Police v Nissen - [2014] SASCFC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v NISSEN
[2014] SASCFC 77
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice David)
22 July 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
The respondent, Mr Nissen, was sentenced to six months imprisonment for driving whilst suspended on two different occasions, firstly in April 2013 and again in June 2013. However, the Magistrate suspended that sentence of imprisonment. Following an appeal, a Judge of this Court set aside the sentence and remitted the matter to the Magistrates Court where Mr Nissen was resentenced but discharged without penalty on a supervised bond to be of good behaviour for 12 months.
The appellant appeals against the sentences imposed for the April and June offences on the ground that the Magistrate imposed a sentence that was manifestly inadequate.
Held per Kourakis CJ (David J agreeing) allowing the appeal:
It was manifestly inadequate having regard to Mr Nissen’s prior offending and his blatant disregard of the order of suspension and bail condition imposed when he was released after the April offences (Kourakis CJ at [10]).
Individuals who are subject to disqualification orders should be left in no doubt about the serious consequences of disregarding such orders whether they do so occasionally, frequently or totally. Disqualification orders are critically important in ensuring obedience to the rules of the road and thereby to the safety of the public (Kourakis CJ at [20]).
To allow the Magistrate’s sentence to stand would seriously erode sentencing standards for offences of this kind. It is particularly necessary for the guidance of Magistrates to emphasise the importance of general deterrence in sentencing repeat offenders and those offenders who show little regard for orders of suspension and disqualification (Kourakis CJ at [37]).
The order imposing the bond must be set aside and the appellant imprisoned for a period of three months (Kourakis CJ at [50]).
Held (per Gray J) (dissenting):
The approach of the Magistrate, although unusual, was within power and within her sentencing discretion (at [78]).
Mr Nissen has been exposed to two police appeals and has twice been placed in double jeopardy. In these circumstances, it is not appropriate to interfere with the Magistrate’s decision (at [80]).
Road Traffic Act 1961 (SA) s 45B, s 46, s 47; Motor Vehicles Act 1969 (SA) s 91; Bail Act 1985 (SA) s 17; Summary Offences ACt 1953 (SA) s 74; Criminal Law (Sentencing) Act 1988 (SA) s 39(1), referred to.
Police v Cadd and Others (1997) 69 SASR 150; Everett v The Queen (1994) 181 CLR 295, discussed.
Coombe v Douris (1987) 47 SASR 324; Eldridge v Bates (1989) 51 SASR 532; WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147; Police v Papadopoulos [2008] SASC 325; South Australian Police v Bastow (1996) 24 MVR 276, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Contumaciousness", "general deterrence"

POLICE v NISSEN
[2014] SASCFC 77
Full Court: Kourakis CJ, Gray and David JJ
KOURAKIS CJ.
Background

On 19 February 2013 a police officer served on the respondent, Mr Nissen, a notice pursuant to s 45B of the Road Traffic Act 1961 (SA) (the RTA) suspending his licence for driving at an excessive speed. Mr Nissen subsequently drove in contravention of that suspension on two occasions. He was later convicted and sentenced on two sets of offences arising out of those contraventions. The first group of offences were committed on 11 April 2013 (the April offences). The April offences were:
·driving a motor vehicle in a manner that was dangerous to the public contrary to s 46(1) of the RTA and driving whilst holding a suspended licence contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) (the MVA); and
·failing to comply with a direction to submit to an alcotest, contrary to ss 47E(2) and 47E(2a) of the RTA.
The April offences also breached a suspended sentence bond which had been imposed on Mr Nissen on 5 December 2012.
After his apprehension for the April offences, Mr Nissen was bailed on the condition that he not occupy the driver’s seat of a car.
The second group of offences were committed on 21 June 2013 (the June offences). They were:
·breaching a condition of his bail contrary to s 17(1) of the Bail Act 1985 (SA);
·driving whilst holding a suspended licence contrary to s 91(5) of the MVA;
·failing to give way to a police vehicle; and
·stating false personal particulars contrary to s 74A(3)(b)(i) of the Summary Offences Act 1953 (SA).
After he was apprehended on the June offences, the appellant spent seven days in custody before he was again released on bail.
Mr Nissen had three previous convictions for the offence of driving whilst disqualified. In 1999 he was fined. In 2000 he was convicted of two offences of driving whilst disqualified for which a suspended sentence of imprisonment was imposed.
On 11 September 2013 a Magistrate imposed a sentence of six months imprisonment on both of the drive under suspension offences but suspended that sentence. An appeal by the Police against that sentence was allowed by a Judge of this Court with the consent of Mr Nissen. On 4 December 2013 the Judge set aside the sentence and remitted the matter to the Magistrates Court. At the time that order was made, Mr Nissen was in custody on other matters and his bail on the matters subject to the appeal was revoked.
