Police v Maraldo - [2005] SASC 479

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MARALDO
Judgment of The Honourable Chief Justice Doyle
16 December 2005
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
An appeal by the Police against the decision of a Magistrate to impose a non-parole period (in relation to a head sentence of imprisonment for 12 months) that expired "at the rising of the Court" after which the respondent was released - on appeal - a finding that the Magistrate erred in sentencing to imprisonment for 10 months for three counts of driving whilst disqualified and for imposing a non-parole period of one day - respondent resentenced - application of s 38(2a) of the Criminal Law (Sentencing) Act 1988 - consideration of "special circumstances" for the purposes of s 58(4)(a) of the Criminal Law (Sentencing) Act 1988 - appeal allowed.
Correctional Services Act 1982 (SA) s 66, s 68; Criminal Law (Sentencing) Act 1988 s 18A, s 32(5)(a), s 38(2a), s 58(3), referred to.
R v Buckman (1988) 47 SASR 303; Police v Cadd (1997) 69 SASR 150, considered.

POLICE v MARALDO
[2005] SASC 479
Magistrates Appeal: Criminal

DOYLE CJ: The police have appealed against a sentence imposed by the Magistrates Court. The grounds of appeal are that the Magistrate exceeded his power in making the orders he made, or alternatively that the sentence he imposed is manifestly inadequate.
Ms Maraldo pleaded guilty to three charges of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence. She also pleaded guilty to some less serious traffic offences.
Ms Maraldo also admitted the breach of a bond to be of good behaviour, upon which bond a sentence of two months’ imprisonment had been suspended. That suspended sentence was imposed in respect of an earlier offence of driving while disqualified from holding or obtaining a driver’s licence.
The Magistrate revoked the suspension of the sentence, and directed that the sentence of two months’ imprisonment be served. On the three charges of driving while disqualified from holding or obtaining a driver’s licence the Magistrate imposed a single sentence of imprisonment for ten months. That sentence of imprisonment was directed to be served cumulatively upon the sentence of two months’ imprisonment.
In relation to the combined head sentence of 12 months’ imprisonment, the Magistrate fixed a non-parole period “until the rising of the Court”. Ms Maraldo was therefore released from custody when the court adjourned at lunch time on the day in question.
On appeal the appellant submits that in making the order as to the non-parole period, the Magistrate exceeded his powers. The submission is that only the Parole Board can order the release of a prisoner on parole, and the Magistrate has purported to order the release of Ms Maraldo when he had no power to do so. The point is made that by s 66 of the Correctional Services Act 1982 (SA) it is the function of the Parole Board to order the release of a prisoner who is liable to serve a total period of imprisonment of less than five years. The point is further made that by s 68 of that Act the release of a prisoner on parole must be subject to certain specified conditions, and no such conditions were imposed. Further, or in the alternative, the submission is that the sentence is manifestly inadequate because of the nominal non-parole period that was fixed.
The case is a difficult one, as the Magistrate recognised. The appeal raises the prospect of Ms Maraldo having to serve a sentence of imprisonment, despite her release from custody on 26 October 2005, some seven weeks ago. In all the circumstances, it is desirable that the matter be disposed of without delay.
Ms Maraldo is 31 years of age.
She has a lengthy history of offences, beginning in 1996 when she was about 22 years of age. Many of these offences are traffic offences. She has been convicted on numerous occasions for driving an unregistered and an uninsured vehicle. More significantly, she has been convicted of driving while disqualified from holding or obtaining a driver’s licence on one occasion between 1999 and late 2004. Apart from these traffic offences she has been convicted for dishonesty offences and drug offences, although these can be regarded as relatively minor offences.
The pattern of offending, and in particular the pattern of offences involving driving an unregistered and uninsured motor vehicle, indicates an element of disregard of the law. That is something that has to be borne in mind when considering Ms Maraldo’s difficult personal circumstances. I will come to that in a moment.
I turn to her more recent offending history.
