Police v JONES No. Scgrg-98-1605 Judgment No. S27

POLICE v JONES
[1999] SASC 27

Magistrates Appeal: Criminal

PERRY J (ex tempore). This is a police appeal against the sentence imposed upon the respondent following his plea of guilty to various traffic offences in the Youth Court sitting at Adelaide.
The respondent was charged on two separate complaints. The first complaint arose out of a passage of driving which occurred on 19 September 1998 on North East Road at Modbury. As to that, the appellant was charged with driving whilst disqualified contrary to s91 of the Motor Vehicles Act 1959, and driving an unregistered and uninsured vehicle contrary to ss9 and 102 respectively of the Motor Vehicles Act 1959. The second complaint alleged a similar cluster of counts, namely, driving whilst disqualified and driving an unregistered and uninsured vehicle (indeed, it was the same vehicle), this time on Surrey Farm Road at Wynn Vale on 30 September 1998.
The respondent is a young man who turned 18 shortly after the offences were committed, namely, on 28 November 1998.
He is no stranger to the criminal justice system. He appeared at a family conference in February 1996 which dealt with a number of complaints of larceny and interfering with motor vehicles. He was given a formal caution and ordered to pay a small amount of compensation.
Subsequently, in November 1996 in the Youth Court he was fined without a conviction being recorded on a charge of possessing equipment to administer a drug. On the same occasion he was dealt with by fines, again without recording convictions, on charges of carrying an offensive weapon, possessing a housebreaking implement, carrying an implement which might be used for the purposes of graffiti and possessing equipment to administer a drug.
He again appeared in the Youth Court in February 1998 on a charge of possessing equipment to administer a drug.
In September 1998 in the same court he was convicted of a charge of driving under the influence, together with a separate charge of disobeying a provisional licence condition. It was on that occasion that he was fined and the licence disqualification now in question was imposed, namely, a disqualification of twelve months running from 9 September 1998.
It follows that it was only eleven days after he appeared in the Youth Court when the licence disqualification was imposed, that he was found to be driving in breach of it, and only a further eleven days later that he was found once again, to be driving in breach of it.
I have had the benefit of affidavits sworn by the police officer who presented the matter in the Youth Court, Mr Michael Newton, and of Ms Battersby, the respondent's solicitor who appeared on his behalf before that court.
From that material it appears that on the first occasion now in question, that is on 19 September 1998, a Saturday evening, police in an unmarked police vehicle observed the respondent driving in North East Road at Modbury. A motor vehicle check revealed that the registration had expired in December 1997. When the vehicle, a Ford Falcon station wagon, was stopped, the respondent, who was driving, admitted that he was aware that it was unregistered and uninsured and further that he was aware that he was disqualified. This is hardly surprising, as he had appeared in court only the week before when the suspension for twelve months was imposed. The reason he gave for driving the vehicle was to “pick up his girlfriend”.
On the second occasion, that is on 30 September 1998, the respondent was seen by police officers to be travelling on Golden Grove Road in the same car, which was still unregistered and uninsured. On that occasion the respondent agreed that he was still disqualified and that he had not registered the vehicle as he did not have the money to do so. He said that he was driving the vehicle as he “had somewhere to go”. On that occasion he was arrested.
In her affidavit Ms Battersby has pointed out that on the occasion when his licence was disqualified, the respondent appeared in court without a solicitor representing him and to quote her:
“Without the benefit of legal advice, he had not understood the full seriousness with which driving whilst disqualified is viewed by the court.”

She also states:

“In addition, he felt some frustration as he had not been able to effectively communicate his view of the events in the court on that occasion.”

