Police v Chilton

Case [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…

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AGLC
Police v Chilton [2014] SASCFC 76
Case
[2014] SASCFC 76
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the police to the Supreme Court of South Australia against a sentence imposed by a single Judge of that Court. The appeal arose from a previous decision where the single Judge had allowed the respondent's appeal against a sentence of six weeks' imprisonment for driving while disqualified, substituting it with a fine of $1,500 and 80 hours of community service. The respondent had also been convicted of exceeding the speed limit, for which he received a discharge without further penalty.

The legal issues before the Court included whether the principles of double jeopardy applied to the police appeal against sentence, and the admissibility and relevance of fresh evidence concerning the respondent's personal circumstances. The Court was required to determine if the intervention sought by the police was exceptional, as required by the principles established in *Everett v The Queen*, and whether the fresh evidence warranted consideration in assessing the appropriateness of the sentence.

The Court considered that the principles of double jeopardy, as articulated in *Everett*, applied to prosecution appeals against sentence where the respondent had already been released from custody and permitted to resume their place in the community. Intervention was therefore to be regarded as exceptional, requiring demonstrated error and a necessity to avoid manifest inadequacy or inconsistency in sentencing. The Court also addressed the established rules for the reception of fresh evidence on appeal, which generally allows for the introduction of facts existing at the time of sentencing but unknown to the judge, or facts that cast a new light on existing evidence.

Ultimately, the Court allowed the police appeal, setting aside the single Judge's orders and dismissing the respondent's appeal against the sentence imposed by the Magistrate. This meant the original sentence of six weeks' imprisonment for driving while disqualified was reinstated.

Orders

Orders of the court

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Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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. 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

Ratio Decidendi

Legal Principle Established

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