Police v Ludwig
[2015] SASC 183
•12 November 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v LUDWIG
[2015] SASC 183
Judgment of The Honourable Justice Peek
12 November 2015
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
Appeal against sentence. The appellant was charged with driving in a manner dangerous to the public (Count 1) and a number of other offences. The appellant originally relied on a defence of necessity on the basis that he was fleeing from an attacker. However, during negotiations with the police prosecutor, the appellant’s solicitor indicated the appellant would plead guilty on the factual basis that although he could not establish a defence of necessity, he perceived that he was being chased.
On 12 June 2015 the police prosecutor made submissions on sentencing to the Magistrate based on the police apprehension report. She alleged that the appellant appeared to be racing another vehicle; both vehicles were side-swiping each other; after a collision, the appellant sped off while police were approaching the other driver; but that he eventually stopped at the police station. The solicitor made submissions that the appellant was not engaging in thrill-seeking behaviour but was attempting to escape from what he thought was an attacker. Unfortunately, he failed to inform the Magistrate that he understood that the prosecution accepted that position. The police prosecutor made no submissions with respect to the appellant’s motivation. The Magistrate said he would read the apprehension reports and consider the submissions. On 19 June 2015, the Magistrate sentenced the appellant to 8 months imprisonment for Count 1 with other cumulative sentences for other unrelated offending.
The appellant appealed only against the sentence imposed in respect of Count 1. It was contended that the appellant’s solicitor had misunderstood the prosecution position and had thought that the prosecution had agreed to accept the appellant’s version of events. The appellant’s counsel accepted that the solicitor should have informed the Magistrate that such an agreement existed, but urged that detrimental consequences should not be visited upon the appellant himself for that failure. A transcript of the appellant’s record of interview, which was not available at the time of sentencing, was admitted on the appeal.
Held (allowing the appeal):
1. The onus was on the appellant to prove a mitigating factor such as a fear of being attacked. That onus can be discharged by the prosecution and the Magistrate both accepting the appellant’s assertion, or by the appellant giving evidence in an attempt to prove the assertion on the balance of probabilities. In general, a lawyer appearing for a defendant cannot assume that the defendant will be sentenced on the basis of the defence submissions; the lawyer has the primary responsibility to inform the defendant that judicial officers are not under a general obligation to indicate during sentencing submissions whether a submission is accepted.
2. Although the solicitor failed to ensure that the Magistrate was aware of the agreement he believed to exist between the prosecution and himself, it is open to find that there was an unacceptable danger that the appellant was not on notice that the submission being advanced of flight due to fear might not be accepted by the Magistrate.
3. The summary of the accused’s interview in the apprehension report was inaccurate in material respects. These discrepancies cause real concern that the Magistrate may have rejected the appellant’s version put in submissions at least partly on the basis of an incorrect impression of the appellant’s interview conveyed by the apprehension report.
4. In all of the circumstances, the sentence in respect of Count 1 is set aside and Count 1 is remitted to the Magistrates Court for further hearing.
MJDH v Director of Public Prosecutions (2013) 116 SASR 180; R v Day [2009] SASC 84; R v Haydon (2001) 80 SASR 560; R v Kreutzer (2013) 118 SASR 211; R v Lobban (2001) 80 SASR 550; R v Olbrich (1999) 199 CLR 270; R v Perre (1986) 41 SASR 105; R v Stubberfield (2010) 106 SASR 91; R v Tiknius (2011) 221 A Crim R 365, discussed.
R v Storey [1998] 1 VR 359; Weininger v The Queen (2003) 212 CLR 629, considered.
POLICE v LUDWIG
[2015] SASC 183PEEK J.
Appeal against sentence pursuant to s 42(2)(b), Magistrates Court Act 1991.
The appellant was charged on a complaint (the subject complaint) containing the following counts:
1.On the 21st day of December 2014 at CHRISTIE DOWNS in the said State, drove a vehicle namely a motor vehicle registration number SA: S117BBF on roads namely Dyson Road and Beach Road in a manner which was dangerous to the public.
Section 46 of the Road Traffic Act 1961.
This is a summary offence.
2.On the 21st day of December 2014 at CHRISTIE DOWNS in the said State, being a driver involved in a crash on a road namely Beach Road, you failed to stop and give the required particulars of the crash to any other driver involved in the crash.
Rule 287(1) and Rule 287(2) of the Australian Road Rules.
This is a summary offence.
3.On the 21st day of December 2014 at CHRISTIE DOWNS in the said State, without lawful excuse carried an offensive weapon.
Section 21C(1) of the Summary Offences Act 1953.
This is a summary offence.
On count 1, (the subject offence) the appellant faced a maximum penalty of imprisonment for two years, with a licence disqualification of not less than three years.[1] The appellant pleaded guilty to counts 1 and 3 of the subject complaint. Count 2 was withdrawn on the agreed basis that the allegations on that count would be dealt with under count 1. The appellant also pleaded guilty to a number of other charges concerning quite different occasions.
[1] The mandatory licence disqualification for three years was due to his prior convictions for dangerous driving to escape police: s 46(3)(a)(ii), Road Traffic Act 1961. On the same complaint were charges of failing to stop after an accident relating to this same occasion (which was withdrawn by the prosecution) and of carrying an offensive weapon (which related to weapons found in his vehicle on this occasion and for which he was convicted without penalty).
