Police v Dunne

[2011] SASC 229

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v DUNNE

[2011] SASC 229

Judgment of The Honourable Justice Gray

19 December 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - WHEN REQUIRED

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY

Police appeal against sentence - defendant pleaded guilty to offence of driving whilst disqualified committed in April 2011, and the offences of driving whilst disqualified and driving with excess blood alcohol committed in May 2011- Magistrate convicted defendant of each offence, fined the defendant $1500.00, disqualified him from holding or obtaining a driver's licence for a period of five years and sentenced the defendant to 11 months imprisonment, suspended on his entry into a good behaviour bond - where the defendant had a serious and long history of driving related offences - whether, having regard in particular to the defendant's criminal antecedents, the Magistrate in error in exercising discretion to suspend the term of imprisonment.

Held: Appeal allowed - sentence imposed by the Magistrate was manifestly inadequate - there was no good reason to suspend the sentence of imprisonment of 11 months - orders of the Magistrate set aside - in respect of the two driving whilst disqualified offences, defendant resentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to one term of imprisonment of nine months - in respect of the driving with the prescribed concentration of alcohol in his blood, defendant disqualified from holding or obtaining a driver's licence for a period of 10 years to commence on the expiration of the existing disqualification order - no pecuniary sum imposed.

Motor Vehicles Act 1959 (SA) s 91(5); Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 38(2a); Road Traffic Act 1961 (SA) s 47B(1)(a), referred to.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212, considered.

POLICE v DUNNE
[2011] SASC 229

Magistrates Appeal

GRAY J:

1. This is a Crown appeal against sentences imposed by a Magistrate. 

2. On 23 August 2011, the defendant and respondent, Alan Michael Dunne, pleaded guilty to the offence of driving whilst disqualified contrary to section 91(5) of the Motor Vehicles Act 1959 (SA). The offence was committed at North Adelaide on 20 April 2011. On the same occasion, the defendant pleaded guilty to the further offences of driving whilst disqualified and, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA), driving with the prescribed concentration of alcohol in his blood. These offences occurred at Barmera on 4 May 2011.

3. The defendant was convicted of each offence. On the charge of driving with excess blood alcohol the defendant was fined $1,500.00. On the charges of driving whilst disqualified, the Magistrate pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) imposed the one sentence for both offences, being a term of imprisonment of 11 months. The Magistrate exercised his discretion to suspend the sentence on the defendant’s entry into a supervised good behaviour bond. The terms of the bond required the defendant to attend for counselling, treatment and assessments as directed, in particular having regard to the defendant’s alcoholism. The defendant was disqualified from holding or obtaining a driver’s licence for a period of five years.

4. It was the submission of the police that the criminal antecedents of the defendant were such that the Magistrate’s exercise of discretion to suspend the sentence miscarried.  It was said that anything other than an immediate custodial term was manifestly inadequate.

5. The police accepted that a Crown appeal against sentence would only be granted in exceptional circumstances.  Where such an appeal, if successful, involves the prospect of imprisonment, the principles set out in Everett[1] are applicable notwithstanding that appeals of this type lie as of right.[2]  In those circumstances, prosecution appeals against sentence will only be justified in “rare and exceptional” circumstances.[3]  It was further accepted that the proper role for prosecution appeals was to enable courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected and occasionally to correct that which is so disproportionate to the seriousness of the crime as to shock the public conscience.

   [1]    Everett v The Queen (1994) 181 CLR 295.

   [2]    Police v Cadd (1997) 69 SASR 150.

   [3]    Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150.

6. The Magistrate, in extensive sentencing remarks, first addressed the circumstances of the offending.  He noted that the drive whilst disqualified offences were deliberate and, in the circumstances, contumacious and in defiance of the Court orders.  Fanciful reasons were proffered by the defendant.  He suggested that he was driving at North Adelaide because his partner who was with him had difficulty with street directions.  His reason for driving at Barmera was to show friends the location of his new accommodation.  Plainly, the defendant was having little or no regard to the orders of the Court and was prepared to act in direct disobedience of those orders.  On any view, this was serious offending. 

7. At Barmera, the defendant was grossly intoxicated.  He returned a reading of 0.205 grams of alcohol in 100 millilitres of blood. 

8. The offending occurred against the background of the defendant’s appalling criminal antecedents.  The defendant’s relevant prior offending commenced in November 1994 and continued until 21 December 2007.  In April 2008, he was sentenced in respect of the December 2007 offending.  At that time, he was disqualified from holding or obtaining a driver’s licence until 28 April 2013. 

9. His antecedent record discloses 14 prior offences for driving whilst disqualified, nine prior offences for driving with excess blood alcohol and driving under the influence, other road traffic offending including driving without due care, exceeding the speed limit, driving an unregistered vehicle, driving an uninsured vehicle and driving without number plates.  His antecedents also included two dishonesty offences.  His record discloses that on most occasions, the offences of driving under disqualification were accompanied by drink driving offending. 

10. The defendant was first imprisoned for 14 days in April 1995.  Thereafter, he was imprisoned for 28 days in May 1996, for five months in March 1998, for a further three months in March 1998, for 30 days in November 2000, for 16 months in June 2002, for 14 months in November 2004 and for five months and five days in April 2008.  These terms of imprisonment largely related to drinking driving and driving whilst disqualified offences.

11. The defendant was disqualified from holding or obtaining a driver’s licence for three years in April 1995, until further order in March 1998, for three years in November 2000, for three years and three months in June 2001, for six months in November 2004 and in April 2008, from December 2007 until 28 April 2013.