On 6 December 2004 she appeared before the Magistrates Court on a series of charges. They included several charges of driving an unregistered and uninsured motor vehicle, and four separate charges of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence. For present purposes it suffices to record that Ms Maraldo was sentenced to imprisonment for two months. That sentence was suspended upon her entering into a bond to be of good behaviour for a period of two years. She was to be under the supervision of a Community Corrections Officer. She was disqualified from holding or obtaining a driver’s licence for a period of one month. She was warned about the consequences of driving while disqualified.
On 26 December 2004, only 20 days later, she was detected driving again. She was again charged with driving a motor vehicle while disqualified from holding or obtaining a driver’s licence, with a speeding offence and with failing to truly answer questions, arising out of giving a false name to the police officer who apprehended her. This is the first of the charges which gave rise to the sentence now under appeal.
On 11 January 2005 Ms Maraldo again appeared before the Magistrates Court. She pleaded guilty to driving an unregistered motor vehicle, and to driving an uninsured motor vehicle. These offences had occurred in December 2003. Relevantly for the present purposes she was disqualified from holding or obtaining a driver’s licence for a period of six months from 11 January 2005.
On 24 February 2005 Ms Maraldo was again detected driving. She was charged with driving while disqualified, with failing to truly answer a question and with falsely representing that she was the person named in a driver’s licence that she produced on that occasion.
On 8 July 2005 Ms Maraldo was again apprehended for driving a motor vehicle was disqualified from holding or obtaining a driver’s licence. This is the third of the charges that gave rise to the sentence now under appeal.
Once again I comment that on the face of things this is a troubling continuation of a pattern of offending, of the very kind in respect of which she had the benefit of a suspended sentence.
Ms Maraldo came before the Magistrates Court on 26 October 2005 on the charges arising out of the incidents on 26 December 2004, 24 February 2005 and 8 July 2005.
Application was also made for an order and finding that Ms Maraldo had breached the bond entered into on 6 December 2004. The application relied on the offences committed on 26 December 2004 and 24 February 2005.
Ms Maraldo pleaded guilty to all of the offences charges. She admitted the breach of the bond.
The Magistrate found the breach of bond proved. That finding was inevitable. The Magistrate was not satisfied that the failure to comply with the conditions of the bond was trivial, nor was he satisfied that there were proper grounds upon which the failure should be excused: see s 58(3) of the Criminal Law (Sentencing) Act 1988. Accordingly, he revoked the suspension of the sentence of two months’ imprisonment. No criticism can be made of those conclusions. Nor was any criticism made on appeal. The breaches of the bond cannot be regarded as trivial. Nor, consistently with decided cases, would it have been proper to excuse the failure to comply with the bond. The breaches reflect a failure to recognise the importance of complying with the earlier order of the Court. The activation of the suspended sentence is not a disproportionate consequence to the further offences, bearing in mind that they are repeated offending of the same kind as that which resulted in the suspended sentence: see R v Buckman (1988) 47 SASR 303.
In relation to the three counts of driving while disqualified from holding or obtaining a driver’s licence, the Magistrate exercised the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988, recorded a conviction on each count and imposed a single sentence of ten months’ imprisonment. He ordered that that be cumulative upon the sentence of two months’ imprisonment.
That resulted in a combined head sentence of 12 months’ imprisonment. In considering the non-parole period to be fixed, the Magistrate said that it was “appropriate that the defendant be released back into the community to continue with her efforts at rehabilitation”. He fixed a non-parole period which was to expire on “the rising of the Court”. He directed that she be imprisoned until then, and that she then be released on parole.
As to the other offences he ordered that convictions be recorded but that no further penalty be imposed.
I turn now to the matters upon which the Magistrate relied, in making what he acknowledged was an unusual order.
First of all, he accepted the explanations offered by Ms Maraldo for her offending.
She said that on 26 December 2004 she was in a state of despair and distress. About a week before this the Family Court had ordered that custody of her three children be given to her mother. I will refer to the background to that shortly. This was in the context of a poor relationship with her mother, and difficulties that Ms Maraldo had had in caring for the children. She had been permitted to see her children for about three hours only on Christmas Day. She felt depressed and suicidal on 26 December. She thought that if she did not get out of the house in which she was living she would relapse into drug use, or possibly attempt suicide. She drove her car to get away from the house.