On 12 June 2015, the Magistrate heard submissions as to penalty in relation to all matters. His Honour reserved his decision on penalty for all matters.
On 19 June 2015, the Magistrate sentenced the appellant to the following cumulative sentences of imprisonment:
·eight months imprisonment on count 1 of the subject complaint;
·three months imprisonment for one count of unlawful possession;
·three months imprisonment for one count of failing to comply with a bail agreement (relating to home detention bail);
·two weeks imprisonment for three counts of failing to comply with a bail agreement (relating to simple bail);
·two concurrent sentences of four months imprisonment for two counts of driving while disqualified; and
·two weeks imprisonment for one count of refusing to answer questions by a police officer relating to the identification of a driver.
The appellant was also convicted without penalty on count 3 of the subject complaint. The Magistrate imposed a head sentence of 19 months imprisonment which was simply the total of all of the above cumulative sentences. There is no complaint as to totality or lack of concurrency and I do not see how there could be in these particular circumstances. His Honour fixed a non-parole period of 12 months and ordered that the head sentence and non-parole period both commence on 29 December 2014. The Magistrate also disqualified the appellant from driving for a period of three years.
On appeal, the appellant complains only about the sentence of eight months imprisonment for the subject offence. He appeals on the following grounds:
1.The learned Magistrate erred in imposing a sentence of eight (8) months as it is manifestly excessive.
2.The learned Magistrate erred in failing to indicate the factual basis upon which he was sentencing the Appellant for this charge.
3.If the learned Magistrate did not accept the factual basis for offence put forward by the Appellant, the learned Magistrate erred in not informing the Appellant that the factual basis was not accepted and not giving the Appellant and opportunity to give evidence.
In order to address these grounds of appeal it is necessary to have close regard to the negotiations between the Legal Services Commission (LSC) solicitor acting for the appellant and the course of the eventual plea hearing before the sentencing Magistrate.
The police apprehension report
Prior to the sentencing hearing, the Magistrate was supplied with the police apprehension reports relating to the subject offences with the consent of the solicitor for the appellant. In relation to the events of 21 December 2014, the apprehension report relevantly states as follows:
COUNT 1: - MANNER DANGEROUS
At about 1.25am on Sunday 21/12/14, this accused was the driver of a Holden Sedan SA: S117BBF when it was driven at both a speed and in a manner that was dangerous to other people. As a result of his manner of driving, the accused was involved in a collision with another vehicle he was racing with.
COUNT 2: - FAIL TO STOP AFTER ACCIDENT
At about 1.25am on Sunday 21/12/14, this accused was the driver of a Holden Sedan SA: S117BBF when it was involved in a collision with another vehicle. The accused took off from the scene without stopping. The accused was pursued by police and then stopped.
...
POLICE:
At about 1.25am on Sunday 21/12/14, Police (GORDGE/MCKEOWN) plain clothes CIB patrol travelling north on Lonsdale Highway, CHRISTIES BEACH saw this accused driving black Holden Commodore sedan SA: S117BBF in a southerly direction (CHRISTIE DOWNS) on the same road. At that time, this accused appeared to be racing with a blue coloured VS model Holden Commodore, SA: XCC-558 driven by co-accused Roger DAY. This portion of road has two lanes for traffic travelling in each direction and is divided by a large median strip. There was a vehicle in each lane, almost side by side.
Police subs executed a u-turn to pursue and stop the two vehicles. Police saw the two vehicles approach a round-about situated at the intersection of Flaxmill, Dyson, Gulfview Roads & Lonsdale Highway. Both vehicles travelled through the intersection at a fast rate of speed, one of them mounting the round-about with the right side tyres. As police exited the round-about, police noted their vehicle to be travelling at 100kph. Both vehicles were accelerating away from Police at this time meaning they were travelling well in excess of 100kph. This portion of road is speed zoned 60kph. As both vehicles approached Beach Road, both were side by side making a left turn in a single lane left turn lane to travel east onto Beach Road. It was apparent both vehicles collided at this point. This accused’s vehicle was on the left side of the carriage way as they turned and the co-accused (DAY) was driving around the right side of the accused.
Both vehicles accelerated off from the left turn lane side-swiping each other as they travelled. The left side of the accused’s vehicle collided with street signs on the northern footpath of Beach Road whilst the co-accused collided with the median strip and travelled across Beach Road into the path of oncoming traffic to the wrong side of the road. Police had managed to catch up to both vehicles and activated lights and sirens in an attempt to get both to stop. This accused sped off from the collision whilst the other vehicle rolled to a stop due to its damage. The accused stopped momentarily before speeding off along McKinna Road, CHRISTIE DOWNS.
Police (MCKEOWN) remained with the co-accused on Beach Road whilst (GORDGE) followed this accused back around the block to Dyson Road where lights and sirens were activated to stop the vehicle. The accused continued to drive on turning left again at Beach Road before stopping at the front of the Christies Beach Police Station.
Whilst speaking with the accused, Police (TANK) was examining the damage on the vehicle when he saw weapons on the back seat of the accused’s car. The vehicle was then searched and a large hunting type knife located under the driver’s seat along with a wooden pick-axe handle with a large 6” nail protruding out of the end and a black metal pole about 1 metre long. The accused was subs arrested and rights given. He was handcuffed and walked to the police station where a video recorded interview was conducted. At the conclusion of the interview, the accused was charged and bailed. The accused is known to police and identified by photographic identification.