On 14 January 2014 Mr Nissen was resentenced for the April and June offences. The Magistrate identified the penalties she would have imposed but for the time the appellant had spent in custody on remand. The Magistrate expressed the view that six weeks imprisonment would have been appropriate for the April offences of driving in a manner dangerous and driving whilst disqualified, and that a period of one month imprisonment would have been appropriate for the breach of bail and driving disqualified offence committed in June. The Magistrate then took into account the time Mr Nissen had spent in custody and ordered, on the offences of driving whilst disqualified and driving in a manner dangerous, that Mr Nissen be convicted but discharged without penalty on a supervised bond to be of good behaviour for 12 months. Mr Nissen was also disqualified from holding or obtaining a licence for a period of 12 months on the offence of driving in a manner dangerous. For the offence of giving of a false name, Mr Nissen was convicted and fined the sum of $500. He was convicted and fined $1,100 and disqualified for nine additional months for failing to submit to an alcotest. On Mr Nissen’s admission that he had breached the earlier suspended sentence bond, the Magistrate revoked the suspension and ordered that the period of 20 days imprisonment be served from 4 December 2013.
The Police appeal against the sentences imposed on the April and June offences on the ground that the learned Magistrate, in imposing a bond to be of good behaviour for the offences of driving in a manner dangerous and driving whilst disqualified, imposed a sentence that was manifestly inadequate.
After allowing for the backdating of the revoked suspended sentence, the appellant has spent about 28 days in custody (seven immediately after the June offence and 21 days while awaiting resentencing) referrable to the driving under suspension and in a manner dangerous offences. It was that time in custody which the Magistrate considered justified releasing Mr Nissen without penalty. It will be observed that on the Magistrate’s own intimation of the terms of imprisonment (six weeks and one month) she would have imposed but for the time spent in custody a further period of imprisonment was called for unless it was appropriate to make all sentences, including the revoked suspended sentence, largely concurrent. The June offences were committed after Mr Nissen had been apprehended and then bailed on the April offences. The revocation of the suspended sentence would in the ordinary course operate cumulatively. This was not an appropriate case for concurrent sentences. The period Mr Nissen had spent in custody failed to reflect the Magistrate’s own assessment of the appropriate penalty. Moreover it was manifestly inadequate having regard to Mr Nissen’s prior offending and his blatant disregard of the order of suspension and bail condition imposed when he was released after the April offences. I would set aside the order imposing a bond and order instead that the appellant be imprisoned for a period of three months. My reasons follow.
The Offences
The Magistrate described the objective circumstances of the offences as follows:
[3]As regards the offences on 11 April 2013, I am told that at nearly midnight he was on Prospect Road, pulled into a service station, got out and walked into the service station area. As he exited he was spoken to by a police officer who asked him to submit to a random breath test and for identification. The police officer then walked towards the police vehicle, the defendant then took off at speed. He travelled along Prospect Road, Park Terrace and Torrens Road at speeds possibly exceeding 120 km/h. As noted, it was shortly before midnight, the police vehicle had its lights and sirens activated. The defendant was pulling away from the police vehicle. The road was dry, the traffic was light, the defendant overtook a number of other vehicles. They travelled through residential areas, plus other areas adjoining the parklands. The pursuit, I am told, went for about a minute and was then terminated because it was too dangerous. At the time the defendant was suspended from driving. Five days after the incident he surrendered himself to the police.
[4]Then on 21 June 2013 he was on bail not to be seated in the driver’s seat of a motor vehicle. At about 1.50 a.m. he was on Golden Grove Road and failed to give way to a police vehicle. He was stopped and asked for identification. He said he didn’t have any and gave a false name and a vague address. He was later identified via police records, again he was disqualified.
At the time of the April and June offences, Mr Nissen was in a relationship with a woman who was drug dependent and emotionally disturbed. According to Mr Nissen, the April offences occurred after his partner suddenly left their home with a handful of Valium. Mr Nissen drove around looking for her even though he well knew that his licence had been suspended. At around midnight he pulled into a service station. As Mr Nissen exited he was asked for identification by a police officer who also requested that he submit to a random breath test. Mr Nissen panicked and drove away causing the pursuit described by the Magistrate. A similar excuse was given for again driving under suspension in June.
The Magistrate summarised the appellant’s antecedents as follows:
[6]The defendant has a significant criminal history. I am told in February of 2010 he was convicted of urinating in a public place, which I don’t consider to be of any relevance here. In March 2010, possessing drugs, unlawful possession, possessing prescribed equipment and firearms offences. In December 2009 an offence of affray and assault and obstructing a police officer in Queensland. In South Australia, about the same time a charge of breaching bail. Of relevance in 2001 he was convicted of driving without due care, speeding where the speed was 45 km over the speed limit. In 2000 convicted of two offences of driving disqualified and failing to truly answer and at that time was given a period of imprisonment of two months, which was suspended upon his entering into a good behaviour bond. In 1999 a charge of driving in a reckless, or dangerous manner and failing to truly answer and also in 1999 an offence of driving disqualified. He has further offences in New South Wales in 1997 and 1998.
