, tests have yet to conclusively confirm that the lesion of her cervix was malignant. Mr Chilton retains the employment to which I earlier referred. Having received that material it is clear that Mr Chilton’s personal circumstances simply do not outweigh the relative importance of general and personal deterrence in the circumstances of this offending.
Allowing a Prosecution Appeal Against Sentence
Notwithstanding my conclusions that the Magistrate’s exercise of his discretion was sound, that the Judge had no basis on which to set aside the sentence of imprisonment and finally that the penalties imposed by the Judge were manifestly inadequate, it remains necessary to consider whether the appeal should nonetheless be dismissed because it is a prosecution appeal against sentence. In Cadd this Court held that the principles governing prosecution appeals against sentence to the Court of Criminal Appeal, often referred to as the Everett principle or rule against double jeopardy, applied to prosecution appeals against sentences imposed in the Magistrates Court, even in the absence of a requirement to obtain permission. The residual operation of the rule against double jeopardy was considered by the High Court in the statutory context of New South Wales in R v Green.[6] However, in South Australia the application of the double jeopardy principle in appeals against sentence to the Court of Criminal Appeal has been confined, by legislative intervention, to the question of permission and does not operate to modify the sentence which would otherwise be imposed if permission has been granted and the sentence is set aside for error.[7] In the light of that legislative amendment, the continued application of the double jeopardy principle to Magistrates Courts’ decisions may be seen as anomalous.
[6] (2011) 244 CLR 462, see also R v JW (2010) 77 NSWLR 27.
[7] R v V, AJ [2012] SASCFC 10 per Gray J [16]-[20].
In this case we are one step removed from a prosecution appeal against a sentence imposed at first instance. The respondent, Mr Chilton, was sentenced to imprisonment by the Magistrate, which sentence was, on my holding, wrongly set aside by the Judge. It is not obvious to me why the Everett principles should apply at all to this situation. It was Mr Chilton who brought the appeal to this Court to review the sentence imposed on him by the Magistrate and it is that appeal which has lead to the “vexing” of which he now complains. Nonetheless, in WorkCover Corp (SA) v Musolino, in similar circumstances to this case, Duggan J, with whom White and Kelly JJ agreed, said:[8]
The present case differs from Cadd in that this is an application for permission to appeal following a successful appeal to a judge by the respondent. Nevertheless, there does seem to be an element of double jeopardy in the present circumstances and it is this consideration which provides the principal reason for placing prosecution appeals in a special category.
In my view, the prospect of the respondent in the present case being required by an order of this court to serve a sentence which a judge of the court has suspended justifies the application of the Everett principles. Accordingly, intervention should be regarded as exceptional. However, justification for interference may be found in cases where there is demonstrated error and where it is “necessary to avoid manifest inadequacy or inconsistency in sentencing”.[9]
[8] (2007) 100 SASR 147 at [43]-[44].
[9] Griffiths v The Queen (1977) 137 CLR 293; Malvasso v The Queen (1989) 168 CLR 227 at 234.
Be that as it may, ultimately the Full Court in Musolino restored the sentence of immediate imprisonment imposed by the Magistrate reversing the single Judge’s suspension of that sentence. Duggan J allowed the appeal notwithstanding the principles of double jeopardy because the suspension of the sentence by the single Judge “resulted in a manifestly inadequate penalty” which required the Full Court to intervene because of “the importance of maintaining adequate standards of punishment”.[10]
[10] WorkCover Corp (SA) v Musolino (2007) 100 SASR 147 at [77].
For the reasons I have already given, the sentence imposed by the Judge is manifestly inadequate when measured against Mr Chilton’s repeated offending and the maximum penalty of two years applicable to recidivists like him. Mr Chilton’s reasons for driving are not especially compelling. To the contrary, they are relatively common place. Nor do his personal circumstances make imprisonment especially onerous in his case.