...
ACCUSED:
In relation to all counts, stated that he was the owner of the vehicle and the driver at the time of the offences charged. Didn’t want to say why he was racing the other vehicle but then stated he went to meet someone at the service station situated at the corner of Gulfview Rd and Dyson Rd CHRISTIES BEACH when a vehicle blocked him in and he felt threatened. Stated that he wasn’t racing with the 2nd vehicle but was being chased by them. (There was a suggestion that this accused owed $500 for a drug debt.) Stated he had been ‘chased’ by them for about 30 minutes but wasn’t able to call police because the phone was in his pocket??? Stated that he left the scene of the accident because he wasn’t thinking. Stated that the weapons in his car belonged to someone else who had been in his car earlier and denied that the knife under the driver’s seat was his also blaming a previous occupant.
Negotiations between the appellant’s solicitor and police prosecutions
The appellant originally sought to contest the charges in the Magistrates Court and the matter was listed for trial.
Mr O’Connor, the solicitor assigned to the appellant by the LSC, stated in an affidavit dated 9 October 2015 (received on the appeal), that during negotiations with the police prosecutor prior to the trial date, the key issue in dispute was whether or not the defence of necessity applied. He stated that the assigned trial prosecutor, Ms Francis, indicated that the prosecution’s position was that the defence was not available on the facts of the case but that the prosecution would not take issue if the appellant were to make submissions that the appellant drove in the manner he did because he subjectively perceived that he was being chased by the other vehicle. He stated that Ms Francis confirmed at a later date that the prosecution remained willing to finalise the matter on the basis of a plea to counts 1 and 3 and on the factual basis that the appellant perceived that he was being chased.
However, Ms Francis, the assigned police prosecutor, stated in an affidavit dated 14 October 2015:
I recall Mr O’Connor asking me what the Prosecution’s attitude would be if the appellant pleaded guilty to count 1 and if he made submissions in mitigation that the appellant drove in the manner that he did because he believed that he was being following. I recall telling Mr O’Connor words to the effect that I could not say what his client was thinking at the time he was driving, but that if that was his perception, it was inconsistent with police observations.
No factual basis was agreed with Mr O’Connor.
I made an entry in the prosecutor’s diary that I had spoken with the appellant’s solicitor over the phone that day and that the matter was still contested. I did not note that a factual agreement had been made. It is my usual practice to note such matters in the prosecutor’s diary.
The sentencing hearing before the Magistrate on 12 June 2015
In sentencing submissions before the Magistrate on 12 June 2015, Mr O’Connor proceeded first on the accepted basis that the Magistrate was in possession of the police apprehension reports outlining the facts relied on by the prosecution.
Mr O’Connor submitted that the appellant Ludwig had not been engaging in thrill-seeking behaviour. Rather, he had been at the petrol station with his partner when another car pulled up and he felt that he was going to get “jumped”; he made a decision to leave the petrol station but the other car pursued him; his car was then hit by the other car; he panicked and continued to drive fast. Mr O’Connor submitted that the appellant’s dangerous driving was motivated by his fear arising from the actions of the other driver and his uncertainty as to what would happen. He submitted that the appellant drove at a very fast speed towards the police station, during which the other car collided with his car twice; after the second collision, the other car stopped and Mr Ludwig then proceed to the police station.
The police prosecutor appearing at the hearing, Ms Gottschutzke, then addressed the Court. She based her submissions on the apprehension report reproduced above. She submitted that the facts were that police had witnessed both cars travelling in a 60 kilometres per hour zone through the roundabout at a speed they considered to be well in excess of 100 kilometres per hour; that both vehicles were side-by-side making a left turn into a single lane to travel east on Beach Road after the roundabout and collided; that they then accelerated off from the left-hand turn lane, sideswiping each other as they went; that the left-hand side of the appellant’s car collided with street signs on the northern footpath of Beach Road; that the other car collided with a median strip and travelled across Beach Road onto the path of oncoming traffic; that police caught up with the cars; that the appellant’s car continued from the collision while the other stopped; that the appellant stopped momentarily before speeding off along McKinna Road; that he was followed by a police officer in a plain car with lights and siren operating; that he then arrived at the Christies Beach Police Station.
Ms Gottschutzke stated that Mr Ludwig had on 21 December 2014 given police an account which was consistent with Mr O’Connor’s submissions. She made no submissions in response to that version and nor did she indicate that the prosecution did not accept the submissions made by Mr O’Connor.
Ms Gottschutzke referred to what she termed, not inaptly, Mr Ludwig’s “appalling” history of driving. She submitted that his driving on this occasion “could have resulted in serious injury to himself, the other driver or any other persons on the road at that time so it’s something that prosecution treat as a serious example of driving in a manner dangerous.”
Mr O’Connor then made submissions in rely. He stated in part:
If I could just respond to my friend’s submission in relation to the drive in manner dangerous charge, my friend has made submissions in relation to his past history. I appreciate that needs to be taken into account. He’s not to be punished twice for matters that he’s done previously and I’d submit that the drive in manner dangerous has different motivations to it than the motivations that had formed his previous drive dangerously to escape police pursuit. There were different considerations present. We’re not saying that Mr Ludwig didn’t make a poor decision at that time, that there wasn’t another alternative available to him but just that it wasn’t the typical sort of matter. He wasn’t in the gang seeking to wilfully disregard the law. It’s not him running from police. He ends up at the police station in the end. That’s all I wish to say.
