Police v DENG - [2017] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v DENG
[2017] SASC 151
Judgment of The Honourable Justice Kelly
20 October 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
Prosecution appeal against a sentence imposed by a Magistrate. The respondent was sentenced for a number of offences including two counts of driving while disqualified and breach of a good behaviour bond. That bond was entered into by the respondent as a result of being convicted of driving while disqualified and included a suspended sentence of seven days imprisonment. The respondent breached that bond by, among other things, once again driving while disqualified. His explanation for driving on that occasion was that he was going to get food for his girlfriend.
The Magistrate found proper grounds to excuse the breach and extended the term of the bond by three months. For the drive while disqualified charges the Magistrate imposed a single penalty of 31 days home detention. The appellant complains that the Magistrate erred in finding proper grounds to excuse the breached bond and erred in principle in ordering that the sentence of 31 days imprisonment be served home detention.
Held (allowing the appeal):
1.      The Magistrate erred in his approach to the question of whether there were proper grounds to excuse the breach of the suspended sentence bond by failing to adequately address the fact that there was no compelling reason provided by the respondent on each occasion for him to be driving and failing to address the issue of whether the driving by the respondent in those circumstances evidenced a dismissive attitude to the previous orders.
2.      In the circumstances it would be unjust to impose any further sentence for the two offences of driving while disqualified, however it is in the interests of justice that the respondent be required to serve some time in custody.
3.      The sentence of the Magistrate excusing and extending the bond set aside. The order of suspension of the sentence of seven days imprisonment revoked.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 33BB, s 58, referred to.
R v Buckman (1988) 47 SASR 303; Police v Nissen (2014) 120 SASR 50, applied.
Police v Vannarath [2015] SASC 187; Johnson v SA Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995); Reynolds v R (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, 27 October 1995), considered.

POLICE v DENG
[2017] SASC 151
Magistrates Appeal: Criminal
KELLY J.

This is a prosecution appeal against a sentence imposed by a Magistrate on 31 May 2017.
On that date the respondent was sentenced for a number of offences which included theft of a mobile phone, two counts of driving while disqualified, failing to comply with a bail agreement and driving with a prescribed concentration of alcohol in his blood.
The respondent was also sentenced for the breach of two bonds entered into in the Magistrates Court, one of which included a sentence of imprisonment for seven days, suspended.
The appeal is against the Magistrate’s decision to excuse the breach of the suspended sentence bond and against the sentence imposed in respect of the two charges of driving while disqualified for which the respondent was sentenced to 31 days imprisonment ordered to be served on home detention.
The appellant complains that the Magistrate erred in finding proper grounds to excuse the breach of the bond entered into by the respondent for the offence of driving while disqualified and erred in principle in ordering that the sentence of 31 days imprisonment for the two offences of driving while disqualified be served on home detention.
Background
On 17 June 2016 the respondent was convicted of the offence of driving while disqualified on 25 January 2016 (the first drive while disqualified charge). For that offence he was sentenced to seven days imprisonment which was suspended upon the respondent agreeing to enter into a 12 month good behaviour bond.
Prior to that date the respondent had been charged with the theft of a mobile phone and had entered into a bail agreement which included a condition that he was not to enter certain areas in the Adelaide CDB. On 22 November 2016, the respondent pleaded guilty to breaching that agreement by entering the Adelaide CBD on 9 October 2016. On that date he also pleaded guilty to the charge of theft.
On the same date, 22 November 2016, the respondent also pleaded guilty to driving a vehicle while having a prescribed concentration of alcohol in his blood and driving a motor vehicle while disqualified on 14 May 2016 (the second drive while disqualified charge).
On 23 January 2017 the respondent pleaded guilty to driving a motor vehicle while disqualified on 3 September 2016 (the third drive while disqualified charge).
