Police v Hill - [2005] SASC 458

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v HILL
Judgment of The Honourable Justice Debelle (ex tempore)
25 November 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Prosecution appeal against sentence – respondent pleaded guilty to three counts driving whilst disqualified, one count speeding, one count failing to stop when asked and one count failing to truly answer – respondent subject to suspended sentence and bond at time of offending – all offences occurred on same day – magistrate ordered imprisonment but suspended the sentence – whether adequate evidence of mental health problems of respondent – held, magistrate erred in failing to request evidence of medical issues – not appropriate to interfere with sentence – appeal dismissed.
Motor Vehicles Act 1959 s 91; Road Traffic Act 1961 s 38, s 42; Criminal Law (Sentencing) Act 1988 s 38; Australian Road Rules r 20, referred to.
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 2 WAR 196; Everett v The Queen (1994) 181 CLR 295; Gallo v Dawson (1990) 93 ALR 479; Gikas v Police (1999) 202 LSJS 301; Hughes v National Trustees Executor & Agency Co of Australasia Ltd [1978] VR 257; Jackamarra v Krakouer (1998) 195 CLR 516; McPherson v Groeneveld (unreported, Supreme Court of SA, 21 February 1997, judgment no S6052); Police v Cadd (1997) 69 SASR 150; R v Hicks (1987) 45 SASR 270; R v Osenkowski (1982) 30 SASR 212; R v Secretary for Home Department; Ex parte Mehta (1975) 1 WLR 1087; R v Wacyk (1996) 66 SASR 530; Spakianos v Police (2000) 113 A Crim R 248, considered.

POLICE v HILL
[2005] SASC 458
Magistrates Appeal: Criminal

DEBELLE J. This is a prosecution appeal against sentence. On 20 September 2005 the respondent pleaded guilty in the Magistrates Court at Berri to a number of offences. There were three complaints. One complaint charged the respondent with
1.Driving a motor vehicle on the Sturt Highway over the speed limit of 110 km/h as indicated on the speed limit sign, contrary to rule 20 of the Australian Road Rules. It was alleged that the respondent had been driving at a speed of 150 km/h.
2.Failing to stop his vehicle when requested to do so by police, contrary to s 42 of the Road Traffic Act 1961.
3.Driving on the Sturt Highway whilst disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the Motor Vehicles Act1959.
All of these offences occurred on the Sturt Highway near Barmera in the early hours of 17 September 2005.
On a separate complaint the respondent was charged with two further offences. They were
1.Driving whilst disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the Motor Vehicles Act. That offence occurred on 17 September at Loveday after the offence had been committed on the Sturt Highway near Barmera.
2.Failing to truly answer questions asked by a member of the Police Force, contrary to s 38 of the Road Traffic Act.
On a third complaint he was charged with a third offence of driving whilst disqualified from holding or obtaining a driver’s licence. That offence had occurred on Vaughan Terrace at Berri on 17 September after the two earlier offences of driving whilst disqualified.
Also before the magistrate was an application to estreat a bond to be of good behaviour into which the respondent had entered on 17 February 2005. The respondent had been sentenced to a period of one month’s imprisonment for driving whilst disqualified from holding or obtaining a driver’s licence on 8 June 2004. The sentence was suspended upon the respondent entering into a bond to be of good behaviour for a period of 18 months. The offences which constituted the breach of the bond were the offences listed above which occurred on 17 September.
The magistrate convicted the appellant in relation to the three offences of driving whilst disqualified from holding or obtaining a driver’s licence. The magistrate ordered that the respondent be sentenced to 15 months imprisonment with a non-parole period of 12 months. She ordered that the sentence of imprisonment be suspended on the respondent entering into a bond to be of good behaviour for a period of two years in the amount of $300. In relation to all of the other offences, the magistrate ordered the respondent be convicted without further penalty. In relation to the breach of the bond, the magistrate found the breach proved and ordered the bond to be extended for a further period of six months.
After the respondent had committed the third offence of driving whilst disqualified, he was arrested and placed in custody on 18 September. He remained in custody until dealt with on 20 September. He had applied for bail but was not released on bail because he could not comply with the terms of the bail agreement.