(Emphasis added)
The following dialogue then took place between Ms Gottschutzke and the Magistrate:
APP GOTTSCHUTZKE: ... and I do take on board my friend’s comments but the offence of driving dangerously to escape police pursuit does contain an element of driving at a speed or in a manner that’s dangerous to the public so I’m not asking your Honour to penalise him again but to take into account that his poor driving behaviour has continued.
HIS HONOUR: The police who were following him and the other vehicle, were they in a police marked car?
APP GOTTSCHUTZKE: Police were plain-clothed CIB travelling north on Lonsdale Highway so it would not have been a marked police car. It did, however, have lights and sirens.
…
HIS HONOUR: I would like to read the apprehension reports, consider the submissions that have been put to me and hand down sentence. I wonder if next Friday would be convenient.
MR O’CONNOR: This is my last day for some 17 days. I can ask for a colleague to appear in my stead if it’s the case that your Honour won’t require any further submissions.
HIS HONOUR: I won’t require any further submissions. Mr Ludwig this is not the sort of matter where I should make a snap decision. I understand that you want to get this dealt with as quickly as possible and know your fate. All I can say to you is that the sentence that I impose will be backdated to take into account the time that you spent in custody ...
The hearing was then adjourned.
On 19 June 2015, sentence was pronounced. In his sentencing remarks, the Magistrate stated:
On 21 December 2014 you drove in a manner dangerous to the public, and carried an offensive weapon. The maximum penalty for the driving in a manner dangerous to the public matter is imprisonment for two years, with a licence disqualification of not less than three years, by virtue of your prior convictions for dangerous driving to escape police. …
The offence of most concern to the court is the offence of driving in a manner dangerous to the public. The police observed some of this driving and, in particular, the fact that you and the other vehicle were travelling in what appeared to be a race. You went together through a roundabout. There was a collision, or sideswiping of the vehicles. The other vehicle was forced to the right hand side of the road, and the driver was forced to stop and was spoken to by police, who were by that time following the pair of you with lights and sirens flashing, but in an unmarked car. You were able to drive away from the scene, but you drove to the police station and it was there that you were spoken to by police. The driving on that particular occasion was not only dangerous to yourself and the other road user, but any road users who came upon you during the course of that incident. I note that you say that you were being pursued by that other vehicle, that you were hit by it, and your driving was motivated by feelings of need to get away. That is somewhat inconsistent with what was observed by the police, namely that you were driving side by side, swiping each other, and another vehicle had to swerve to avoid being struck by your vehicles, and that you sped off when the police stopped with the other vehicle.
Your driving history is appalling, and you clearly show little regard to the road rules or to the safety of other road users. In my view, given your prior offending history, and the circumstances of the offence of 21 December 2014, anything other than a sentence of immediate imprisonment would fail to give proper consideration to your driving history, and to the need of this court to protect the public from those who would drive in such a way as to be a danger on the roads. A message must also be sent to other road users who might be minded to drive in the manner in which you have driven that severe penalties will follow. (Emphasis added)
The Magistrate later continued:
I have considered all of the submissions that have been put to me on your behalf. I have also had regard to the circumstances of your offending. …
Finally, in relation to the charge of manner dangerous on 21 December 2014, noting your prior appalling driving history and the fact that the maximum penalty for that offence is two years imprisonment, I would have imposed a sentence of 12 months imprisonment, but reduce that to eight months, to take into account your plea of guilty. Your licence is disqualified for a period of three years.
The hearing of the appeal
Mr English, a solicitor employed by the Legal Services Commission, appeared for the appellant on the appeal. Mr O’Connor did not attend. The affidavits of Mr O’Connor and Ms Francis referred to above were tendered.
Mr English submitted that there had been some misunderstanding by Mr O’Connor as to the prosecution position; Mr O’Connor had thought that there was an agreement that the prosecution would positively accept the version of the appellant on count 1. Mr English accepted that Mr O’Connor should have informed the Magistrate that there was such an agreement as to the facts upon which the appellant should be sentenced but had inexplicably failed to do so. He agreed that this was a serious error by Mr O’Connor, but urged that detrimental consequences should not be visited upon the appellant himself for a failure for which he was not responsible.
Before considering the appropriate disposition of this appeal, some preliminary matters need to be attended to.
A subjective fear not amounting to a defence of necessity may constitute a mitigating factor
Clearly, a fear of being attacked can mitigate an offence of dangerous driving occurring in the course of attempting to escape. Thus, in R v Day, Sulan J stated:[2]
[35] There may be instances in which a person acts under fear or from threats as a result of which he may be considered to be less culpable than an offender who is not under pressure to offend.[3] The rationale for regarding such circumstances as a mitigating factor were discussed by King CJ in Trocko. He said:[4]
I think that as a matter of principle threats made to an offender which fall short of supporting a defence of duress may nevertheless be taken into account by way of mitigation of penalty. I think that that must be so for two reasons. The fact that a person acts out of fear in consequence of intimidation may well in certain circumstances affect the degree of his subjective or moral culpability with respect to the conduct for which he is before the court. Moreover, the same consideration may affect his prospects of rehabilitation. The fact that the offence has not been committed out of motives of greed or malice but rather out of fear may carry with it the consequence that if the cause of the fear is removed, the offender will be unlikely to offend again. But whether in a particular case the fact that fear of intimidation has played a part in the commission of offences should result in a reduction in penalty must depend on the circumstances of the particular case.