The sentence imposed by the Judge is so inadequate that to allow it to stand would seriously undermine sentencing standards for offences of this kind committed by recidivists. In this respect, it is significant that the sentence has been imposed by a Judge of this Court on an appeal from a sentence of imprisonment imposed by a Magistrate. A manifestly inadequate sentence imposed by a Magistrate may be allowed to stand by reason of the double jeopardy principle without eroding the sentencing standards. However, the Judge, in the exercise of this Court’s supervisory jurisdiction, has provided reasons which, if the judgment is allowed to stand, support the imposition of a penalty which, in my respectful opinion, is manifestly inadequate. The difficulty in declining to intervene with the sentence imposed by the Judge in this case is compounded because there was no warrant to intervene in the first place for the reasons I have given in paragraphs [17]-[24] above.
Moreover material placed before the Court suggests that offences of this kind continue to be committed all too frequently.[11]
[11] See Police v Nissen [2014] SASCFC 77, [38]-[48].
Conclusion
I would allow the appeal and set aside the Judge’s orders, ordering instead that the appeal against the sentence imposed in the Magistrate’s Court be dismissed.
GRAY J.
This is an appeal by the police against sentence.
The defendant and respondent, Ben Leigh Chilton, entered pleas of guilty to the offences of driving at an excessive speed and driving while disqualified from holding or obtaining a driver’s licence. On 23 September 2013, a Magistrate convicted him of the offence of driving at an excessive speed and ordered him to pay prosecution costs, a victims of crime levy and a vehicle impounding fee. The defendant was otherwise discharged without further penalty in relation to that offence. In respect of the offence of driving while disqualified, the Magistrate, having regard to the fact that the defendant had been twice convicted of the offence on earlier occasions, imposed an immediate term of imprisonment of six weeks. Later the same day, the defendant was granted bail pending the prosecution of the appeal before this Court.
On 23 December 2013, a Judge of this Court allowed the defendant’s appeal in respect of the sentence imposed for the offence of driving while disqualified and set aside the sentence imposed by the Magistrate. In lieu, the Judge fined the defendant $1,500.00 and ordered him to perform 80 hours of community service within the ensuing 12 months. The police have appealed to this Court against the orders of the Judge.
Background
On 14 May 2013, the defendant committed the offences of exceeding the speed limit, contrary to rule 20 of the Australian Road Rules (SA) and driving while disqualified, contrary to section 91(5) of the Motor Vehicles Act 1959 (SA).
The defendant is a qualified rigger. In 2013, he lived in suburban Adelaide in a home that he shared with his long term domestic partner and their child. His partner was several months pregnant with their second child. He had been unemployed for some time and under pressure to keep up the mortgage payments on their home. Shortly before committing the offences, the defendant was offered work as a rigger in Renmark. This work was expected to last 10 days and the defendant was to be paid about $4,000.00. He arranged for his partner to drive him to Renmark in order to start the ten days of work and then drive back at the end of the ten day period to bring him home. However, the defendant’s partner fell ill the night before the intended journey and on the following morning was not fit to drive. The defendant was due to commence work at 10.00 am. He decided, in view of the circumstances, to drive himself to Renmark. On the way, he had a flat tyre, which put him behind schedule. In an effort to make up for lost time, he exceeded the speed limit and was stopped by the police. He was frank and cooperative with the police and admitted that he was disqualified from driving.
Preliminary Issues
Two preliminary issues arose for consideration on the appeal – double jeopardy and fresh evidence.
Double Jeopardy
During submissions on the appeal, a question arose as to whether the principles concerning double jeopardy had application to this appeal. The Solicitor-General, appearing on behalf of the police, submitted that those principles had application. He drew attention to the decision of this Court in WorkCover Corporation of South Australia v Musolino,[12] where, in similar circumstances, it was resolved that the High Court decision in Everett[13] applied. Duggan J observed:[14]
In my view, the prospect of the respondent in the present case being required by an order of this Court to serve a sentence which a judge of the court has suspended justifies the application of the Everett principles. Accordingly, intervention should be regarded as exceptional. However, justification for interference may be found in cases where there is demonstrated error and where it is “necessary to avoid manifest inadequacy or inconsistency in sentencing”.
[Footnote omitted.]