The Magistrate’s Reasons
The Magistrate approached sentencing on the basis that each of the two occasions of offending warranted unsuspended sentences of imprisonment. However, her Honour took the view that the time Mr Nissen had spent in custody on remand and on home detention bail was the equivalent of the sentences she would have imposed allowing Mr Nissen to be released on a bond. The Magistrate gave the following reasons for her sentence:
[16]I consider with regard to the charge of driving in a manner dangerous and driving whilst disqualified on 11 April 2013 that periods of imprisonment should be imposed. Also with regards to the breach of bail and the driving disqualified on 23 June 2013.
[17]With regard to the sentence of imprisonment, which was suspended, I note that the offending on 21 June 2013 also involved a breach of bail, so that is an offence of a similar kind to the one for which the suspended sentence was initially imposed. I must take into account however, the time that the defendant has spend in custody. This matter has been somewhat complicated because of the manner in which it has proceeded.
[18]For the benefit, more than anything else, of any other court, I would consider with regard to the manner dangerous and the driving disqualified, committed on 11 April 2013 that a period of imprisonment of six weeks would be appropriate. I note that the defendant does have a history for driving disqualified, but I also note that his last conviction for a similar offence was back in 2000, so it has been many years since he has been before the court for offending of that kind.
[19]I also note with regard to the offending on 21 June 2013, with respect to the breach of bail and the driving disqualified, I would consider a period of imprisonment to be appropriate and I would impose a period of one month. However, I must also take into account the time that the defendant has spent in custody. The defendant initially had seven days on remand and I am told that he has been in custody since 4 December last year. With regard to the suspended sentence bond that was imposed in December of 2012, I note that there was a period of 20 days imprisonment imposed on that particular matter. With regard to that, I revoke the suspension and order that the period of 20 days imprisonment be served, but to date from 4 December 2013.
[20]As regards the sentences which I have referred to on the other matters, I have noted the penalties which I would consider appropriate. However, I note the time that the defendant has already spent in custody and I note that he has spent some time on remand and I note that he did succeed for some period of time at least, in completing the original bond that was imposed. With regard to those matters I therefore do not propose to actually impose those periods of imprisonment. With regard to the manner dangerous and the driving disqualified on 11 April 2013 and the breach bail and driving disqualified on 21 June 2013, the defendant will be convicted, enter into a good behaviour bond for a period of 12 months in the amount of $500 to come up for sentence if called upon. With regard to the manner dangerous he will be disqualified from holding or obtaining a driver’s licence for a period of 12 months. With respect to the fail to submit to an alcotest, convicted and fined $1,100 and disqualified for nine months to be served cumulatively with the 12 months. So it is a total period of disqualification of 21 months.
Sentencing Standard for Offences of Drive Disqualified
In Police v Cadd and Others Doyle CJ held that the ordinary punishment for a first offence of this kind is imprisonment. The Chief Justice continued:[1]
The ordinary punishment is applicable to the ordinary case. The ordinary punishment is an approximate standard to be applied making due allowance for the circumstances of the particular case.
An offender who is aware that he or she is in breach of the law, who has no substantial excuse for the breach, in effect admits to indifference to the law's requirement in favour of the offender's own convenience. The need to deter others from committing the same offence, and the corrosive effect upon licence disqualification as a punishment of this offence, combine to require severe punishment in such cases unless the law is to be mocked. But the circumstances of the offence and the circumstances of the offender may disclose matters which provide a basis for a less severe approach, quite apart from the relevance of the circumstances of the offender to the question of suspension.
[1] Police v Cadd and Others (1997) 69 SASR 150 at 167.
On the question of suspension, Doyle CJ said:[2]
I accept that the offence of driving while disqualified is one that ordinarily warrants imprisonment, in the sense explained above, and that its seriousness may make it difficult to justify suspension of the sentence of imprisonment. I accept that circumstances justifying suspension are unlikely to be found in what are routine or run of the mill aspects of the circumstances of this offence. But individual consideration must still be given to these matters, and, in particular, to the circumstances of the offender. Matters such as previous good character, the likelihood of the offender responding to a final warning (given by means of a suspended sentence), the community interest in rehabilitation without imprisonment, the traditional reluctance to imprison an offender for the first time, the consequences for an offender and the offender's family (where relevant) of imprisonment and other matters all require careful consideration under s 38 of the Sentencing Act.
…
For my part, rather than say that a suspended sentence will be exceptional for a person convicted of driving while disqualified, I would say that the offence is of a type and tends to be committed in circumstances such that cases in which the circumstances of the offence support suspension will be unusual (eg, cases of genuine emergency; cases in which the driving is really trivial). However, the circumstances of the offender must also be considered and may nevertheless warrant the giving of a last chance by means of a suspended sentence. There is no point at all in attempting to categorise the circumstances personal to the offender that will warrant this approach. Previous good character, youth and immaturity, genuine contrition are obviously relevant. These and other relevant matters are not to be used routinely to impose a suspended sentence, but nor are they to be disregarded.