As to that explanation I make the point that it does not fully explain why she chose to drive a motor car. However, it appears that at the time her thinking was disturbed.
As to the offence on 24 February 2005 Ms Maraldo said that she was due to collect her children from school for the purpose of access pursuant to court order. The friend who was due to drive her to the school did not arrive on time. She decided to drive herself to the school because she was afraid she would miss out on access to the children. The Magistrate again accepted that her “thought process was overborne”.
As to the offence on 8 July 2005, Ms Maraldo said that she was at a friend’s place and began to suffer serious stomach pains. She set off to drive to a nearby hospital. Because of the severe pain she pulled over into a car park. She had not realised that the police had been following her until they pulled up along side her. As to this offence I make the obvious point that the explanation is an inadequate one. She must have realised that she could ring for an ambulance, or ask someone to drive her to the hospital. That is a point that the Magistrate himself made.
Nevertheless the Magistrate did accept these explanations. He did so, I gather, without hearing any sworn evidence from Ms Maraldo. She should have been invited to give evidence in support of these explanations, but nothing turns on that now.
I turn now to Ms Maraldo’s personal circumstances. I will be as brief as I can.
She had had an unsettled upbringing. Her parents separated when she was 12 years of age. Her relationship was not good with either of them. She had had a number of fairly short term relationships with different men, resulting in the birth of three children to three different fathers. Ms Maraldo’s relationship with her mother is particularly poor. She believed that her mother was coming between her and her children. I gather that Ms Maraldo had suffered from depression and anxiety for about ten years. During this period there had been a considerable amount of drug abuse on her part. She had begun to experiment with alcohol at the age of about 15, and over a number of years had used ecstasy, cocaine, LSD and amphetamines. At the age of 23 years she began to use heroin. She was a heavy user of drugs. All of these circumstances appear to have given cause for concern about her ability to care for her children. As I have already mentioned, the role of her mother in relation to the children had been a source of dispute between Ms Maraldo and her mother. This resulted in Ms Maraldo’s mother being given custody of the children, apparently shortly before Christmas 2004, and Ms Maraldo having only limited access to the children. The separation from her children was a cause of further stress for Ms Maraldo.
In short, she had a difficult upbringing. She was a person of limited resources. She was struggling with drug addiction and depression. She was having difficulty coping with life generally, and having difficulty in caring properly for her children. The care of her children and the loss of custody of them was something that she also had difficulty coping with.
All of these matters are summarised in a thorough and most helpful pre-sentence report that was before the Magistrate.
The report indicates that Ms Maraldo was under the supervision of the report writer, as a result of her entering into the bond referred to earlier. Ms Maraldo had been reporting consistently to the social worker who was the writer of the report. The report writer had previously supervised her pursuant to a bail order.
The effect of the report was that Ms Maraldo was making a real effort to grapple with her drug addiction and with her depression. The point was made in the report that her offending behaviour was linked to “her chaotic lifestyle, substance abuse issues in the past and family court issues concerning her children”. The report noted that Ms Maraldo had acknowledged her need to change, and that she was making real efforts to do so. She was receiving appropriate help from a number of different sources.
The Magistrate was impressed by the difficulties that Ms Maraldo had experienced in her life, and by the efforts that she was making to overcome her various problems. The Magistrate took the view that Ms Maraldo had made substantial progress in dealing with her problems, and that if she continued on the course she had adopted, she would “become a valuable member of the community and regain care and control of her children and become the mother they require”. The Magistrate acknowledged that having regard to her history it was arguable that she should be imprisoned, because she had been shown leniency in the past. However, he took the view that to imprison her would “prejudice the excellent effort and achievement” that she had made so far in pursuing her own rehabilitation.
The Magistrate fixed the non-parole period that he did so that Ms Maraldo could continue with her efforts at rehabilitation.
