Police v LYND - [2007] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v LYND
[2007] SASC 232
Judgment of The Honourable Justice Anderson
26 June 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
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
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH
Prosecution appeal against sentence - respondent pleaded guilty to driving disqualified and deception - offence of driving disqualified committed two days after previous convictions for driving disqualified, deception and breach of bail - respondent received suspended sentence of 4 months for previous convictions - no evidence of suspended sentence put before magistrate in this matter - prosecution made application for adjournment to issue proceedings for breach of suspended sentence bond - magistrate refused application - no reasons given for refusal - magistrate ordered respondent to enter into 2 year good behaviour bond and pay compensation - whether sentence manifestly inadequate - whether magistrate erred in not allowing adjournment.
Held: magistrate erred in not allowing adjournment - evidence of prior convictions and suspended sentence were factors relevant to exercise of sentencing discretion - magistrate failed to take these matters into account - sentence quashed - matter remitted for further hearing and sentencing before another magistrate - appeal allowed.
Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 91; Criminal Law Consolidation Act 1935 (SA) s 139, referred to.
Everett v The Queen (1994) 181 CLR 295, applied.

POLICE v LYND
[2007] SASC 232
Magistrates Appeal: Criminal
ANDERSON J:
Introduction

This is a prosecution appeal against sentence from a decision of a magistrate. The respondent pleaded guilty to, and was convicted of, one count of deceiving another to benefit self or a third person and one count of driving under disqualification (“the current convictions”). This was not the first time that the respondent had been convicted of offences of this type, having last being convicted of both driving under disqualification and deception (the “previous convictions”) only two days before committing the first of the two offences relating to the current convictions.
The respondent was given a suspended sentence for these previous convictions. No evidence of this suspended sentence or any apparent breach of the suspended sentence bond was put before the magistrate hearing these charges, although the existence of the suspended sentence was discussed before him, including whether the current convictions required the magistrate to revoke the suspension of the sentence.
The police prosecutor made an application for an adjournment to allow him to prepare an application for a breach of bond, however the magistrate refused this application. The magistrate, from his reasons, did not consider revoking the suspension of the sentence, and did not give any reasons for that.
The course of the proceedings before the magistrate is set out in an affidavit from the police prosecutor, to which I refer later in these reasons.
The magistrate ordered that the respondent enter into a two-year good behaviour bond in the amount of $200 and also pay compensation to the deceived party and court costs. The appellant is appealing the sentence pursuant to s 42 of the Magistrates Court Act1991.
The appellant initially appealed against the inadequacy of the sentence. However, after hearing the parties on this issue I called the matter back on and raised the fact that the magistrate had apparently proceeded to sentence without being in possession of all the relevant facts. The appellant then applied to add a further ground of appeal, namely, that “the learned magistrate erred in not allowing an adjournment so as to allow the prosecutor to provide the magistrate with information relating to the breach of bond”. I allowed the application.
Background
The details of the two charges comprising this matter are discussed below.
First, on 12 January 2006, the respondent drove her motor vehicle from Adelaide to Whyalla while being disqualified from holding a drivers licence. Although the respondent was not apprehended on this date, she eventually admitted to having committed this offence to police, after originally telling them that her motor vehicle had been driven to Whyalla by her mother.
The respondent was charged with driving a motor vehicle whilst under disqualification, pursuant to s 91 of the Motor Vehicles Act 1959 (SA), for which the maximum penalty for a subsequent charge is two years imprisonment.
It is relevant that only two days earlier, on 10 January 2006 in the Mount Gambier Magistrates Court, the respondent was convicted of the previous convictions, which consisted of 7 counts of driving under disqualification, 4 counts of deception and 5 counts of breaching bail, and for which she received the suspended sentence of 4 months imprisonment, and entered into a bond in the amount of $400.
Regarding the second offence, on 11 February 2006, the respondent booked a room at the Limani Hotel in Port Lincoln for herself, her partner and her three children.
The respondent represented to the manager of the hotel that the accommodation would be paid for by her partner’s employer. The respondent then charged a further night’s accommodation and meals to her account at the hotel under the pretence that her partner’s employer would make payment the following day.
After requesting several times that the respondent pay her bill, the hotel manager called the police. The respondent admitted to the police that she had concocted the story about her partner’s employer paying the account, and insisted that she did not have any money to pay. She then agreed to pay the outstanding amount upon receiving her next pension payment. However on 16 February 2006 the police contacted the respondent’s bank, which confirmed that her pension had been paid but that the funds had been withdrawn immediately.
The respondent did not pay her account, which was for an amount of $471.20. She was subsequently charged with non-aggravated, deceiving another to benefit self, pursuant to s 139 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this charge is 10 years imprisonment.
The respondent pleaded guilty to both charges.
Course of hearing before the magistrate
In this matter, the appellant has filed an affidavit sworn by Mr Zaid Farran, the police prosecutor who appeared before the magistrate. In this affidavit, Mr Farran states that:
[Mr Farran] advised His Honour that on 10 January 2006 the respondent was sentenced by the Mount Gambier Magistrates Court in relation to 7 counts of driving under disqualification, 4 counts of deception and 5 counts of breaching bail. For that offending the respondent was sentenced to four months imprisonment suspended upon the respondent entering into a bond in the amount of $400 to be of good behaviour for two years.
His Honour asked [Mr Farran] whether the offences before the Court were a breach of that suspended sentence bond. I confirmed that this was so, but after checking police records, advised that a breach of bond file had not yet been laid. Mr Mancini told His Honour that he would make representations to the prosecution regarding a breach of bond if it were laid.