Duggan J cited observations of members of the High Court in Griffiths[15] and Malvaso[16] in respect of the proposition in the last sentence of the above extract. The observations of Duggan J were applied by this Court in Papadopoulos, where Kelly J observed:[17]
Although this is a prosecution appeal it comes after a successful appeal by the respondent to a single judge of this Court.
The principles applicable to prosecution appeals against sentence in these circumstances were discussed in WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147. In that case, Duggan J at [44] held that the considerations relevant to prosecution appeals stated by the High Court in Everett v the Queen (1994) 181 CLR 296 apply in the case of prosecution appeals against a sentence imposed in the Magistrates Court, therefore intervention should be regarded as exceptional. However, justification for interference may be found in cases where there is demonstrated error and where it is necessary to avoid manifest inadequacy or inconsistency in sentencing.
In my view, the same considerations apply to the disposition of the issues which arise on this appeal.
[12] WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147, [41]-[44], White and Kelly JJ agreeing.
[13] Everett v The Queen (1994) 181 CLR 295, 299.
[14] WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147, [44].
[15] Griffiths v The Queen (1977) 137 CLR 293.
[16] Malvaso v The Queen (1989) 168 CLR 227, 234.
[17] Police v Papadopoulos [2008] SASC 325, [11]-[13].
The Solicitor-General submitted that as the police were seeking to set aside the orders of Nicholson J and to have the sentence imposed by the Magistrate reinstated, the appeal necessarily exposed the defendant to a form of double jeopardy. As a consequence, the Solicitor-General accepted that the following principle as enunciated in Everett applied:[18]
… [T]he deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation.
[18] Everett v The Queen (1994) 181 CLR 295, 299.
Fresh Evidence
During submissions on the appeal, counsel for the defendant informed the Court of events that have occurred since the defendant’s sentencing. The Court indicated that as the submissions were referring to matters of fresh evidence, affidavits should be filed setting out the relevant material.
The rules of practice that govern the reception of fresh evidence are well established. The receipt of fresh evidence is subject to certain conditions summarised in Dorning.[19] The general purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing Judge, or to explain facts which were before the sentencing Judge so as to put them in a new light. Dorning[20] has been approved and followed in later decisions of this Court.[21]
[19] R v Dorning (1981) 27 SASR 481, 488.
[20] R v Dorning (1981) 27 SASR 481, 488.
[21] R v C (2004) 89 SASR 270.
An affidavit from the defendant’s partner confirmed that they had been living together for eleven years and that there were two children of the relationship, a three year old and a child born on 9 October 2013. The defendant’s partner became aware of her pregnancy in February or March 2013. Early in the pregnancy, a routine medical examination revealed an abnormal reading that required testing at the cancer clinic. The relevant tests could not be performed during pregnancy. The tests were undertaken following the birth of the child. Those tests have led to a diagnosis of a high grade squamous lesion. According to a report of her general practitioner, the defendant’s partner has had follow up treatment at the Flinders Medical Centre with a surgical procedure being undertaken in February 2014 and with a follow up appointment scheduled for August 2014.

An affidavit from the defendant deposes that he obtained employment as a full time rigger with Samaras Structural Engineers on 1 July 2013. Apart from the two weeks’ work at Renmark, the defendant had been unemployed since February 2013 and had been ineligible to receive Centrelink benefits. The defendant explained that his partner had not worked for over 12 months and that his employment was the only source of income for the family.
This affidavit material, in my view, meets the relevant test for the admission of fresh evidence. It provides more detailed and further information on the defendant’s partner’s state of health. The affidavits confirm in a little more detail what was put to the Magistrate about the defendant’s need to take up the employment for the two weeks at Renmark. More importantly, the affidavits provide evidence as to the defendant’s ongoing rehabilitation through the obtaining of full time employment in July 2013, which employment he has maintained to the present time. It is to be understood that the only source of income for the family was from the defendant’s employment.