The matters to which the Magistrate referred are significant considerations. They mitigate the seriousness of Ms Maraldo’s offending. Once the offences are understood in their context, they are not as serious as they might otherwise appear to be. But, having said that, the offences are serious. Having regard to the Magistrate’s findings it may well be that on 26 December Ms Maraldo’s thought processes were significantly disturbed. However, it appears to me that on the other two occasions she made what can only be described as very poor judgments, although I accept that these poor judgments were to some extent the product of her circumstances.
It is also necessary to put the offending behaviour in its broader context. Ms Maraldo’s record suggests that she has a history of poor judgment and short term thinking. There are indications that she does not take seriously her obligation to comply with the laws that govern users of motor vehicles. That conclusion seems to me to be unavoidable. She has had plenty of warnings about her behaviour.
With that background I turn to the issues on appeal.
It is arguable that the fixing of the non-parole period by the Magistrate was invalid, because of the operation of s 66 and s 68 of the Correctional Services Act 1982 (SA). It is arguable that Ms Maraldo could not be released without an order from the Parole Board, and could not be released without appropriate conditions being attached.
However, it is not necessary to decide that point. It is not necessary because I accept the further submission that the order was erroneous because such a short non-parole period could not be justified.
With all respect to the Magistrate, there is an inherent contradiction in the approach that he took. If the offences for which he sentenced Ms Maraldo called for a sentence of imprisonment of ten months, it was inconsistent with that conclusion to take the view that she should be released without serving any period of imprisonment.
In fixing a non-parole period a court must consider all of the factors that it considers in fixing a head sentence. That is well established. Of course, in fixing a non-parole period a court may give greater weight to factors personal to the offender than is given when fixing the head sentence. But despite that, considerations of punishment, deterrence and rehabilitation remain relevant. As has been said often, the non-parole period can be described as the minimum period of imprisonment that must be served having regard to considerations of punishment, deterrence and rehabilitation.
If the head sentence imposed was warranted, it is impossible to justify, having regard to considerations of punishment and deterrence, the release of Ms Maraldo without her serving any period of imprisonment. The Magistrate must have failed to give adequate weight to considerations of punishment and deterrence. He allowed his thinking to be overwhelmed by the rehabilitation of Ms Maraldo. That was a weighty consideration, and a particularly influential one in the present case, but it could not override consideration of the other matters that fell for consideration.
I consider that the Magistrate has erred. The error is one of principle, and is a significant error. The order fixing the non-parole period is wrong. It must be set aside. To allow the non-parole period to stand would send the wrong message to sentencing courts and to the public: cf Police v Cadd (1997) 69 SASR 150 at 156-159. It is not enough simply to record that an error was made. It is appropriate to set aside the whole sentence. It would be artificial to consider only the fixing of the non-parole period.
From some points of view it would be preferable that the matter be remitted to the Magistrates Court for Ms Maraldo to be re-sentenced, with evidence being given on oath. However, as I have already remarked, some seven weeks have now passed since she was first sentenced. A further delay would occur before she could be dealt with in the Magistrates Court. I was invited to re‑sentence Ms Maraldo on the material before me, and I propose to do so.
I proceed on the basis that Ms Maraldo’s explanations for her offending are truthful. However, she knew that she was breaking the law, and she knew the risk that she ran. It has to be made clear to her that court orders must be obeyed.

I begin by noting that no criticism has been made of the order directing that Ms Maraldo serve the period of two months’ imprisonment that was suspended when she entered into the bond.