His Honour asked [Mr Farran] if I knew any further details about the respondent’s suspended licence. I checked the police prosecution brief. The only information I could find was a printout showing that the respondent’s learner’s licence in Victoria was suspended for “other reason”. I could not say whether this was court imposed or otherwise.
…
[Mr Farran] then made an application to have the matter stood over in the list until 2:15 pm that day so that I could lay an application for breach of bond, and have all matters finalised together. His Honour refused this and said that it was not the course to take.
Magistrate’s reasons
The magistrate’s reasons were particularly brief, and I will go on to say in due course that they were inadequate in the circumstances because there is no indication as to why the magistrate took the course that he did.
In his reasons, the magistrate acknowledged the respondent’s previous convictions and the suspended sentence imposed only two days prior to the commission of the offences comprising this matter. His Honour does not touch on the issue of revoking the suspended sentence. His Honour says that he is “puzzled” by what happened. He may be referring to the respondent driving in contravention of the order made against her and in respect of which a suspended sentence had been imposed, but it is not clear.
His Honour then goes on to say at [2] “I think I can take a very unusual course”.
His Honour then added that the fact that the offences were committed so shortly after the previous convictions made “things very difficult for me”.
There is really no clear indication from his reasons what the magistrate is doing at this stage.
The magistrate then mentioned the compassionate circumstances which he took into account in imposing the sentence. These circumstances included the fact that at the time of committing the offences the respondent had been troubled due to the death of her husband and that she had in fact been driving unlicensed with the intention of beginning a new life for herself and her children. He also acknowledged the respondent’s good behaviour since the time she was charged with deceiving the hotel. In relation to the charge of driving while disqualified, the magistrate also said that the respondent was not driving in contravention of any court order. Due to the deficiency of the evidence before him, it was not possible to state that the respondent was not driving in contravention of a court order. It in fact seems that the respondent was driving in contravention of a court order.
Issues on appeal
As I have mentioned, the notice of appeal in this matter originally included only one ground of appeal, namely, that the sentence imposed by the magistrate was manifestly inadequate.
I have taken into account the fact that this is a Crown appeal against sentence. I therefore apply Everett v The Queen (1994) 181 CLR 295 as discussed in Dinsdale v The Queen (2000) 202 CLR 321. The appellate court should not interfere with the exercise of the sentencing discretion unless there has been an error of principle, or that irrelevant matters were wrongly taken into account, or, as is the case here, the magistrate has failed to take account of some material consideration.
I called the matter back on because I had formed a tentative view that the magistrate had erred in refusing the application for an adjournment, and I wanted to hear the parties on this issue. I consider that the sentencing process has miscarried because of the decision of the magistrate to not allow the prosecution to place relevant information before the court.
On the face of it, the sentence imposed appears to be very lenient in light of the apparent breach of the suspended sentence bond.
Because the magistrate did not have the full facts before him, it is impossible to say whether the sentence imposed was manifestly inadequate. The proper course was therefore to allow the information to be placed before him so that it could be taken into account. The magistrate did not follow that course.
Whether the magistrate erred in not allowing an adjournment
The magistrate does not give any reasons for his refusal of the prosecutor’s application for an adjournment. As pointed out by Mr Mancini, counsel for the respondent, the failure to provide reasons for such a refusal is not normally in itself regarded as an error. It could not be reasonably expected of a magistrate to provide reasons for every procedural decision made during the course of every hearing.
In this case, however, there does not seem to be any valid reason why the short adjournment requested should not have been granted. Given the circumstances of the case, it is my view that this was an error because it has meant that the sentencing process has miscarried. In these circumstances, the magistrate should have given reasons for refusing the adjournment.
Conclusion
It is my view that the existence of a suspended sentence bond and the fact that the further conviction could well require the suspension to be revoked, were factors relevant to the sentencing of the respondent. Through not allowing the adjournment the magistrate put himself in a position where he was not able to fully consider this important factor when exercising his sentencing discretion. The prosecutor had advised him that it was likely that a conviction in this matter would require the respondent’s suspended sentence to be revoked.
The fact that an adjournment was not allowed and the fact that the further information was not before the magistrate is the likely cause for what I regard as inadequate reasons. The magistrate has indicated on the one hand that he is puzzled, and then he says he can take a very unusual course without saying what the unusual course is, but at the same time indicating that in the circumstances it is making things very difficult for him. It is my view that these matters have to be resolved by having all the information before the one magistrate.
I have been made aware by counsel that since the magistrate handed down his sentence, an application for breach of suspended sentence bond was filed separately and is to be heard in September. In light of this, I think it appropriate that the hearing of that application be expedited and that the application be heard concurrently with this matter, but before a different magistrate. It is my view that the interests of justice require such a course.
I would therefore quash the sentence handed down by the magistrate, and order that the matter be remitted to the Magistrates Court for further hearing, with consideration to be given to all relevant factors, including the outcome of the hearing for the breach of the suspended sentence bond. The respondent can then be sentenced having regard to all relevant factors.
I will ensure that a copy of my reasons is delivered to the Chief Magistrate so that she can consider the future of this matter.
Without wishing in any way to interfere with her role, it is my view that it would be preferable in the circumstances for the September hearing to be expedited, if that is at all possible, and that both that matter and this matter be heard at the same time by a different magistrate.
Appeal allowed.