[2] Police v Cadd and Others (1997) 69 SASR 150 at 167-168.
Duggan J was also not dissuaded to depart from the sentencing standard, set in Coombe v Douris[3] and Eldridge v Bates,[4] that the imposition of a sentence of imprisonment is appropriate in the usual case of an offence of driving whilst disqualified. Duggan J justified that standard in this way:[5]
The aspects of deterrence, disobedience to an order, the importance of ensuring compliance with a widely used sanction and the difficulty in detecting offences of this nature are all factors which justify the approach taken in the previous cases.
[3] (1987) 47 SASR 324.
[4] (1989) 51 SASR 532.
[5] Police v Cadd and Others (1997) 69 SASR 150 at 173.

The approach of Duggan J to the question of suspension is, with respect, both sound and insightful. Duggan J said:[6]
In my view the considerations which justify the statement that a custodial sentence is appropriate for the ordinary case are relevant also in determining whether to suspend the sentence in a particular case. I would go further and hold that they are important factors and that, in many cases, they will justify a refusal to exercise the discretion in favour of an offender. In considering whether there is "good reason" to suspend a term of imprisonment for this type of offence I think it must be a reason or reasons of such a nature as to justify the exercise of the discretion despite the weight to be given to the matters of deterrence and the like to which I have referred. It may be inappropriate to say that only in exceptional cases will suspension be justified in those cases where a custodial sentence is appropriate in that the requirement of "good reason" focuses on the particular circumstances of the offence or the offender or both. I would prefer to stress the relevance to the exercise of the discretion of the public policy considerations which I have identified and to emphasise that there will be many instances in which these considerations will prevail over subjective and personal factors so as to render an immediate term of imprisonment appropriate.
[6] Police v Cadd and Others (1997) 69 SASR 150 at 173.
Mullighan J expressed the applicable sentencing standard as follows:[7]
That standard, accepting these matters and giving appropriate emphasis to general deterrence should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case. I use the word "contumacious" in the sense that it is understood in the law … It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in ss 10 and 11 of the Criminal Law (Sentencing) Act and established sentencing principles are sufficient further guide to the sentencer.
[7] Police v Cadd and Others (1997) 69 SASR 150 at 179.
In my respectful opinion the implication in that passage, that general deterrence only assumes greater relative importance when the offender has displayed a “total disregard” for the order of disqualification, is wrong in principle. As the judgments of Doyle CJ and Duggan J show, general deterrence will always have an important part to play in sentencing for offences of this kind. The sentences of disqualification and suspension imposed on traffic offenders are critically important in ensuring obedience to the rules of the road and thereby the safety of the public. Persons subject to disqualification orders should be left in no doubt about the serious consequences of disregarding them whether they do so occasionally, frequently or totally. Plainly enough, in a case of “total disregard” of the order, it would require a particularly powerful combination of mitigatory circumstances to support a sentence other than imprisonment but even lesser degrees of contumacy must be strongly discouraged.
On the question of suspension, Mullighan J said:[8]
In my view, there can be no sound reason in principle to exclude a first offender from the option of a suspended sentence regardless of the circumstances of both the offence and the offender. The first offender could qualify for consideration in accordance with the principles established in these cases. If having considered all of the circumstances, the sentencer thinks that there is good reason to do so, then the discretion is to be exercised. I do not think there is any sound reason to establish a sentencing standard for a person who commits this offence for the first time which fetters the exercise of the discretion any further.
Of course, different considerations must apply to the offender who is before the court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.
(Underlining added)
[8] Police v Cadd and Others (1997) 69 SASR 150 at 180.
I wish to emphasise, relevantly to the circumstances of this case, Mullighan J’s observation on the rarity of a suspension of a sentence of imprisonment in the case of a subsequent offender.
To address the diverse holdings of the majority in Cadd, Doyle CJ added an addendum to his judgment in these terms:[9]
As appears from the reasons of the members of the court, the court is divided on the issues raised in these appeals.
A majority of the court (Doyle CJ, Duggan and Mullighan JJ) is in agreement on the principles to be applied in dealing with a prosecution appeal against a sentence imposed by a magistrate, when the appeal complains that the sentence imposed is inadequate.
The same majority supports the view that it is appropriate for this Court to give authoritative guidance to magistrates on the approach to be taken to sentencing persons, convicted of driving a motor vehicle while disqualified from holding or obtaining a driving licence.
However, each member of the majority has expressed that approach in differing terms.
Nevertheless, each member of that majority accepts, as Mullighan J says, that the punishment should be imprisonment "in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment ... ". Mullighan J goes on to explain what he means by that. Two members of the majority (Doyle CJ and Duggan J) would go further than Mullighan J. But the approach of Mullighan J is common to all three judgments.
That approach, therefore, commands majority support from the court and should be followed by magistrates and in appeals from magistrates.