When the respondent came to be sentenced by the Magistrate on 31 May 2017 he admitted that the breach of bail and the third drive while disqualified charge, committed on 3 September 2016, breached the suspended sentence bond he had entered into on 17 June 2016. On that date the Magistrate dealt with the breached suspended sentence bond, and a second breached bond, and then sentenced the respondent in relation to the second and third drive while disqualified charges, the theft charge, the breach of bail and the charge of driving while having a prescribed concentration of alcohol in his blood.
The Magistrate’s sentence with respect to the second breached bond, the theft charge, the breach of bail and the charge of driving while having a prescribed concentration of alcohol in his blood is not the subject of this appeal.
The Magistrate excused the breach of the bond entered into on 17 June 2016 and then extended the term of that bond by a period of three months pursuant to s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act).
For the second and third drive while disqualified charges committed on 14 May 2016 and 3 September 2016, the Magistrate imposed a single penalty of 31 days imprisonment to be served on home detention.
The reasons of the Magistrate
The Magistrate correctly observed that the less serious breach of the suspended sentence bond was the offence of breach of bail which was committed on 9 October 2016. He then turned to consider the second breach of the suspended sentence bond constituted by the commission of the third offence of driving while disqualified which was committed on 3 September 2016.
As that breach could not in any circumstances have been described as trivial, the Magistrate appears to have immediately proceeded to consider whether there were proper grounds upon which the breach could be excused under the provisions of s 58(3) of the Sentencing Act.
His Honour made no finding as to whether the third offence of driving while disqualified represented a dismissive attitude to the disqualification or was otherwise contumacious. He did however observe that the offence was committed only two and a half months after he had entered into the suspended sentence bond in June 2016.
The Magistrate then observed that the respondent had made some positive changes in his life since the commission of the offence in September 2016:
When I take into account the circumstances you were in, bearing in mind that you were a young man with a heavily pregnant partner for the first time in that position and the very positive changes that have happened since last September in your attitude, in your relationship, your home life, the young child you have and your attitude towards the use of alcohol, in my view, I think it would be disproportionately harsh to order that you serve the 7 days in prison with all the consequences that may have for your work, your partner and your home life.
The Magistrate then found proper grounds to excuse the breach of the bond and ordered that the bond be extended by a period of three months until 16 September 2017.
The Magistrate then turned to the more serious charges of driving while disqualified and made the following observations:
I will deal next with the two drive disqualified charges. The first in time is from 14 May 2016. That is a first offence for the purpose of penalty because that drive disqualified for which you were given a suspended sentence was not dealt with until a month later in court. I bear in mind the explanation of how that offence came about. You were moving the car, parking it in a different position and you drove it a short distance. It is a first offence, but it is second in time. You had already been stopped by the police in relation to a drive under suspension charge from earlier that year in January. In my view there should be a sentence of imprisonment for that offence and there will be; I will impose on that file and the other drive disqualified file from 3 September a single sentence of imprisonment. If I were to deal with you separately for the drive under suspension, count 2 on 14 May 2016, there would be a starting point of a sentence of imprisonment of 14 days. Starting point means the sentence before reduction for your plea of guilty.
The second drive disqualified matter is the one from 3 September 2016. You drove in the circumstances I explained earlier. That is a second offence because it occurred after your conviction and sentence for the other drive disqualified in June last year.
Bearing in mind the circumstances, the sentence I would impose on that if I dealt with it separately will be less than it would usually be for a second offence. The starting point would have been on that matter one month imprisonment.
For the two offences of driving while disqualified the Magistrate imposed one sentence pursuant to s 18A of the Sentencing Act. After reducing the sentence by 30 per cent for early pleas of guilty, he imposed a sentence of 31 days imprisonment before saying:
As I said on an earlier occasion, I do not consider that sentence should be suspended in the way that you received a suspended sentence last year because of your continued pattern of driving under disqualification.
Accordingly the Magistrate ordered that the sentence be served on home detention pursuant to s 33BB of the Sentencing Act. The respondent has now served that sentence.
Discussion
For the following reasons this appeal must succeed.