The notice of appeal in this matter lists a number of grounds of appeal. It is unnecessary to recite them because Ms Lee-Justine, who appears for the appellant, states that the appellant relies only on one ground, namely, that the magistrate erred in suspending the sentence of imprisonment imposed for the offences of driving whilst disqualified. The appellant contends that there was no evidence of grounds to justify suspending the sentence.
The appeal was lodged three days late. The reasons for the delay as stated in the notice of appeal are that the learned magistrate had been asked to supply reasons but the reasons were unavailable. The appellant contends the delay is not unduly excessive and does not prejudice the respondent.
The reason for that delay is not particularly convincing. There was nothing which prevented the prosecution from lodging an appeal stating that the sentencing remarks of the magistrate were not available and giving notice of an intention to amend the grounds once the remarks did become available. In effect, that is what this notice of appeal does. That is a course not infrequently adopted when the sentencing remarks of a magistrate are not immediately available.
However, it must be noticed that the delay was a delay of three days only. Being such a short delay, it is difficult to find that anyone is particularly prejudiced, either the appellant or the respondent. However, it is fair to note that the respondent would have been justified in believing that the time for appeal had expired and, therefore, there was to be no interference with the sentence. I will return to that aspect a little later.
The court has a discretion whether to grant an extension of time within which to appeal. That discretion exists for the sole purpose of doing justice between the parties: Hughes v National Trustees Executor & Agency Co of Australasia Ltd [1978] VR 257 and Gallo v Dawson (1990) 93 ALR 479. When exercising that discretion it will have regard to the length of the delay, the reasons for it, whether there is an arguable case and the extent of any prejudice suffered by the intended respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 2 WAR 196 and McPherson v Groeneveld (unreported, Supreme Court of SA, 21 February 1997, judgment no S6052). A distinction is to be drawn between an application for an extension of time within which to appeal and an application for an extension of time to set down an appeal which has been already instituted: Jackamarra v Krakouer (1998) 195 CLR 516. This application is obviously an instance of the former.
When considering whether an appellant has an arguable case, the court does not go into “much detail on the merits”: R v Secretary For Home Department; Ex parte Mehta (1975) 1 WLR 1087 at 1091; Jackamarra v Krakouer at [9] and [66]. An appellant will not have an arguable case if it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable”: Jackamarra v Krakouer at [34].
The issues raised by the appellant are, on any view, fairly arguable. There is a real question of whether the magistrate in this case has proceeded correctly and whether she should have suspended the sentence. On the question of prejudice, as I have said, there is no real prejudice to either party, except to the extent that the respondent might have believed that the suspended sentence would not be interfered with. That is a matter I think more relevant to the consideration of this as a prosecution appeal than to the question of extension of time.
As Lander J noted in Gikas v Police (1999) 202 LSJS 301 at 306, there may be cases where the court cannot do justice without hearing the appeal on the merits.
In my view, the delay is not great. There is an arguable case. There is no real prejudice. It is appropriate to grant an extension of time.
I turn to the circumstances of the offending. As is apparent, the respondent had committed the offence of driving whilst disqualified on three separate occasions on 17 September. At about 12.46 am on 17 September police attempted to stop a station wagon travelling on the Sturt Highway for the purposes of conducting a random breath test. The police vehicle approached the station wagon from behind. The driver of the station wagon accelerated to a speed of approximately 150 km/h in what was a 110 km/h zone. The police activated emergency lights and sirens to stop the vehicle. The driver continued driving for about 1.4 kilometres. The station wagon was eventually stopped. The driver got out from the vehicle and walked towards the police vehicle but then turned and ran into a paddock jumping fences to avoid police. After a search of the area police were unable to locate the driver. However, inquiries established that the respondent was, in fact, the driver on this occasion.
Later, at about 7.50 am the respondent went to the Berri Police Station to report that his wife’s purse had been stolen. The police officers on duty were aware of the incident earlier that morning and that the respondent was the person alleged to have been involved. The police asked the respondent how it was that he had got to the police station. The respondent replied that his mother-in-law had driven him and had dropped him at the police station. The respondent’s mother-in-law denied that assertion. When further questioned, the respondent said that his wife had planted the vehicle there to set him up. Police later established that the respondent had driven the vehicle to the police station himself. These dishonest answers constitute the offence of failing to truly answer questions.