12. On the hearing of the appeal, a record from the Department of Motor Vehicles was tendered which established that the defendant has not held a driver’s licence since 1995.  A further antecedent report was also tendered which disclosed two offences of drink driving in Victoria prior to the first South Australian offence in 1994.

13. At the time of sentencing, the defendant was 57 years of age.  He suffered from the effects of a work related injury as well as from cardiac problems and asthma.  He was in receipt of a disability pension.  He was in a de facto relationship.  The Magistrate noted the submission of the defendant’s counsel that the defendant recognised his problems with alcohol abuse.  The Magistrate further noted that he had been informed in the body of the Court by the defendant that the defendant had been complacent about his alcohol problem and with taking steps to address his alcoholism.

14. The Magistrate acknowledged that the sentences imposed in the past on the defendant had had little effect by way of personal deterrence.  The Magistrate recognised the need for general deterrence and for the protection of the community.  However, the Magistrate appeared to be impressed by a report provided to the government by a former thinker in residence, Judge Peggy Hora.  In particular, he referred to an extract from her report to government that “punishment must not only fit the crime, it must fit the offender as well”.  This led the Magistrate to consider that a “therapeutic jurisprudential approach” should be adopted and that the interests of the defendant called for the suspension of the term of imprisonment that he proposed to impose.  It appears that the Magistrate was concerned that the approach taken in the past to the defendant’s offending had been unsuccessful and that a different approach should be adopted. 

15. It may be accepted that the Magistrate was concerned to adopt a different approach to the sentencing of the defendant.  The terms of the supervised bond were specifically designed to address the defendant’s alcohol related problems.  It is entirely problematic, however, as to whether this approach will have any effect on the defendant’s conduct in the future.  There was no evidence before the Court to support the view that “the therapeutic jurisprudential approach” designed by the Magistrate would have any prospect of success. 

16. During the course of the hearing, I discussed with counsel the prospect of utilising section 38(2a) and identified some of the advantages that could be said to flow from adopting that course. However, on reflection and having regard to all the circumstances, in particular the defendant’s appalling record and contumacious behaviour, I have reached the view that that course was not warranted.

17. In my view, the discretion of the Magistrate to suspend the term of imprisonment miscarried.  The Magistrate had no medical or other evidence before him to suggest that a supervised bond would have any impact on the defendant’s alcoholism or his contumacious behaviour.  There was in the circumstances no good reason for the Magistrate to exercise his discretion to suspend.  The defendant’s antecedents, his ongoing abuse of alcohol and his flagrant disobedience of orders of the Court precluded this course. 

18. It is of particular relevance that the offence of drive whilst disqualified at North Adelaide was not accompanied by an abuse of alcohol.  In other words, this was a flagrant and deliberate breach of an order of the Court without any explanation apart from the defendant’s attitude that he could act as he wished without regard to his legal obligations. 

19. Following the hearing of the appeal, a letter was provided to the Court concerning the courses undertaken by the defendant while under the supervision of the Department of Correctional Services concerning his apparent alcoholism.  Four two-hour courses are particularised and the following recent case note from the defendant’s community corrections officer was extracted:

    Alan is a chronic alcoholic.  He suffers with a heart condition and is on medication to control his angina.  Although the medication should not be mixed with alcohol, Alan continues to drink.  He has completed many D&A courses over the years both in the institution and in the community and states that although he will do them if directed, he will not make the changes required to change his life style.  

20. In my view, the penalties imposed by the Magistrate were manifestly inadequate.  There was no good reason to suspend the sentence of imprisonment of 11 months.  An immediate custodial term should have been imposed. 

21. The defendant should be disqualified from holding and obtaining a driver’s licence for a period of 10 years.  This disqualification is to be cumulative on the existing order of disqualification.  The defendant as a consequence of his alcoholism and of his defiant attitude to orders of the Court should not be permitted to drive at any time in the future unless there is medical evidence that he is free of alcoholism and able to control his behaviour.  As earlier mentioned, he has not held a driver’s licence since 1995.  The Registrar of Motor Vehicles should be provided with a copy of these reasons. 

22. Given the defendant’s antecedents, there must be the real possibility that he will not obey the orders of the Court that he not drive.  If he continues to behave in a contumacious manner and breach orders of the Court, there will be little alternative but for further orders for immediate imprisonment to be made.  The defendant remains a danger to the community if he cannot alter his ways.  The protection of the community is to my mind, in these circumstances, a paramount consideration.  Why should members of the community be exposed to the defendant’s ongoing criminal conduct?  This is an exceptional case and the appeal by the police should be allowed.  The sentence imposed by the Magistrate is manifestly inadequate. 

    Conclusion

23. I set aside the orders of the Magistrate. I resentence the defendant pursuant to section 18A of the Sentencing Act to the one term of imprisonment of nine months in respect of the driving whilst disqualified offending on 20 April 2011 and 4 May 2011.  In making this order, I have had regard to the defendant’s plea of guilty and to the partially served suspended sentence bond imposed by the Magistrate.

24. I order that the defendant attend within 48 hours at the police station at Berri for the purposes of surrender so that the term of imprisonment can take effect. 

25. In respect of the offence of driving with the prescribed concentration of alcohol in his blood, I order that the defendant be disqualified from holding or obtaining a driver’s licence for a period of 10 years to commence on the expiration of the disqualification order made in April 2008. Having regard to the order for immediate imprisonment and having regard to section 13 of the Sentencing Act, I consider it appropriate not to make an order for payment of a pecuniary sum.  Finally, I direct that a copy of these reasons be forwarded to the Registrar of Motor Vehicles.