Previous Hearings
The Magistrate’s Remarks
The Magistrate noted the defendant’s earlier history of driving while disqualified. Those offences occurred in 2007 and 2008. On the second occasion, the defendant was imprisoned for a short period. The Magistrate observed that the defendant must have been well aware of the consequences of driving while disqualified and, accordingly, could expect a term of imprisonment. To the Magistrate’s mind, “the burning issue is whether [he] should suspend” the sentence of imprisonment that he proposed to impose of six weeks.
The Magistrate noted the personal circumstances of the defendant in the following terms:
I take all those things into account in particular that you have a mortgage, you have a wife who is pregnant and due to deliver soon and has had poor health and you were in Riverland for the purpose of work, trying to earn enough money to make sure you could keep up your mortgage payments. I accept everything Mr Colthorpe has said. You were in a difficult position. You were only trying to help your family in the circumstances in which you drove. I am sure however that you would have known you were disqualified.
…
… I understand the effect a term of imprisonment will have on you in relation to your income, your wife and the difficulties which will befall you if you are imprisoned. I understand all that. I also have to uphold the law. You are a man who comes here on the third charge of driving under disqualification. You have been given some considerable leniency by the court in the past in terms of whether you should serve or not. My view is that as hard as it is, because this is your third time it would not be appropriate for me [to] suspend that term of imprisonment. You are ordered to serve six weeks commencing from now.
In his remarks, the Magistrate did not refer at all to the defendant’s explanation that he had arranged for his partner to drive him to Loxton but that in the early hours of the morning, when they were to leave, she was pregnant, ill and unfit to drive.
The Judge on appeal noted the background circumstances of the offending in more detail in his reasons for judgment:[22]
The [defendant] was disqualified from holding a drivers licence in December 2012 for a period of 12 months. He became unemployed in February 2013 and, for some reason, was ineligible to receive Centrelink payments. At the time of the offending the [defendant’s] daughter was two and a half years old and his partner was pregnant and had been diagnosed with cervical cancer. As a consequence, she also had stopped working. The [defendant] and his partner had recently purchased a house and were struggling to meet their mortgage repayments. The [defendant] and his partner were experiencing very difficult financial circumstances and were under significant stress for this reason and because of the cancer diagnosis.
Shortly before committing the offences the [defendant] was offered work as a rigger in Renmark. This work was expected to last 10 days and the [defendant] was to be paid about $4,000. However, the [defendant] lived in the environs of Adelaide. As a consequence, and given that he was disqualified from driving at the time, he was booked to stay for the ten day period at a Renmark Hotel. It was intended that his partner would drive him to Renmark in order to start the ten days of work and then drive back at the end of the ten day period to collect him. However, she fell ill the night before the intended journey and on the following morning was not fit to drive. The [defendant] was due to commence work at 10am. He chose, in view of the circumstances, to drive himself to Renmark. On the way he had a flat tyre which put him behind schedule. In an effort to make up for lost time he broke the speed limit and was pulled over by the police. He admitted to the police that he was disqualified from driving. By all accounts he was frank and cooperative with the police.
[22] Chilton v Police [2013] SASC 205, [2]-[3].
The Judge first addressed the power of the Court to suspend a prison sentence, noting that this power was governed by section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA). That section provides:
Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
The Judge noted and applied the following explanation of section 38(1) provided by Peek J in O’Toole:[23]
This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.[24] The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[25] It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[26] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.
[23] R v O’Toole [2013] SASCFC 18, [50], Sulan J agreeing.
[24] Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J).
[25] R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530, 535 (Perry J).
[26] R v Wacyk (1996) 66 SASR 530, 535 (Perry J).
The Judge then turned to discuss the decision of this Court in Cadd.[27] The Judge summarised the pertinent factors when sentencing for the offence of driving while disqualified in the following terms:[28]
[27] Police v Cadd (1997) 69 SASR 150.
[28] Chilton v Police [2013] SASC 205, [14]
-     this offence is often to be characterised as including an element of defiance of the law;
-     those who commit this offence nullify the effect of the order of disqualification and defeat disqualification as a means of punishment:
-     The clear intention of parliament is that disqualification from holding a licence, which in today’s society is a very real punishment, be used in particular in the field of driving offences. Those who commit the offence tend to defeat parliament’s intention.