The Magistrate’s reasons disclose a number of errors in the approach to sentencing for the two offences of drive while disqualified as well as the Magistrate’s approach to the question of whether there were proper grounds to excuse the breach of the bond under s 58(3) of the Sentencing Act. I shall deal first with the issue of whether there were proper grounds disclosed for excusing the breach of bond.
Section 58 of the Sentencing Act states as follows:
58—Orders that court may make on breach of bond
(1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a)     may, if the bond requires the probationer to pay a sum in the event of non-compliance with a condition of the bond, order that the probationer pay the whole or a part of that sum;
(b)     may order a guarantor to pay the whole or a part of the amount due under the guarantee;
(c)     may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii)if the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, refrain from taking any action in respect of the failure;
(d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
…
(3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a)     may refrain from revoking the suspension; and
…
In R v Buckman[1] the Full Court considered the approach to be taken in deciding whether there are proper grounds to excuse a breach of bond under the equivalent section to s 58(3).[2]
[1] (1988) 47 SASR 303.
[2] Offenders Probation Act 1913 (SA) s 9. The provisions are substantially the same for present purposes.
In Buckman the Court observed the clear legislative policy that a breach of a suspended sentence bond should result in an offender serving a suspended sentence. King CJ observed that the Court will not lightly interfere with the ordinary consequence of a breach of a bond.
In the course of the judgment King CJ explained the operation of the equivalent of s 58(3) as follows:[3]
The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue.
[3] R v Buckman (1988) 47 SASR 303 at 304.
Since the decision in Buckman there have been a number of cases which suggest that in determining whether there are proper grounds the court may consider a defendant’s personal circumstances in an exceptional or special case. For example, in Johnson v SA Police[4] Debelle J said:
The reference in s 58(3) of the Sentencing Act to ‘proper grounds upon which the failure should be excused’ is very wide. That provision has been inserted by the Parliament because it is not possible to envisage all circumstances which might arise. From time to time there will be special or exceptional reasons why, notwithstanding a breach of a bond, the failure should be excused. In R v Buckman (supra), Jacobs J examined the operation of the legislative antecedents of s 58(3) and 58(4). In respect of the predecessor of 58(3), he said (at 307): “proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed” and (at 308) that the reasons for the breach “must lie primarily in the nature of the breach itself.” I do not think that his Honour was purporting to limit the operation of subs (3) or was intending to state that the proper grounds should be related only to the nature of the breach. The words of subs (3) are not so limited.
They give the court the discretion not to revoke the suspension whenever the court is satisfied that proper grounds upon which the failure should be excused exist.
Thus, if a probationer is able to demonstrate that there are special or exceptional circumstances which pertain either to himself personally or otherwise relate to the breach of the bond, it is appropriate to have regard to them in determining whether the suspended sentence should be revoked. Plainly that discretion will not be lightly exercised. To do so would be manifestly inconsistent with the legislative policy. In that respect, it is relevant to repeat the comments of Perry J in Lawrie v R (1992) 59 SASR 400 at 403: “To excuse or vary the consequences of the breach of bond, the grant of which resulted in the suspension of a term of imprisonment, has a tendency to undermine the integrity of the sentencing process generally. It follows that the power to do so should be exercised sparingly, and only in cases where proper grounds have clearly been made out or where genuinely special circumstances exist.” It is for that reason that I have suggested that there must be special or exceptional circumstances which should excuse the failure to comply with the bond. In this respect I do not seek to alter the terms of subs (3), which refers to “proper grounds”. I seek to indicate that which might constitute such grounds.
[4] (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995) at 4-5.