[2] [2009] SASC 84.
[3] R v Trocko (1988) 142 LSJS 412.
[4] (1988) 142 LSJS 412, 415.
In similar vein, in the judgment of the New South Wales Court of Criminal Appeal in R v Tiknius,[5] (where an element of duress falling short of a complete defence was held to be a mitigating factor), Johnson J (Tobias AJA and Hall J agreeing), said:[6]
[49] Where an offender discharges the onus and satisfies the sentencing Court that a factual finding should be made that the offender’s involvement in the offence was affected by duress, it will remain for the Court to determine what weight should be given to that factor on sentence. This will involve, amongst other things, consideration of the form and duration of the offender’s criminal conduct, the nature of the threats made and consideration of opportunities which were available to the offender to report the matter to relevant authorities.
...
[63] Considerations of the type raised at [49] above require attention. What was the form and duration of the applicant’s criminal conduct? What opportunities did he have to report the matter to the authorities? What was the nature of the threats made?
[5] (2011) 221 A Crim R 365.
[6] (2011) 221 A Crim R 365, 376-377; 378.
The onus of proof of the asserted mitigating factor
In the decision of the High Court in R v Olbrich, the plurality stated:[7]
[25] Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
[26] In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a fifty-eight year old first offender who pleaded guilty to importing more than 1.1 kg of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation “principal” could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was “a courier”. The respondent bore the burden of proving this fact. The judge was not persuaded of it.
(Emphasis added)
[7] (1999) 199 CLR 270, 280-281.
In R v Kreutzer, Kourakis CJ considered the decisions in R v Olbrich,[8] R v Lobban,[9] R v Storey[10] and Weininger v The Queen[11] and formulated some propositions for sentencing purposes which may be summarised as follows:[12]
(1)Circumstances which operate adversely to a defendant on the one hand, or favourably on the other, should first be identified (always bearing in mind that not all relevant circumstances can be so categorised). Even though there exists authoritative guidance about many commonly recurring circumstances, the categories are not closed.
(2)In the absence of agreement and acceptance by the court, the prosecution must formally prove circumstances of aggravation beyond reasonable doubt and the defendant must formally prove matters in mitigation on the balance of probabilities.
(3)If a circumstance of aggravation or mitigation is not proved by the party who carries the onus to do so, the converse is not thereby proved and the court must proceed to sentence not knowing whether the circumstance, or the converse, is true.
(4)A sentencing court may inform itself of matters which are neither circumstances of aggravation nor mitigation as it sees fit in accordance with historical sentencing practice and any applicable statutory discretions such as s 6 of the Sentencing Act.
[8] (1999) 199 CLR 270.
[9] (2001) 80 SASR 550.
[10] [1998] 1 VR 359.
[11] (2003) 212 CLR 629.
[12] (2013) 118 SASR 211, 222-223 [32].
In the present case, the onus was on the appellant to prove a mitigating factor such as that asserted here on the balance of probabilities. That onus could have been discharged here in two ways.
First, if the prosecution had accepted the appellant’s asserted basis of the plea and the Magistrate had been prepared to sentence on that asserted basis. Of course, this process depends upon the Magistrate being told that there is agreement between defence and prosecution and, as noted above, the solicitor for the appellant failed to bring that asserted agreement to the attention of the Magistrate.
Second, if the Magistrate had announced at the sentencing hearing that he was not prepared to sentence on the basis asserted by the defence, the appellant could have given consideration to whether he would give evidence in an attempt to prove the asserted mitigating factor on the balance of probabilities.
Due to a combination of unfortunate events, it appears that the appellant was not afforded an opportunity to give that consideration to whether he would give evidence and now wishes to be afforded that opportunity.
Was there unfairness to the appellant such as to require a re-hearing?
It must be firmly borne in mind that a lawyer appearing for a defendant on sentencing has the primary responsibility to inform the defendant that judicial officers are not under a general obligation to indicate during sentencing submissions whether a submission is accepted and in general the lawyer cannot assume that his or her client will be sentenced on the basis of his or her submissions.
Thus in R v Perre,[13] King CJ said:
There seems to be a misunderstanding abroad as to the respective roles of the judge and counsel in relation to the basis upon which sentence is imposed. It is for counsel to decide whether or not to call evidence. If counsel relies upon submissions from the bar table, it is not party of the ordinary role of the judge to indicate that he is not prepared to act upon those submissions so that counsel may decide whether to call evidence. A judge may do so, but he is not bound to do so. He may, and generally will, simply consider the depositions and the submissions and make his decision as to the basis of sentence. There will, of course, be exceptions. If counsel for the defence were to indicate that he refrains from calling evidence because he has reached agreement with the prosecution as to the basis upon which sentence should be imposed, the judge would be bound, generally speaking, to indicate that he is unwilling, if such be the case, to proceed upon the agreed basis, and to give counsel the opportunity of calling evidence. There may be other circumstances in which the defence can validly claim to have been misled. In general, however, neither the silence, or even concurrence of counsel for the prosecution, nor the silence of the judge, will entitle counsel for the defence to assume that the judge will sentence upon the basis of his submissions.