She goes on to say that there was some confusion in the respondent's mind as to whether the registration and insurance was due to be paid. I find that hard to accept in view of the remark made by him to the police officers on the occasion when he was first stopped on the road. Ms Battersby says that on the second occasion, that is, on 30 September 1998, the respondent was returning his car to his home address with the intention of preparing it for sale as he did not intend to drive it in the future. That does not square very well with his remark “that he had somewhere to go”.
In the submissions which Ms Battersby put in the court below, she said that the respondent was adversely affected by his parents' divorce which had occurred in about July 1998, twelve months after their separation, followed by the sale of the family home in August 1998, shortly before these offences were committed. He had been unemployed for a considerable period but had a job to go to on the day after his court appearance.
When the learned sentencing magistrate intimated that he proposed to impose no further licence disqualification, no detention, and a fine at the lower end of the range, Ms Battersby made no further submissions.
Senior Constable Newton complains in his affidavit that he was not called upon to make any submissions before the learned sentencing magistrate went on to impose the penalty now under review, but no further point has been taken about that by Mr Hinton who has appeared for the appellant on the hearing of the appeal.
With regard to the penalties which were imposed with respect to the offences of 19 September 1998, the learned sentencing magistrate dismissed all counts without conviction but imposed levies totalling $42. With respect to the offence of 30 September 1998 on count one, that is driving whilst disqualified, there was a conviction and a direction to pay costs of $102 but no further penalty. As for the counts of driving an unregistered and uninsured vehicle, the learned sentencing magistrate imposed fines of $50 and $75 respectively, together with a further levy of $42.
Mr Hinton of counsel for the appellant, at the outset of his submissions drew attention to the special considerations which bear upon the operation of the Youth Court, which find expression in s3 of the Young Offenders Act 1993. He conceded that the court proceeds on the basis that it does not take into account any question of general deterrence, as opposed to sanctions aimed at the particular offender with whom the court is dealing. He drew attention to s3(2) of the Act which emphasises that the powers conferred by the Act are to be exercised in a way which brings home to a youth his or her obligations under the law and the consequences of breach of the law, but at the same time must ensure adequate protection of the community and the individual members of it against violent or wrongful acts.
The specialist jurisdiction exercised by the Youth Court has been the subject of judicial comment by judges of this Court. I have been taken to two cases in which observations had been made in that respect, namely, Hallam v O'Dea[1] and Police v A.[2]
[1] (1979) 22 SASR 133.
[2] (1993) 169 LSJS 39.
Without going into those cases, it must be accepted that the Youth Court is a court in which a unique and special jurisdiction is exercised and. Furthermore, comparisons between sentences which might be imposed in that court and sentences imposed by a court dealing with adults are not appropriate.
There is, of course, a heavy onus on the Crown to justify interference by this Court with the exercise of the sentencing discretion in the lower court. Notwithstanding that heavy onus, Mr Hinton contended that the orders which were made could not be regarded as fulfilling any useful purpose, and were not severe enough to have any rehabilitative effect on the conduct of the appellant. This is so, given the record which was put before the sentencing court and also taking into account the nature of the offending, and the fact that the appellant was driving so soon after being suspended, not just on one occasion but on two separate occasions.
Mr Alcock for the respondent drew attention to the heavy financial burden which the respondent faces, namely, over $800 as a result of penalties imposed on 8 September 1998 with respect to the driving under the influence count and the other count dealt with on that day. He submitted further that the learned sentencing magistrate had done no more than take into account the personal circumstances of his client, and that although the sentence was “merciful and lenient”, it was one which was well within the proper exercise of the sentencing discretion, bearing in mind the specialist nature of the jurisdiction.
Those considerations must be taken fully into account.
However, as I put to Mr Alcock during the course of his very helpful submissions, the outstanding feature of this case is that the respondent has demonstrated an unwillingness to take heed of the many occasions upon which he has been counselled or warned as to his behaviour, dating back to 1996. Furthermore, it was conceded by Mr Alcock that when the licence suspension was imposed, he would certainly have been told what the consequence of breach of it would be. True it is, as Ms Battersby suggests, that without the assistance of a solicitor he might not have had the benefit of an additional explanation. But I cannot believe that, with his experience of appearances in court, he did not fully understand the implications of that suspension when it was imposed. If he was left in any doubt about it, he could not have been left in any doubt after he was first apprehended on the occasion when he was observed driving on 19 September 1998.
This was a bad case of “contumelious” breaches, within the meaning of that word as it is defined in Cadd,[3]and the many cases in this Court which have followed the decision of the Full Court in that case. I refrain, however, for the reasons I have given, from making any comparison with the sentence imposed in an adult court in similar circumstances. That is not the way to go about the consideration of this appeal.
[3] (1997) 69 SASR 150.
But what must be done is to have regard to whether or not the sentence which was imposed was sufficiently conditioned to the personal circumstances of the respondent, having regard to his apparent inability to heed the warnings which he must have been given in the past. That aspect of the matter, in my opinion, must be addressed. Having regard to the remarks made by the learned sentencing magistrate in the court below, in my opinion, they have not adequately been addressed by him.
It seems to me that something more than the warnings which were given by the learned sentencing magistrate, which included a warning that he would be dealt with in an adult court if he was to offend again and would very likely end up in Yatala gaol, was required to bring home to the respondent the need to mend his ways.
It seems to me that the very minimum that would be necessary to achieve that result, would be some sort of suspended sentence.
In my view, the learned sentencing magistrate erred in assuming that the remarks he made to the respondent were sufficient, coupled with the relatively small money penalties which he imposed.
The circumstances of this appeal, in my view, satisfy the heavy onus on the Crown in appealing against sentence, and the appeal should be allowed for the purpose of re-casting the sentencing package. In my opinion, it should be re-cast with particular attention being given to the need to bring home to the respondent that he must treat the law with respect.
The appeal will be allowed for the purpose of quashing the order on the first count relating to 19 September 1998, and substituting a conviction without penalty on that count.
It will be further varied by substituting for the penalty imposed on count 1 of the complaint relating to 30 September 1998, a conviction and an order for the appellant’s detention for 21 days, which is to be suspended upon his entry into an obligation within the meaning of s26 of the Young Offenders Act to be of good behaviour for a period of twelve months from the date upon which the obligation is entered into.
In all other respects the sentences under appeal will be confirmed and remain in effect.

[Following discussion with counsel as to the appropriate terms in which the order should be cast.]

HIS HONOUR: I direct that the respondent attend at the registry of the Youth Court, for the purpose of signing an acknowledgment of the obligation which I have just ordered.

[Addressing the appellant in person]

HIS HONOUR: I have dealt with this appeal by imposing a term of 21 days detention on the second count of driving whilst disqualified.
MR JONES: Yes.
HIS HONOUR: You will have heard also, and I am speaking to you now so that you fully understand it, that I have accompanied that with an order that the carrying into effect of that detention be suspended on the basis of an obligation that you be of good behaviour for 12 months from now. That means that if you do not further offend in any way over the period from 12 months from now, that is the end of it. If you do offend in any way, by committing traffic offences or any other offence, you will be detained for 21 days. That order of detention will then operate. Do you understand that?
MR JONES: Yes.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDMENT

(1979) 22 SASR 133.
(1993) 169 LSJS 39.
(1997) 69 SASR 150.

[1999] SASC 27

21 January 1999