-     the offence of driving whilst disqualified is an offence for which deterrence must predominate when considering appropriate punishment;
-     the offence often will be committed by persons who have chosen to take a calculated risk rather than on the spur of the moment or without a thought to the consequences although, the deterrent effect of a sentence is likely to be ineffective with respect to those persons who commit the offence in these latter circumstances; and
-     whilst imprisonment is not to be imposed mechanically, the case would have to be exceptional before a sentence of imprisonment could be suspended and features which are run of the mill will not support suspension.
The former Chief Justice went on to observe:
[T]o my mind the most weighty factor of all is the element of deliberate disobedience of the law which is present in many of these cases, coupled with the effect that the wide spread commission of this offence has in undermining disqualification as an effective punishment.
[Footnotes omitted.]
The Judge also referred to the following observation of Mullighan J in Cadd:[29]
… I use the word “contumacious” in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at 542-543. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. …
[29] Police v Cadd (1997) 69 SASR 150, 179.
The Judge considered that the Magistrate expressed himself in terms that implied a finding that the defendant’s offending was contumacious. The Judge accepted that the defendant’s conduct could be described as contumacious, but then continued:
However, contumacious behaviour is a relative not an absolute concept. There will be occasions where behaviour still properly characterised as contumacious is less extreme or less serious when compared with behaviour on other occasions. Furthermore, as Doyle CJ pointed out in Nash v Police, the attitude of the offender to the disqualification is of particular significance. This attitude is to be determined by an assessment of the circumstances of the breach and the reason given by the offender for the breach. I accept that the circumstances which led to the [defendant] making the decision to drive on this occasion were such as to moderate the contumacious nature of his behaviour. The [defendant] found himself in a very difficult position when, as events transpired, his partner was unable to drive him to Renmark on the morning of the day in which he was due to start work. The [defendant] could have waited until a bus trip became available but the [defendant] would have arrived late for work and perhaps a day or more late. The [defendant] would have had to make his excuses concerning his partner’s late onset of illness and his other difficulties to his employer. It is not known what would have resulted had the [defendant] chosen that option. The [defendant] and his family were in very straitened financial circumstances. The [defendant] took the view that he could not afford to miss out on the Renmark work. In these circumstances, it would not be entirely accurate or fair to characterise this one foolish decision as indicating an attitude of “total disregard of the disqualification in disobedience to the authority which imposed it”.[30]
The [defendant] also relied on his personal circumstances in support of his case for a suspended prison sentence. I have already outlined in these remarks the nature of these personal circumstances. As I have explained, those circumstances as they existed at the time of the offending serve to moderate the contumacious nature of the [defendant’s] conduct. They also stand on their own account to be weighed in the balance when deciding the question of suspension.
[Footnotes omitted.]
[30] Vide Mullighan J in Police v Cadd at 179.
Importantly, in the above extracts it is plain that the Judge considered that the particular circumstances confronting the defendant and his explanation for driving moderated what would otherwise be the contumacious nature of his behaviour. In particular, I refer to the Judge’s conclusion that it would not be entirely accurate or fair to characterise this one foolish decision as indicating an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. I also refer to the following observation of the Judge:[31]
The [defendant] made a single foolish mistake driven by his family’s difficult personal circumstances at the time. There is no indication that the [defendant] has reverted to his earlier pattern of flouting the motor vehicle and driving laws when he was considerably younger. He will complete his period of disqualification sometime during this month; to this point, it would seem, without further incident. For all these reasons, I am satisfied that good reason exists in this case for departing from the penalty provided for in s91(5) of the Motor Vehicles Act. The Magistrate erred in ordering a term of imprisonment. The appeal is allowed and the prison sentence ordered by the Magistrate set aside.
[31] Chilton v Police [2013] SASC 205, [36].
The Judge then considered other penalties available apart from a term of imprisonment. The Judge took the view that, in the circumstances, the Magistrate had not given proper consideration to the option of fining the defendant and imposing an order for community service. Ultimately, this is how the Judge proposed to proceed and he allowed the appeal, set aside the sentence imposed by the Magistrate and imposed the earlier referred to fine and community service order.