In the present case, counsel put forward a version of the appellant’s role which the learned sentencing Judge found to be in conflict with the inferences which he drew from the primary facts deposed to in the sworn statements. There was ample material to support those inferences and he was perfectly entitled to discard the appellant’s version of his role. (Emphasis added)
[13] (1986) 41 SASR 105, 106.
In Perre, King CJ stressed the importance of the lawyer informing the judicial officer that there is agreement by the prosecution, for the conveying of that information engages an obligation in the judicial officer to inform the defendant that he is not prepared to sentence on the agreed basis, thus enlivening an opportunity for the defendant to consider the giving of evidence on the matter.
Regard should also be had to the cautionary remarks in R v Haydon. Doyle CJ (with whom Lander and Wicks JJ concurred) there stated:[14]
[28] Be that as it may, the matters put forward by Mr Haydon’s solicitor were matters in mitigation, and consistently with Olbrich were matters that had to be established or inferences that had to be drawn on the balance of probabilities. But, I emphasise, the judge had to be persuaded of these matters before it was appropriate to sentence on this basis. In deciding whether he was so persuaded, the judge was obliged to have regard to the evidentiary material before him, and to consider the inferences that should properly be drawn from that material.
[29] If the judge was not persuaded to make findings on the balance of probabilities consistent with the submissions advanced in mitigation, then subject to anything put by the prosecutor, the judge would sentence on the basis that Mr Haydon had taken part in the production of the drug, without giving him the benefit of the mitigating circumstances just identified.
…
[31] In any event, the judge did not accept the submission advanced for Mr Haydon. He was entitled to reject that submission on the basis of the evidentiary material before him. The judge did more than reject the submission advanced in mitigation. He made an affirmative finding of matters adverse to the interests of Mr Haydon. He accepted the submission by the prosecutor. I have set out above two short extracts from the remarks of the sentencing judge, indicating the approach that he took. I am satisfied that the judge made those findings on the basis of satisfaction beyond reasonable doubt. As noted above, the judge said that the evidence “overwhelmingly” pointed to the conclusion that he had reached. I agree with the judge.
[32] There was no unfairness about this. Counsel for the Director made it clear before the judge that he contested the submissions in mitigation, and sought a finding of circumstances of aggravation. The rival submissions before the judge made it clear that there was a dispute that the judge had to resolve. That must have been apparent to all participants. There was no need for the judge to indicate to Mr Haydon’s solicitor that the submissions in mitigation might not be accepted. They had been controverted by counsel for the Director. Fairness did not require the judge to state the obvious.
[33] Neither counsel sought to lead any evidence, or to cross-examine the makers of any of the statements before the judge. It fell to the judge to resolve the dispute on the basis of the materials before him, consistently with the principles stated in Olbrich, and that is what the judge did.
[34] The case is not one in which submissions were put forward relating to matters personal to the offender, of the kind as to which it is the practice for a judge to accept unless the submission is contested by the Crown or unless the judge indicates that the matter advanced might not be accepted. I agree with what Martin J says in Lobban (at [23]-[24]) about such matters. In any event, the matters advanced were contested.
[35] For these reasons there was no error of principle by the sentencing judge, nor was there any unfairness to Mr Haydon in the means by which the judge arrived at the basis upon which he was to sentence Mr Haydon. The findings that the judge made were open on the material before the judge. Indeed, they seem to me to be almost inevitable.
[14] (2001) 80 SASR 560, 566-568.
It can be seen that the gravity of the error that it is now asserted that Mr O’Connor made in failing to take the elementary procedure of indicating to the Magistrate that there was an agreement in place should not be underestimated.
On the appeal, Mr English sought to rely on the decision in R v Stubberfield.[15] That was an appeal against the recording of a conviction by a Judge of the District Court in circumstances where counsel for the appellant had submitted that the fact of a conviction could result in the defendant losing his employment. The prosecution indicated to the Judge that that submission was not challenged and the prosecution did not oppose the request of not recording a conviction. The Court of Criminal Appeal held that the Judge’s rejection of the submission without notice and without a possibility of producing evidence in support gave rise to a procedural unfairness and an error in the sentencing process. The Court said:[16]
[17] In the circumstances of the present proceeding, where the submissions put by the defendant were not disputed by the prosecution, there was a need for the judge to indicate that the submissions in mitigation might not be accepted. Not to do so gave rise to a procedural unfairness. As a consequence of this error in the sentencing process, it is necessary to consider the sentence afresh.[17]
[15] (2010) 106 SASR 91.
[16] (2010) 106 SASR 91, 98.
[17] Markarian v The Queen (2005) 228 CLR 357; Dinsdale v The Queen (2000) 202 CLR 321; House v The King (1936) 55 CLR 499.
Mr English’s reliance on that decision is largely misplaced. In Stubberfield, the prosecution openly indicated in open court that it accepted the position being put by the defence. It was that positive communication that engaged the obligation of the Judge to indicate that he might nevertheless not accept the submission, as referred to by King CJ in Perre.
Here the facts were different. The prosecution in court simply abstained from commenting; and that abstention may have been due to a belief by the prosecutor that their non-acquiescence had been earlier communicated to the defence solicitor, as recounted by Ms Francis in her affidavit.