I turn now to the offences of which the Magistrate sentenced her. I bear in mind that this is a prosecution appeal, and that supports extending a measure of leniency, because the appeal involves reversing an order that left Ms Maraldo at liberty. Having regard to the circumstances in which the offences of 26 December were committed, and bearing in mind that Ms Maraldo was not a first offender in relation to the offence in question, a short sentence of imprisonment was appropriate. Imprisonment was appropriate because of Ms Maraldo’s record, and because she must have realised that she was breaking the law when she chose to leave the house by driving the car. There were other ways of getting away from the house. A sentence of imprisonment for two weeks would be an appropriate punishment for that offence. As to the offences of 24 February, there is less that can be said by way of mitigation. Nevertheless, in the circumstances a relatively lenient sentence is appropriate. A sentence of imprisonment for one month would be appropriate. As to the offence of 8 July, the circumstances of mitigation are even less weighty there. As the Magistrate accepted her explanation, so will I, although I must say I have some reservations about it. A sentence of six weeks’ imprisonment would be appropriate for that offence. It is convenient to exercise the powers conferred by s 18A of the Sentencing Act, and to impose a single sentence of imprisonment for three months in respect of the three offences.
That sentence should be cumulative upon the two months’ suspended sentence that must now be served. That results in a total head sentence of five months’ imprisonment.
Mr White, counsel for Ms Maraldo, urged me to exercise the power conferred by s 54(4) of the Criminal Law (Sentencing) Act 1988 and to reduce the term of the suspended sentence. He referred to R v Buckman (1988) 47 SASR 303, and in particular the reasons of King CJ at 304 and of Jacobs J at 307. He submitted that the attempts Ms Maraldo had made to rehabilitate herself, despite all the difficulties she faced, were a significant change of circumstances which, had they existed at the time of the suspended sentence, would have justified a lesser sentence. I disagree. Ms Maraldo’s efforts are commendable, but they are, in the end, what the Magistrate would have hoped would occur in response to the suspended sentence. They are the justification for the suspended sentence, not a reason to reduce it.
As the Magistrate recognised, the order directing that the sentence of two months’ imprisonment be served has the consequence that the sentence of imprisonment that I have imposed cannot be suspended: s 38(2) of the Sentencing Act.
I am not permitted to fix a non-parole period in relation to the sentence that I would impose, because by s 32(5)(a) of the Sentencing Act a non-parole period cannot be fixed in respect of a person liable to serve the total period of imprisonment of less than one year.
However, I have power pursuant to s 38(2a) of the Sentencing Act to direct that Ms Maraldo serve a specified period of imprisonment, and to suspend the remainder of the term of imprisonment on condition that she enter into a bond. I take the view that I can exercise that power even though part of the period of imprisonment is attributable to a previously suspended sentence of imprisonment. I consider that it is appropriate to exercise this power. The circumstances in which the offending occurred, and Ms Maraldo’s personal circumstances, warrant me extending some leniency yet again, to encourage her to change her approach.
Mr White urged me to suspend all but a very short part of the total of five months’ imprisonment. I doubt whether I have power under s 38(2a) to suspend the two months’ imprisonment that was originally suspended. Section 58 of the Criminal Law (Sentencing) Act 1988 appears to set a limit to the orders that can be made in relation to a suspended sentence. In any event, I consider that in light of the further offences, it would not be appropriate to suspend that part of the sentence that is attributable to the original suspended sentence.
Having regard to these considerations I would revoke the suspension of the sentence of imprisonment for two months, direct that Ms Maraldo serve a period of two months’ imprisonment, being the period of the previously suspended sentence, and direct that the remainder of the sentence, three months, be suspended on condition that she enter into a bond to be of good behaviour. That is a merciful course to take. It gives Ms Maraldo another chance. In compliance with s 38(2b) the period of the bond will be for three months from the time of her release. Conditions of the bond are that she be of good behaviour and comply with all conditions of the bond, that she be under the supervision of a Community Corrections Officer and obey the directions of that Officer with respect to counselling and drug abuse, and that she report after her release to the offices of the Department of Correctional Services at 13 Gillingham Road, Elizabeth SA 5112, phone 82827020.
As to the other offences before the Magistrate, the offences of speeding, failing to truly answer questions, and making a false representation to police, I would follow the same course as did the Magistrate and order that convictions be recorded, but that no further penalty be imposed. Following the same course as the Magistrate, I would order that court fees, levies and prosecution costs not be imposed.
Accordingly, I order that this appeal be allowed, that the sentence imposed by the Magistrates Court be set aside, and I make the orders and impose the sentences just referred to by me.