There is no significant difference of approach as between the majority on the question of the length of the term of imprisonment to be imposed, when imprisonment is appropriate, or on the question of the approach to be taken when considering whether a sentence of imprisonment should be suspended. In the nature of things, it is not possible to give precise guidance on such matters.
This addendum, which is provided to give assistance to magistrates, has the support of all members of the court.
[9] Police v Cadd and Others (1997) 69 SASR 150 at 171-172.
To my mind, the addendum merely states the minimum position which Doyle CJ was able to identify in the judgments of the majority. It most certainly does not elevate a finding of contumacy to a necessary precondition to a sentence of imprisonment. Moreover the addendum sets that minimum for the guidance of Magistrates. It is not the ratio of the decision and is not the only proposition for which Cadd is authority. Given the restrictive definition of “contumacious” proffered by Mullighan J, that minimum standard will apply to very few cases because there are very few disqualified persons who continue to drive precisely as they had before the orders were made. An order of disqualification will usually moderate a defendant’s driving behaviour at least to some extent. However, as I have already observed, any disregard for orders of disqualification must be deterred. It is not for the subject of the order for disqualification to judge when his or her personal circumstances justify a refusal to comply with a judicial, legislative or administrative order.
The identification of the minimum position for contumacious offenders leaves the sentencing of offenders generally to be determined in accordance with sentencing principles. Those principles are correctly identified in the judgments of Doyle CJ and Duggan J. They may be summarised as follows.
The financial and human cost of personal injury and property damage caused by traffic offences weighs heavily on the community. The most effective measures for deterring serious and persistent traffic offenders and thereby protecting the public are licence disqualifications and suspensions. As King CJ observed in Coombe v Douris,[10] those orders are ineffective if they are generally disregarded. Driving in contravention of a licence disqualification or suspension is difficult to detect and, for that reason, it is critical that when an offender is apprehended the disqualification and suspension orders are strongly enforced.
[10] (1987) 47 SASR 324 at 325.
The feature of an offence of driving whilst disqualified from holding a licence, or whilst a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving whilst holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender’s personal circumstances.
The measure of an offender’s attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach.
It can generally be inferred that a person who drives when disqualified, or whilst holding a suspended licence, after having been convicted of an earlier offence, has a contempt for or, at least, a dismissive attitude to orders of disqualification or suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence.
It follows that, as a matter of principle, sentences of immediate imprisonment will often be justified in the case of first offenders who show little regard for orders of disqualification or suspension. As for repeat offenders like the appellant, it is difficult to contemplate circumstances which, consistently with the matters of general principle to which I have referred, would justify a non‑custodial sentence.
Application to this Appeal
I have already referred to the blatant nature of Mr Nissen’s offending. The breach of the condition of bail imposed after the April offences was in itself an offence of sufficient gravity to attract a period of imprisonment. The reason proffered for the offending was not credible. The appellant was fortunate that the Magistrate accepted that, on the two occasions that he drove to find his emotionally disturbed partner, he happened to have been found by the police. Be that as it may, even proceeding on those spurious assertions, the excuse proffered by them is far from compelling. There was no obvious medical emergency.
Importantly, at the time of the April offences, Mr Nissen had been convicted of driving unlicensed and had thrice been convicted of driving whilst disqualified. On the previous offences of drive whilst disqualified, the appellant had received suspended terms of imprisonment. The period of imprisonment imposed and then suspended totalled two months and seven days.
The maximum imprisonment for driving whilst disqualified for a repeat offender is two years imprisonment. The offence of driving in a manner dangerous is also punishable by a maximum of two years imprisonment.
On the April offences a period of imprisonment of six weeks can only be regarded as a moderate sentence for a repeat offender with no compelling reason to drive at all. I would impose a sentence of seven days for the offence of dangerous driving. There was a great risk to the children in his car and to other members of the public in driving at those speeds on major arterial roads. The police officers were also exposed to a significant risk. Those two sentences may, as an act of considerable leniency, be ordered to run concurrently.
As to the June offence a sentence of 12 weeks imprisonment is called for on the offence of driving under suspension and breaching his bail condition. Mr Nissen’s conduct in driving so soon after he was bailed for the April offences and for no good reason can only be described as flagrant disregard of both the notice given pursuant to s 45B RTA and the Court in imposing the bail condition.
The total of 18 weeks imprisonment would in the ordinary course be served in addition to the revoked suspended sentence of 20 days. As I earlier observed the time spent in custody over and above the time served on the revoked suspended sentence before Mr Nissen was released on the bond was just three weeks. It follows that, allowing for those three weeks, a sentence of 15 weeks should have been imposed by the Magistrate.
This is however a prosecution appeal against sentence. The double jeopardy principles discussed in Everett v The Queen[11] and Cadd[12] provide that this Court should only interfere where it is “necessary to avoid … manifest inadequacy or inconsistency in sentencing”. In my view to allow the Magistrate’s sentence to stand would seriously erode sentencing standards for offences of this kind. In particular it is necessary for the guidance of Magistrates to emphasise the importance of general deterrence in sentencing repeat offenders and those offenders who show little regard for orders of suspension and disqualification.
