POLICE v GATES - [2007] SASC 237

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GATES
[2007] SASC 237
Judgment of The Honourable Justice David
27 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - DRIVING OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Criminal law – Magistrates Appeal – prosecution appeal – appeal against sentence – whether sentence was manifestly inadequate – theft – unlawful possession – breach of bail – driving an unregistered motor vehicle – driving whilst disqualified – guilty plea – time spent in custody – two months imprisonment – suspended sentence – conviction without further penalty – prior criminal history – appeal allowed.
Bail Act 1985 (SA) s 17; Criminal Law Consolidation Act 1935 (SA) s 134(1); Criminal Law (Sentencing) Act 1988 (SA) s 15, s 18A; Motor Vehicles Act 1959 (SA) s 9(1), s 91; Summary Offences Act 1953 (SA) s 41(1), referred to.

POLICE v GATES
[2007] SASC 237
Magistrates Appeal

DAVID J. This is a prosecution appeal against a sentence imposed by a magistrate.
The respondent pleaded guilty in the Magistrates Court sitting at Port Adelaide to a number of counts contained on three Complaints and one Information. I set out the charges to which he pleaded guilty by reference to the various Complaints and the Information.
Complaint dated 1 November 2005
One count of the theft of two car number plates between 8 and 10 October 2005, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA), and one count of unlawful possession of three car number plates on 10 October 2005, contrary to s 41(1) of the Summary Offences Act 1953 (SA).
Complaint dated 10 January 2006
One count of failing to comply with a term or condition of a bail agreement on 14 December 2005, contrary to s 17 of the Bail Act 1985 (SA). This breach involved the respondent driving without a licence when it was a condition of his bail that he not drive while unlicensed.
Complaint dated 20 July 2006
One count of driving an unregistered motor vehicle, contrary to s 9(1) of the Motor Vehicles Act 1959 (SA), one count of driving a motor vehicle while disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act (both of these offences occurred on 19 July 2006), and four counts of failing to comply with a term or condition of a bail agreement occurring between 19 June and 10 July 2006, contrary to s 17 of the Bail Act. These breaches related to the respondent’s failure to report as required by his bail agreement.
Information dated 29 January 2007
Two counts of failing to comply with a term or condition of a bail agreement occurring on 3 November 2006 and 25 January 2007, contrary to s 17 of the Bail Act and one count of unlawful possession occurring on 25 January 2007, contrary to s 41(1) of the Summary Offences Act. The breaches of bail related to the respondent leaving his home detention address without permission.
The Sentence
In sentencing, the magistrate divided the various offences into groups. The first group included the charges of theft, unlawful possession and the breaches of bail. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) the magistrate imposed one sentence, imprisoning the respondent for a period of two months, but suspending that upon him entering into a bond. In arriving at that penalty the magistrate’s starting point was six months, but that was reduced to two months for the time he had already spent in custody and his pleas of guilty.
In relation to the second group of offences, namely driving an unregistered motor vehicle and driving whilst disqualified, the magistrate convicted without further penalty.
The appellant now argues that both penalties were manifestly inadequate.
Personal Circumstances of the Respondent
At the time of sentencing the respondent was aged 38 years and had an extensive criminal history. His antecedents include numerous offences, both for dishonesty offences and offences involving a motor vehicle, including five convictions for driving while disqualified. When sentenced on 28 February 2007 the respondent had been in custody since 29 January 2007 and he had previously spent a month in custody in relation to these offences.
Circumstances of the Offences
In light of my ultimate decision, I only wish to consider the circumstances of the charge of driving whilst disqualified. In sentencing, the magistrate did not go into any detail about that offence but merely said:
For the charges of having an incorrect number plate on 10 October 2005; and driving an unregistered vehicle whilst under disqualification on 19 July 2006, which driving I find was not contumacious, I convict with no further penalty.
The submissions which were put to the magistrate by counsel for the respondent, about which there is no disagreement, were that on the day in question the respondent was driving with a friend to the Port Adelaide Court. The car experienced mechanical difficulties. His friend was late for court so he left the respondent with the car and asked him to park it. The respondent only drove the car about 20 metres, from where he started it to where he parked it. He was then apprehended by the police. The car was unregistered.
Arguments on Appeal
The appellant argues that the magistrate was wrong in finding that the driving was not contumacious, and that to convict without penalty was erroneous. He argues that there was no proper basis for doing so pursuant to s 15 of the Criminal Law (Sentencing) Act. That section states:
15—Discharge without penalty
(1)     Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—
(a)    without recording a conviction, dismiss the charge; or
(b)    upon recording a conviction, discharge the defendant without penalty.
(2)     A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.
The appellant argues that the offence of driving whilst disqualified in the circumstances of this case could not be classified as being “so trifling that it is inappropriate to impose any penalty”. The appellant also submits that the magistrate did not take into account the respondent’s previous history of like offending.
Counsel for the respondent argues that although the magistrate did not specifically refer to it, it could be said that the two months the respondent spent in custody accounts for the sentence for driving whilst disqualified. In other words, as I understand the argument, even though two months was reduced from the head sentence resulting in the suspended sentence, nevertheless that was time he spent in custody and the magistrate gave him that benefit when convicting him without further penalty.
Conclusion
As I have indicated, I do not wish to deal with the offences for which the magistrate gave a suspended sentence. In my view the appeal must be allowed because, in these circumstances, the sentence of merely convicting without penalty in relation to driving whilst disqualified is not only manifestly inadequate but also wrong in principle. Even allowing for the fact that the magistrate might be correct in classifying the driving as “not contumacious”, presumably because of the short distance travelled, nevertheless it was a deliberate act and the respondent merely had to refuse his friend’s request to move the car. The offence could not be classified as one that comes within s 15 of the Criminal Law (Sentencing) Act.
It is very difficult to assess whether the magistrate directly or indirectly gave some benefit to the respondent for the time spent in custody on that charge. The magistrate clearly and specifically gave the respondent the benefit of time spent in custody in relation to those offences which were grouped under s 18A of the Criminal Law (Sentencing) Act and for which a suspended sentence was imposed. However, whether that period played some part in the magistrate’s decision not to impose any further penalty for driving whilst disqualified is hard to ascertain.
I would therefore set aside the sentence in relation to all of the charges. The reason I do that is that as there were a large number of varying charges before the magistrate and there appeared to be some form of sentencing package of which the driving whilst disqualified was only one aspect. As the magistrate has erred in relation to the sentence imposed in relation to the driving whilst disqualified, I cannot say how a correct approach to sentencing on that count may impact on the other sentences. In my view the whole sentencing process has miscarried.
I allow the appeal. I set aside the sentences imposed for all the charges. I remit the matter to a differently constituted Magistrates Court for re-sentencing.