The respondent was then arrested for a second offence of driving whilst disqualified and was bailed with a warning by police not to drive again. After he had been released on bail and after he had been warned of the consequences of driving whilst disqualified, the respondent left the police station, crossed to the Woolworths car park, got into the station wagon and drove it away. He was seen by police to do so. Police were not able to stop the vehicle. This was the third offence of driving whilst disqualified. He was later arrested and, as I have mentioned earlier, was refused police bail.
The respondent then applied to a magistrate for bail. The application was made on 19 September. The respondent was not able to comply with conditions of a bail agreement and bail was refused. He remained in custody until dealt with on 20 September.
As I have mentioned, the magistrate imposed a sentence of imprisonment but suspended it. The reasons for suspending the sentence of imprisonment are set out in paras 6, 7, 8 and 9 of her reasons.
You appear before the Court as a 30-year old man, married with three children. The aggravating circumstance is that in February of this year you were put on a suspended sentence for driving disqualified. That was a straight out suspended sentence involving one-month’s imprisonment. At that point you had no prior convictions for driving disqualified; obviously the Magistrate found the matter was contumacious and sentenced you to that period of imprisonment and gave you a chance by suspending it.
There has to be some explanation for your bizarre, stupid and criminal behaviour on 17 September. The only explanation you give to me is the fact that you suffer from mood swings. You are on medication and at the time you had not been taking your medication. You spent some time in custody. I hope that has taught you some sort of lesson, because if you do this again, I can almost guarantee you will be going into gaol for a long time.
As far as the breach of bond is concerned in light of your medical situation and lack of medication I am prepared to extend the bond for a further six months.
In relation to all the other matters ordinarily as I said you would be looking at a lengthy period of time in custody for each consecutive drive disqualified – I would have thought somewhere in the vicinity from 18 to 21 months.
Counsel for the respondent had made extensive submissions concerning the respondent’s personal circumstances and his mental health. The magistrate clearly had regard to those matters.
The three offences of driving whilst disqualified all constituted subsequent offences for driving whilst disqualified. Section 91 of the Motor Vehicles Act prescribes a sentence of imprisonment for two years for subsequent offences. Whatever might be said about the first incidence of driving whilst disqualified, the two later occasions clearly indicate that the respondent deliberately ignored the court order of disqualification and, on the third occasion, ignored a clear warning by a police officer to comply with the order. On any view, it was conduct which merited imprisonment.
In Policev Cadd it was said that an order of imprisonment would only be made when the offending is contumacious. There can be no doubt that this offending was contumacious. It was nothing other than a deliberate defiance of an order of the court and with a clear warning not to do it. Clearly, an order of imprisonment was appropriate and Mr Richter, who appears for the respondent, does not suggest to the contrary.
Notwithstanding that an order of imprisonment was to be ordered, it was, nevertheless, necessary for the magistrate to consider whether, in all of the circumstances, good reason existed to suspend the sentence. Section 38 of the Criminal Law (Sentencing) Act1988 authorised the magistrate to suspend the sentence if she thought that good reason existed for doing so. The expression “good reason” is not a term of art. It vests a wide discretion in the court, the exercise of which will depend on the circumstances of each individual case. The adjective “good” has a variety of meanings: see the Oxford English Dictionary and the Macquarie Dictionary. In this context, the expression “good reason” means more than adequate reason. It requires that a proper reason should exist. To hold otherwise would be to water down the meaning of the expression in a way unintended by the Parliament. Beyond that, the expression “good reason” should not receive any judicial gloss, lest that fetter the proper exercise of the discretion: cf R v Wacyk (1996) 66 SASR 530 per Perry J at 530.