Mr English would have been on firmer ground if he had cited either R v Lobban[18] or MJDH v Director of Public Prosecutions.[19] In R v Lobban, Martin J (Mullighan and Bleby JJ agreeing) said:[20]
[17] In R v Perre (1986) 41 SASR 105, King CJ pointed out that on a plea of guilty a sentencing judge is required ordinarily to determine the facts of the offending upon the basis of the sworn statements tendered by the prosecution. The statements now tendered by the prosecution are “verified” but not sworn. If an issue arises as to the primary facts disclosed by or to be inferred from those statements, and if resolution of the dispute is required for sentencing purposes, it may be necessary for a sentencing judge to undertake a disputed facts hearing. An issue having been joined, it is a matter for an offender whether or not to call evidence. A sentencing judge is not required to indicate any view of the facts. The offender is on notice that a view contrary to the offender’s position is being urged upon the judge. No unfairness can arise because the judge does not indicate a view during the disputed facts hearing or submissions.
[18] Different considerations may apply if specific issue has not been joined between the prosecution and an offender. As the majority of the High Court pointed out in a joint judgment in R v Olbrich (1999) 199 CLR 270, there is no general issue joined between the prosecution and an offender in sentencing proceedings (at 281). In my view, in the absence of specific joinder, the potential for unfairness exists.
(Emphasis added)
[18] (2001) 80 SASR 550.
[19] (2013) 116 SASR 180 (“MJDH”).
[20] (2001) 80 SASR 550, 554.
Here Martin J set out the first paragraph of the passage of King CJ reproduced above, and continued:[21]
[20] If a version of the criminal conduct put forward in submissions by an offender is inherently implausible or obviously contradicted by inferences plainly arising from the sworn statements, the remarks of King CJ in Perre are readily applicable. However, in other less obvious circumstances, in the absence of the prosecution taking issue with a version put forward in mitigation, an offender may be placed at an unfair disadvantage. Short of asking the judge whether the version put forward in submissions is accepted by the judge, an offender may not be in a position to decide whether it is necessary to call evidence. It is also appropriate to bear in mind that the Crown now takes a far more active role in sentencing proceedings than was the practice in 1986 when Perre was decided. In addition, in the following passage in Olbrich the High Court contemplated that it may be necessary to put an offender on notice of the need to call evidence (at 281):
Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
[21] There can be no inflexible rule. Each case must be determined according to its particular circumstances. The critical question is whether an offender, by some means, is on notice that a submission advanced in mitigation might not be accepted by the sentencing judge. (Emphasis added)
[21] (2001) 80 SASR 550, 555.
In MJDH Kourakis CJ said:[22]
[17] A defendant’s onus to prove a mitigating circumstance deprives the often heard prosecution submission, that the defendant’s account cannot be disputed, of any meaningful utility. The question is not whether the prosecution has positive evidence to contradict that mitigating circumstances. As this case shows, and Bray CJ observed in Law v Deed, the prosecution will seldom have any such evidence. The question is whether the prosecution accepts the defendant’s account or instead requires the defendant to prove a matter in mitigation on the balance of probabilities.
[18] The dictates of procedural fairness play an important part in this aspect of sentencing procedure. A sentencing court should not, in the face of a challenge by the prosecution, or on its own initiative, reject a defendant’s explanation without according the defendant an opportunity to give evidence on oath in support of it. As Bray CJ explained in Law v Deed:[23]
Some stories which might appear incredible when related in oratio oblique by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.
(Emphasis added)
[22] (2013) 116 SASR 180, 185.
[23] [1970] SASR 374, 378.
The use of apprehension reports
Before coming to a decision concerning the above matters, I turn to a further important cumulative matter in the present case.
It appears that the prosecution (with consent of the defence) regularly rely on apprehension reports to convey facts to the presiding Magistrate at, and in the present case prior to, a sentencing hearing. Here, the apprehension report (with the consent of the appellant’s solicitor) was supplied to the Magistrate in advance of the hearing.
As reproduced above, the apprehension report recited as follows:
ACCUSED:
In relation to all counts, stated that he was the owner of the vehicle and the driver at the time of the offences charged. Didn’t want to say why he was racing the other vehicle but then stated he went to meet someone at the service station situated at the corner of Gulfview Rd and Dyson Rd CHRISTIES BEACH when a vehicle blocked him in and he felt threatened. Stated that he wasn’t racing with the 2nd vehicle but was being chased by them. (There was a suggestion that this accused owed $500 for a drug debt.) Stated he had been ‘chased’ by them for about 30 minutes but wasn’t able to call police because the phone was in his pocket??? Stated that he left the scene of the accident because he wasn’t thinking. Stated that the weapons in his car belonged to someone else who had been in his car earlier and denied that the knife under the driver’s seat was his also blaming a previous occupant.
During the hearing of the appeal I received pursuant to s 42(4) of the Magistrates Court Act 1991 a copy of a transcript of the police interview conducted with the appellant following the incident the subject of this appeal (the interview transcript). Mr English told me that he had only received it the previous day and that it had not been available to the Magistrate.
It is clear upon reading the interview transcript that there are a number of discrepancies between the assertions in the apprehension report as to the appellant’s version of events given in the interview and the interview transcript. Some examples are as follows.
First, the assertion in the apprehension report that he “[d]idn’t want to say why he was racing the other vehicle” is inaccurate in that it conveys an implied admission that the appellant was involved in consensual “racing”. However, in the interview, the appellant made it very plain that he was not racing but was being chased and was trying to get away; something very different to “racing”.