Later, in a subsequent decision, Reynolds v R,[5] Debelle J clarified what he meant by his earlier remarks in Johnson:
In the course of his remarks the Sentencing Judge suggested that there was an inconsistency between the decision of the Court of Criminal Appeal in R v Buckman (1988) 47 SASR 303 and in my own judgment in Johnson v South Australian Police (22 June 1995, unreported, Judgment No S5135), and suggested that I took a view contrary to the view expressed by Jacobs J in Buckman’s Case. That is to misstate the effect of the decision in Johnson v South Australian Police. That decision acknowledges the force of the observations of Jacobs J in Buckman’s Case but indicates that His Honour, at least as I understand his reasons, did not intend to state that the words of s 58(3) excludes consideration of the circumstances of the offender. As Johnson’s Case emphasises, there have to be very special or exceptional circumstances to justify not revoking a suspended sentence.
[5] (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, 27 October 1995).
Recently, in 2015, Nicholson J in Police v Vannarath[6] observed:
There are authorities to the effect that, notwithstanding King CJ’s reference to the character or circumstances of the breach, there will be occasions where a defendant’s personal circumstances, of an exceptional or special nature, might be relevant to the question of “proper grounds”.[7] In this case, the Magistrate relied solely on the fact that she had already decided to suspend the prison sentence to be imposed for the breaching offence. This cannot amount to “proper grounds” on any understanding of section 58(3)(a).
(footnote in original)
[6] [2015] SASC 187 at [62].
[7] Johnson v SA Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995), Reynolds v R (Unreported, Court of Criminal Appeal of South Australia, 27 October 1995).
Interesting though the discussion is as to whether a defendant’s personal circumstances are relevant to the issue of proper grounds in any given case, I do not consider that it is necessary to consider that issue any further as, on the view which I take of the facts here, the respondent’s personal circumstances were not of such an exceptional or special nature as to justify the course which the Magistrate took.
The Magistrate referred to the personal circumstances of the respondent stating:
You are now 22 and you have a very good work record. You are working at the moment and that is to your credit, you should feel proud of that. You have, I think, had some struggles with how you use alcohol and in what situations you use alcohol; and alcohol, not on every occasion, but on a number of occasions, has brought you into trouble with the police. I am glad to read in the report that you understand that you need to do something about that. It is up to you when and where you drink, but clearly the way that you used alcohol in the last 12 to 18 months was bad, bad for you and bad for others. I think, from what I have heard and from what I have read, that you have gone through a lot of growing up in recent times because you are working, you are in a good relationship with your partner and you and your partner have become parents for the first time. You have a young child. I take all of those things into account and in a broad sense, in a general way, they guide the type of penalty that I am going to impose today.
…
When I take into account the circumstances you were in, bearing in mind that you were a young man with a heavily pregnant partner for the first time in that position and the very positive changes that have happened since last September in your attitude, in your relationship, your home life, the young child you have and your attitude towards the use of alcohol, in my view, I think it would be disproportionately harsh to order that you serve the 7 days in prison with all the consequences that may have for your work, your partner and your home life.

The report referred to by the Magistrate was a pre-sentence report prepared by a community corrections officer who had interviewed the respondent on 11 May 2017 for the purpose of reporting to the Court. During the interview the respondent accepted that his alcohol use had been problematic for a long period of time and that he was open to attending and engaging in any counselling or treatment services recommended by either the Department for Correctional Services or the Court for his alcohol issues.
Significantly the Magistrate did not address the important issue as to whether the offending which gave rise to the suspended sentence bond was disproportionate to the offending which breached the bond. The fact is that the offending of driving while disqualified which led to the suspended sentence was serious, but the breaching offence was arguably even more serious because it was the third occasion when the respondent had driven while disqualified. As such, it was a serious and deliberate breach of the orders made earlier.
In these circumstances I consider that the Magistrate has erred in his approach to the question of whether there were proper grounds to excuse the breach.
In addition to that difficulty, I consider that there is also error demonstrated in the Magistrate’s approach to the imposition of sentence for the two offences of drive while disqualified.