[11] (1994) 181 CLR 295 at 299-300.
[12] (1997) 69 SASR 150 at 156-159 per Doyle CJ.
Office of Crime Statistics and Research
An “Information Note” of the Office of Crime Statistics and Research dated May 2014 was provided to this Court. It shows that driving under suspension or disqualification remains all too prevalent.
The Office prepared an “Information Note” on the numbers of driving licence offences reported in the three financial years from 1 July 2010 to 30 June 2013 and the penalties imposed in the Magistrates Court on offenders in those years.
The Information Note reported as follows.
In 2010-11, there were 4,356 finalised cases involving a driving license offence, accounting for one-quarter (25.3%) of all cases involving driving, motor vehicle and traffic offences. More specifically, 2,845 (16.5%) of driving license offences involved driving while license suspended or cancelled and a further 1,401 (8.1%) involved driving without a licence.
These findings were consistent with cases finalised in 2011-12 with driving license offences accounting for 23.2% of all cases involving driving, motor vehicle and traffic offences (n=4,228). Within the driving license category, 2,590 (14.2%) involved driving while license suspended or cancelled and 1,507 (8.3%) involved driving without a license.
In 2012-13, the numbers were similar with driving license offences accounting for 22.1% of all finalised cases involving driving motor vehicle and traffic offences (n=4,145). More specifically, 2,576 (13.7%) of driving license offences involved driving while license suspended or cancelled and a further 1,401 (7.5%) involved driving without a license.
In 2010-11, 990 (24.9%) of the 3,980 finalised cases involving a driving licence offence resulted in a suspended sentence, with only 243 (6.1%) recording a penalty of imprisonment. Within the subcategory, driving while license suspended or cancelled, over one-third (947 or 36.8%) received a suspended sentence while 236 (9.2%) recorded a major penalty of imprisonment.
In 2011-12, 798 (22.1%) of the 3,610 finalised cases involving a driving licence offence resulted in a suspended sentence and 180 (5.0%) recorded a major penalty of imprisonment. More specifically, for the category driving while license suspended or cancelled, 764 (35.1%) received a suspended sentence as the major penalty and a further 172 (7.9%) recorded a major penalty of imprisonment.
In 2012-13, the proportion of driving license offences that resulted in a major penalty of imprisonment was slightly lower, at 3.7% (144 of the 3,891 finalised cases) with 746 (19.2%) receiving a suspended sentence. Within the driving license category, 5.9% of cases (142) involving an offence of driving while license suspended or cancelled received a major penalty of imprisonment and 30.0% (717) received a suspended sentence.
The most common major penalty for driving license offences over the three year period was a fine with the proportion of finalised cases resulting in a fine increasing from 36.3% in 2010-11, to 43.8% in 2012-13.
The sentencing summaries given in the Information Note suggest that general deterrence has not been given the relative weight which the applicable sentencing considerations demand for offences of this kind.
I acknowledge that Mr Nissen has twice received non-custodial sentences for his offending in the Magistrates Court and twice faced appeals against those sentences. However Mr Nissen consented to the setting aside of the sentence first imposed and, importantly, to the matter being remitted instead of having the penalty fixed by the appeal Judge. Ultimately, I have concluded that the gross inadequacy of the penalty imposed by the Magistrate must be remedied.
However, I would withhold imposing the full extent of the condign punishment I referred to in [36] because this is the second prosecution appeal faced by Mr Nissen. I would impose a further sentence of three months imprisonment for the offences of driving whilst under suspension, driving in a manner dangerous and breach of bail pursuant to s 18A.
GRAY J.
This is an appeal by the police against sentence.
Background
On 14 February 2013, the driver’s licence of the defendant and respondent, Troy Robert Nissen, was suspended for the period 15 February to 14 August 2013 in respect of a speeding infringement.
The relevant events leading to the offending the subject of this appeal occurred on 11 April and 21 June 2013.
The April 2013 Offending
Shortly before midnight on 11 April 2013, the defendant drove into a service station on Prospect Road, left his vehicle and walked into the service area. As he left the service area, the police stopped him and informed him that he would be subjected to a mobile random breath test. The police requested that he produce identification while they arranged for the alcotest instrument to be brought from the police vehicle. As one of the police officers walked towards the police vehicle, the defendant drove from the service station. As he did so, he spun the wheels and left at speed. The police gave chase, activating the flashing lights and siren on Prospect Road, Park Terrace and Torrens Road. The police vehicle attained speeds in excess of 120 kilometres per hour, but the police noticed that the defendant’s vehicle was pulling away. The police determined that it was too dangerous to continue and terminated their pursuit. At the time, the roads were dry, the weather was fine and the traffic on the roads was light. The pursuit lasted for a period of about 60 seconds.