The Appeal
It was the submission of the police that there was no error on the part of the Magistrate in his approach to the sentencing of the defendant and that it could not be said that the sentence imposed was outside the sentencing discretion. Accordingly, on the application of conventional principles, the appeal to the Judge should have been dismissed. It was contended in the alternative that if the Judge was correct to interfere, the absolute minimum sentence that could have been imposed was a suspended term of imprisonment. As noted above, the police accepted that for the appeal to be allowed, the police would have to satisfy the Court that the exceptional circumstances identified in Everett[32] had been established.
[32] Everett v The Queen (1994) 181 CLR 295.
The defendant submitted that the Magistrate had erred in two respects; by finding implicitly that the defendant’s conduct was contumacious and by failing to consider the alternative to imprisonment identified and adopted by the Judge on appeal. It was said that the fresh evidence tendered should be received and demonstrated the ongoing acute difficulties facing the defendant and his dependants in the event that he was imprisoned.
The Solicitor-General expressed some disquiet about the concept of contumacy discussed in Cadd[33] and suggested that the use of that concept was causing ongoing difficulties in the consideration of the offence of driving while disqualified by magistrates. The Solicitor-General encouraged this Court to revisit the issue that had divided the Court in Cadd and ultimately led to the compromise majority conclusion. I do not consider that the present appeal is an appropriate vehicle for such an enquiry. For my part, I do not necessarily agree that the decision in Cadd should be revisited at all. The majority view in Cadd was that one relevant enquiry to be undertaken is whether the conduct in question is contumacious and that such a conclusion would bear heavily on a decision to impose an immediate custodial sentence. On the other hand, if properly understood, the offending is not contumacious, then there is no reason why the Court should not, in the ordinary exercise of its discretion, suspend a term of imprisonment or impose some other penalty.
[33] Police v Cadd (1997) 69 SASR 150.
I agree with the observations of the Judge that the Magistrate by necessary inference treated the defendant’s offending as contumacious. I consider that it is relevant that the Magistrate made no reference to the explanation offered by the defendant as to why he was driving. This was directly relevant to whether the conduct was contumacious. I consider that for this reason alone, the Magistrate’s discretion was exercised without having regard to all material facts. I am strengthened in this view by the consideration that, of all the circumstances being advanced to warrant a sentence of other than a term of immediate imprisonment, this was the most important fact. Consequently, it was open to the appellate Judge to re-exercise the sentencing discretion.
The approach adopted by the Judge when sentencing, in my view, can be described as being particularly merciful. I do not consider, however, that there was any error on the part of the Judge. The principles earlier extracted from Everett,[34] to my mind, have application. The personal circumstances of the defendant and his family and their ongoing nature, warranted a merciful approach. In my view, the sentence imposed by the Judge was determined having regard to the sentencing principles in circumstances calling for mercy.
[34] Everett v The Queen (1994) 181 CLR 295.
It is to be recognised that the imposition of a substantial fine will be a heavy penalty for the defendant’s family, although one that can be paid as the defendant is now in full time employment. 80 hours of community service within a 12 month period will represent a significant inroad into the defendant’s annual leave and weekends. Community service will be a ready reminder to the defendant of his community responsibilities and his obligation to comply with the law. In many ways, the sentence crafted by the Judge may be seen as an effective way to punish the defendant.
Conclusion
For these reasons, I would dismiss the appeal.
DAVID J: I would allow the appeal. I agree substantially with the reasons of the Chief Justice and I agree with the orders he proposes.
In my view, the sentence of the Magistrate’s Court indicated no appellable error and the appeal judge was incorrect when indicating the sentencing magistrate “placed too much weight on the repeated nature of the appellant’s offending and too little weight on the many mitigating factors as earlier described”. Such an emphasis was well within the appropriate sentencing discretion of the Magistrate. I am also of the view that the appeal judge’s substituted sentence of a fine of $1,500 and an order for the respondent to perform 80 hours of community service was manifestly inadequate, bearing in mind the driving record of the respondent, which included two previous convictions for driving whilst disqualified.