Second, the statement in the apprehension report that “there was a suggestion that this accused owed $500 for a drug debt” appears to assert that the defendant had suggested this in the interview. In fact, the appellant simply stated that he owed $500 and that he did not want to say what the debt was for.
Third, the words “but wasn’t able to call police because the phone was in his pocket???” are misleading and, even with the cautionary questions marks, tend to suggest some sort of lame reason which is really the opposite of what the appellant actually said in his interview in the following passage:
Q(Inaudible) sorry, you were saying that you had been driving around for twenty minutes or half an hour being chased by them is that right?
A Yeah I don’t know how long
Q Um, in that time why didn’t your [sic you] ring Police?
A Cause I didn’t know that my phone was in my pocket and I didn’t think about it.
(Emphasis added)
Fourth, the side-swiping is described in the apprehension report as follows: “Both vehicles accelerated off from the left turn lane side-swiping each other as they travelled.” There is no summary of the appellant’s version as to this in the apprehension report, which suggests that the appellant did not give an explanation in response to this allegation. However, the appellant maintained in his interview that it was the other driver who was responsible for the side-swiping of the vehicles:
QMate the vehicle that you ended up side swiping on Beach Road outside of the Police Station do you know the occupants of that car?
A Yep and I didn’t side swipe them.
QWell there is a shit load of paint missing of [sic off] the side of your car and it corresponds with a shit load of paint missing of off their car.
A He side swiped me like four times.
QYou blokes were side by side just after you come off of Dyson road onto Beach Road you were side by side tromping it going up ah, when you come off Dyson Road sorry going up Beach Road as soon as it come out of that left turn lane you were both side by side and you started to go for it until you collided just past the median strip near the McDonald’s exit.
AYeah cause he put his foot down tried to get past me again and side swiped me again.
...
QWhen we saw you on Dyson heading south there was only two cars you and this other commodore and you appeared to be racing each other.
A He was the only one that chased me out of all of them.
Q You said you got chased by how many other cars?
A Yeah cause there was three or four other cars.
Q Now you’re saying there’s only that one that chased you?
AThat was the only one that followed me the whole time I don’t know where the other ones have gone.
This material is enough to cause real concern that the Magistrate may have proceeded to reject the appellant’s version given in submissions by Mr O’Connor, at least partly, on the basis of an incorrect impression of the appellant’s interview which was conveyed by the apprehension report.
Of course, I appreciate that a prudent solicitor would not permit a Magistrate to proceed on the basis of an apprehension report containing incorrect assertions to the detriment of his client. However, here the apprehension report was positively put forward by the prosecution as accurate at a time when a transcript was unavailable. The combination of various discrepancies renders the summary of the accused’s version of events in the apprehension report misleading and unfair to the appellant.
In the recent case of R v Crawford,[24] a police officer gave a statement attesting to what was said during a photographic array identification procedure, which statement was later discovered to be seriously misleading. I there said:[25]
[85] The emboldened passage in Plumb’s statement reproduced above purports to be what was said verbatim during that photographic array procedure but, as can clearly be seen from the agreed transcript, there is a marked difference, in both tone and content, between that emboldened passage and what was actually said. Plumb’s own sworn statement signed on 31 March 2014 is, at the very minimum, seriously misleading.
[24] [2015] SASCFC 112.
[25] [2015] SASCFC 112.
It is of high importance that police summaries of conversations in documents such as statements concerning identification procedures or apprehension reports are accurate and truthful. Serious miscarriages of justice may otherwise result.
Conclusion
In this case, the Magistrate was unaware of any agreement between the parties as to Mr Ludwig’s beliefs at the relevant times. However, during the interchange about the relevance of the appellant’s driving history, Mr O’Connor stressed his submissions about Mr Ludwig’s fear. This was not responded to by any prosecution submission alerting Mr O’Connor to a joinder of issue by the prosecutor on this important point.
Although Mr O’Connor failed to ensure that the Magistrate was aware of the agreement he believed to exist between the prosecution and himself, I think it is just open to find that there was here an unacceptable danger that the appellant was not on notice that the basic submission being advanced of fear held by the appellant might not be accepted by the sentencing Magistrate: Kourakis CJ’s remarks in MJDH[26] have particular importance here.
[26] (2013) 116 SASR 180, 185 [17]-[18].
Having regard to the cumulative force of this matter, taken together with the important matter of the content of the appellant’s interview being misrepresented in the apprehension report, I am persuaded that the sentence for the subject offence should be set aside.
I should make the following matters plain. At a re-hearing of this matter, the prosecution may take what attitude they consider appropriate to assertions in mitigation made by the appellant; the authorities referred to above will govern the question of onus of proof as to aggravating and mitigating factors. If the appellant opts to give evidence, the prosecution will have the right to cross-examine him fully.
Further, this is not a case in which it should be assumed that the original penalty imposed for the subject offence by the Magistrate, should act as some form of prima facie ceiling for the re-sentencing.
Indeed, while I have found the process to be flawed as stated above, it is also not particularly clear on what basis of facts the Magistrate did eventually sentence. Suffice it to say that the Magistrate re-sentencing the appellant will have the right to impose a sentence appropriate to the facts found unfettered by what has passed before.
Disposition of the appeal
I allow the appeal and set aside the sentence of eight months imprisonment. I remit count 1 of the complaint to the Magistrates Court for re-sentencing.
I will hear the parties as to the precise orders to be made.
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