In this case counsel who appeared for the respondent in the Magistrates Court advanced a number of facts contending that the sentence should be suspended. Briefly stated, they were that the respondent is the sole provider for his family, that he and his wife are purchasing their own house, that there is a mortgage of some $60000 in respect of that house, that the respondent suffers a mental health condition which results in him having severe mood swings and anxiety, that the respondent has been prescribed Valium and that he also has problems with alcohol. It was submitted that later in the day he had consumed 10 to 12 tablets of Valium and a considerable amount of alcohol to the point of intoxication and this had caused him to act irrationally and uncharacteristically.
There was no evidence to support the assertions as to the mental or psychiatric condition. Counsel for the respondent did not tender any medical or psychiatric reports. The respondent did not give any evidence. There was no evidence as to the effect upon his employment.
This was a case where the magistrate should have adjourned the matter to enable evidence on those issues to be obtained. The respondent had acted with such defiance of the law that a period of imprisonment was appropriate, unless good reason existed. The offending was so serious that evidence of any good reason was necessary. Assertions as to facts from the bar table are no substitute for evidence unless those facts have been agreed. The magistrate, therefore, erred in not requiring evidence of the matters relied on by the respondent.
The desirability of obtaining evidence on matters of this kind was addressed in Spakianos v Police (2000) 113 A Crim R 248 and, in particular, at [10] to [14]. See also the remarks of Perry J in Wilson v Rowbottom (unreported, SA Court of Criminal Appeal, 14 December 1988, no 1718/88) to which reference is made in Spakianos. As is noted in Spakianos, where a magistrate is aware that a defendant is suffering from a psychiatric condition, it is appropriate to order a pre-sentence report. Alternatively, the magistrate can require the defendant to provide that report.
In making these observations I do not overlook the fact that magistrates have heavy lists to discharge. They are extremely busy. But once alerted to medical or psychiatric issues, it will, in most cases, be necessary to obtain evidence to support the assertions which have been made so that the magistrate proceeds on a proper evidentiary basis. A magistrate can rely on assertions from the bar table only when they relate to facts which have been agreed.
In this case, the magistrate has, therefore, clearly erred. The question is whether it is appropriate to interfere with the order which she has made suspending the sentence of imprisonment.
This appeal has been brought pursuant to s 42 of the Magistrates Court Act1991. There is a difference of opinion in this Court whether such an appeal is subject to the principles enunciated in Everett v The Queen (1994) 181 CLR 295. The majority of the court in Police v Cadd held that it was. I am bound to apply that decision, though I find the reasoning of Lander J the more persuasive. The court will entertain a prosecution appeal against sentence in rare and exceptional circumstances only: Everett v The Queen at 299. One occasion is where it is necessary to establish some matter of principle. Other instances are where it is necessary to correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crime and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: R v Osenkowski (1982) 30 SASR 212 at 212 - 213. As King CJ noted in R v Osenkowski at 212:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must be always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
In this case, the prosecution seeks to establish the principle that, unless the facts are agreed, submissions of the kind made in this case should not be advanced unless the facts are agreed or there is evidence, if necessary sworn evidence, to support them. That principle can be expressed without the necessity of interfering with the sentence. In this case, even if the magistrate has been unduly merciful in suspending the sentence, I would be very reluctant to allow the appeal.

In addition to the special considerations attaching to prosecution appeals, this is an instance where a person has been told that he will not have to go to prison. In addition, the period fixed for any appeal had elapsed. I do not think that any considerations of justice, or the protection of the public require that this respondent, after being told by a court that he will not have to go to prison, should face the risk some months later of having to go to prison: cf R v Hicks (1987) 45 SASR 270 at 273.
There is a further consideration. The sentence is not insignificant. The respondent is on a bond to be of good behaviour for two years. If he should offend in this period he will in all likelihood have to serve the suspended sentence. He therefore has a real incentive to ensure that he does not re‑offend in the next two years. In that sense the interests of the public are well served by him being placed on a bond.
For these reasons I uphold the appellant’s contention that the magistrate erred in that she did not require proper evidence to support the submissions made on behalf of the respondent. However, for these reasons, I am not prepared to interfere with the suspended sentence.
The order will therefore be appeal dismissed. The appellant will pay the respondent’s costs fixed in the sum of $750.