The circumstances of the second drive while disqualified offence committed on 14 May 2016 were that the police, in response to complaints from members of the public of a white Toyota sedan driving in an area while the driver was intoxicated, stopped the respondent’s vehicle and later submitted the respondent to a breath analysis test which revealed a concentration of 0.171 grams of alcohol in 100 millilitres of the respondent’s blood. When the respondent was interviewed and asked why he was driving while disqualified he admitted that he knew his licence was suspended and that he had been disqualified for previous drink driving offences, but his only explanation was that he was not thinking about it because of the alcohol in his system and he was just trying to park his car.
The circumstances of the third offence of drive while disqualified committed on 3 September 2016 were that the respondent’s vehicle was stopped in the early hours of the morning after the respondent was observed driving west on Grand Junction Road, Mansfield Park. On that occasion the respondent told the police that he had driven from Rosewater and was attempting to get food for his pregnant girlfriend. The Magistrate’s observation that “that is a good thing to do, but the decision you made and the way you went about it was the wrong one” fails to address the fact that there was no compelling reason provided by the respondent on either occasion for the respondent to be driving.
Nor did the Magistrate address the important issue of whether the driving by the respondent in those circumstances evidenced a dismissive attitude to the previous orders.
In Police v Nissen[8] this Court provided authoritative guidance on the proper approach to sentencing for the offence of driving while disqualified. Importantly Kourakis CJ (David J agreeing) said:[9]
[27]The feature of an offence of driving whilst disqualified from holding a licence, or whilst a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving whilst holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender’s personal circumstances.
[28]The measure of an offender’s attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach.
[29]It can generally be inferred that a person who drives when disqualified, or whilst holding a suspended licence, after having been convicted of an earlier offence, has a contempt for or, at least, a dismissive attitude to orders of disqualification or suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence.
[30]It follows that, as a matter of principle, sentences of immediate imprisonment will often be justified in the case of first offenders who show little regard for orders of disqualification or suspension. As for repeat offenders like the appellant, it is difficult to contemplate circumstances which, consistently with the matters of general principle to which I have referred, would justify a non-custodial sentence.
[8] (2014) 120 SASR 50.
[9] Police v Nissen (2014) 120 SASR 50 at [27]-[30].
To my mind the failure of the Magistrate to properly address the issue of whether there were in fact proper grounds to revoke the suspension of the suspended sentence led to a skewed approach to the imposition of the sentences for both offences of driving while disqualified. Indeed, s 33BB(2)(a)(ii) expressly stipulates that a home detention order must not be made if a defendant is about to serve another term of imprisonment.
The tenor of the remarks made in Nissen and the earlier authorities leading to that decision demonstrate the seriousness of the offence of driving while disqualified and the importance that general and specific deterrence plays in sentencing a person who repeatedly breaches an order of disqualification.
To my mind, all of these considerations in this particular case militated against the imposition of sentences pursuant to s 33BB of the Sentencing Act.
Had the Magistrate approached the question of the revocation of the suspended sentence bond in the correct fashion, I consider it would have almost inevitably led to the breach not being excused and the respondent being required to serve a short period of imprisonment. That is what should have happened, and regrettably is what must now happen.
The errors made by the Magistrate necessitate the intervention of this Court.
There is however the consideration of double jeopardy which I have taken into account when determining the appropriate course to take in relation to the sentence for the two offences of driving while disqualified. A period of some five months has already elapsed since the respondent was sentenced. The respondent has now completed the sentence of 31 days home detention imprisonment.
In the circumstances, I consider that it would be unjust to now impose any further sentence for these two offences.
However, I do consider that the interests of justice require that the respondent serve at least some time in custody. That consideration is best served by revoking the suspended sentence and ordering that the respondent serve the seven days imprisonment imposed by the previous Magistrate.
The order of the Magistrate extending the bond until 16 September 2017 is set aside.
The suspension of the term of imprisonment of seven days imposed by the previous Magistrate is revoked. That sentence is to be served.
For the reasons I have given, I do not propose to interfere with the sentences imposed for the two offences of driving while disqualified.