The defendant handed himself in to police on 16 April 2013. He was charged with several driving and related offences. He did not apply for police bail, but on the following day, he was granted bail by a Magistrate. A condition of the defendant’s bail agreement was that he not be seated in the driver’s seat of a motor vehicle unless he held a current licence for that class of motor vehicle.

The defendant’s explanation for driving on 11 April 2013 was that he and his partner, who experienced mood swings and used illicit substances, had been arguing and she had left. She was unstable and upset, and the defendant was concerned for her wellbeing. He went to look for her. On being approached by police, he panicked.
The June 2013 Offending
At about 1.50 am on 21 June 2013, the defendant, when driving on Golden Grove Road, failed to give way to a police vehicle. He was stopped and asked for identification. The defendant said that he did not have any. He gave a false name and address. The defendant was identified, arrested and charged with several offences relating to this incident. Police bail was refused. However, on 29 July 2013, bail was granted by a Magistrate.
In respect of his driving on 21 June 2013, the defendant’s explanation for his offending again was that he was looking for his partner who had left following an argument. She had taken a handful of Valium before she left and he was concerned for her wellbeing.
The Court Proceedings
The defendant was first dealt with by a Magistrate on 11 September 2013 for the offending in both April and June 2013. On 4 December 2013, an appeal by the police against the sentence then imposed was allowed by consent by a Judge of this Court. The proceedings were remitted to the Magistrates Court for resentencing by a different Magistrate. The defendant’s bail was revoked.
On 15 January 2014, following negotiations and the consolidation of charges, the defendant was sentenced following his pleas of guilty for the following offences:
-failure to comply with a direction of a police officer for the purpose of making a requirement to submit to an alcotest, contrary to sections 47E(2) and 47E(2a) of the Road Traffic Act 1961 (SA);
-drive in a manner dangerous to the public, contrary to section 46(1) of the Road Traffic Act;
-two counts of driving while disqualified, contrary to section 91(5) of the Motor Vehicles Act 1959 (SA);
-breach of a bail agreement contrary to section 17(1) of the Bail Act 1985 (SA); and
-providing false details to the police, contrary to section 74A(3)(b)(i) of the Summary Offences Act 1953 (SA).
In addition, the defendant was also dealt with for the breach of a suspended sentence bond imposed on 5 December 2012 for the offence of breach of bail.
The Magistrate, in the course of her remarks, noted the defendant’s criminal antecedents:
The defendant has a significant criminal history. I am told in February of 2010 he was convicted of urinating in a public place, which I don’t consider to be of any relevance here. In March 2010, possessing drugs, unlawful possession, possessing prescribed equipment and firearms offences. In December 2009 an offence of affray and assault and obstructing a police officer in Queensland. In South Australia, about the same time a charge of breaching bail. Of relevance in 2001 he was convicted of driving without due care, speeding where the speed was 45 km over the speed limit. In 2000 convicted of two offences of driving disqualified and failing to truly answer and at that time was given a period of imprisonment of two months, which was suspended upon his entering into a good behaviour bond. In 1999 a charge of driving in a reckless, or dangerous manner and failing to truly answer and also in 1999 an offence of driving disqualified. He has further offences in New South Wales in 1997 and 1998.
The Magistrate summarised the defendant’s personal antecedents:
As regards the offence of breaching bail, counsel for the defence has noted the defendant did apply for permission to leave the State to go for work, he got permission, but then went overseas impulsively with a friend. It is noted the defendant is 35 years of age, was at Modbury Primary School and then St Pauls High School. When he left school he worked as a chef, and then a refrigeration mechanic. I am told he started his own business up about four years ago, which has been a reasonably successful business. He is divorced with two young children and had care of those children prior to being incarcerated.
The Magistrate then addressed the offending in April and June 2013 and summarised the relevant circumstances as follows:
As regards the offending I take into account, with regard to the offences on 11 April 2013, that his manner of driving was obviously dangerous and he has pleaded guilty to that charge. He should, at the time, not have been driving at all. I note the submission that has been made, that he panicked on that occasion, when he saw the police officers. Perhaps to an extent, that is not surprising. The fact is he shouldn’t have been driving at all, but I accept the submission that has been put, that he had some concern for his partner. I note that he surrendered to the police about five days later. Exactly why is not clear to me and I note that he did not give any explanation to the police at the time, but nevertheless, he did surrender to them.
As regards the offending on 21 June he was on a condition on his bail that he should not have been in the driver’s seat of a motor vehicle at all and certainly should not have been driving disqualified. I note on that occasion there are no additional charges relating to his actual manner of driving, but there is also the charge of giving a false name.
The Magistrate took the view that periods of imprisonment were warranted in respect of the driving charges arising from the incident of 11 April 2013, as well as for the breach of bail and the driving while disqualified offence of 23 June 2013. The Magistrate also noted the similarity of the offending of 23 June 2013 to the offence giving rise to the suspended term of imprisonment. The Magistrate remarked:
For the benefit, more than anything else, of any other court, I would consider with regard to the manner dangerous and the driving disqualified, committed on 11 April 2013 that a period of imprisonment of six weeks would be appropriate. I note that the defendant does have a history for driving disqualified, but I also note that his last conviction for a similar offence was back in 2000, so it has been many years since he has been before the court for offending of that kind.
I also note with regard to the offending on 21 June 2013, with respect to the breach of bail and the driving disqualified, I would consider a period of imprisonment to be appropriate and I would impose a period of one month. However, I must also take into account the time that the defendant has spent in custody. The defendant initially had seven days on remand and I am told that he has been in custody since 4 December last year. With regard to the suspended sentence bond that was imposed in December of 2012, I note that there was a period of 20 days imprisonment imposed on that particular matter. With regard to that, I revoke the suspension and order that the period of 20 days imprisonment be served, but to date from 4 December 2013.
It is clear that the Magistrate considered an immediate custodial sentence to be appropriate in respect of several offences. However, the Magistrate had to bring to account the time spent in custody. In all, it was agreed between the parties that the defendant, when an allowance was made in respect of time spent on home detention bail, had spent the equivalent of 72 days in custody. Of this, a period of 20 days was referable to the revocation of the suspended sentence. It was accepted that the defendant had not contested his guilt from the outset. In this circumstance, it may be assumed that a reduction of 25 per cent was made on that account.
It is against this unusual background that the Magistrate sentenced the defendant.
-In respect of the offence of drive in a manner dangerous, the two counts of driving while disqualified and the breach of bail, the Magistrate discharged the defendant without penalty upon his entry into a 12 month good behaviour bond in the sum of $500.00, to come up for sentence if called upon.
-In respect of the offence of drive in a manner dangerous, the Magistrate disqualified the defendant from holding or obtaining a driver’s licence for 12 months.
-In respect of the offence of failure to comply with a direction to undertake an alcotest, the Magistrate fined the defendant $1,100.00 and disqualified him from holding or obtaining a driver’s licence for nine months. This disqualification was cumulative on the earlier referred to 12 month disqualification.
-In respect of the offence of providing false details to police, the Magistrate fined the defendant $500.00.
-In respect to the breached suspended sentence bond, the Magistrate ordered the defendant to be imprisoned for 20 days, suspended upon his entry into a good behaviour bond in the sum of $500.00 backdated to 4 December 2013.
-In respect of the good behaviour bond imposed for the offences described above, the Magistrate considered that for the driving in a manner dangerous and the driving disqualified on 11 April 2013, imprisonment of six weeks would be appropriate. The Magistrate considered that for the breach of bail and driving disqualified on 21 June 2013, imprisonment of one month would be appropriate. The Magistrate did not, however, consider it appropriate to actually impose those terms of imprisonment having regard to time spent in custody including on remand and the defendant “succeed[ing] for some period of time at least, in completing the original bond that was imposed”.
The Appeal
Double Jeopardy
On the hearing of the appeal, a question arose as to the application of the principle in Everett[13] concerning double jeopardy and a prosecution appeal. The Solicitor-General, who appeared for the police, accepted that the Everett principle applied. He drew the Court’s attention to WorkCover Corporation of South Australia v Musolino,[14] where this Court resolved that the Everett principle had application because of the element of double jeopardy. Duggan J observed:[15]
In my view, the prospect of the respondent in the present case being required by an order of this Court to serve a sentence which a judge of the court has suspended justifies the application of the Everett principles. Accordingly, intervention should be regarded as exceptional. However, justification for interference may be found in cases where there is demonstrated error and where it is “necessary to avoid manifest inadequacy or inconsistency in sentencing”.
[Footnote omitted.]
[13] Everett v The Queen (1994) 181 CLR 295, 299.
[14] WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147.
[15] WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147, [44].
This decision was followed and applied by this Court in Papadopoulos, where Kelly J observed:[16]
Although this is a prosecution appeal it comes after a successful appeal by the respondent to a single judge of this Court.
The principles applicable to prosecution appeals against sentence in these circumstances were discussed in WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147. In that case, Duggan J at [44] held that the considerations relevant to prosecution appeals stated by the High Court in Everett v the Queen (1994) 181 CLR 296 apply in the case of prosecution appeals against a sentence imposed in the Magistrates Court, therefore intervention should be regarded as exceptional. However, justification for interference may be found in cases where there is demonstrated error and where it is necessary to avoid manifest inadequacy or inconsistency in sentencing.
In my view, the same considerations apply to the disposition of the issues which arise on this appeal.
[16] Policev Papadopoulos [2008] SASC 325, [11]-[13], Doyle CJ and Anderson J agreeing.
This appeal necessarily exposes the defendant to double jeopardy for a second time. It is to be recalled that the defendant’s initial sentence was set aside by consent. He was then resentenced and it is that resentencing that is the subject of the present appeal.
The police first addressed the April 2013 offending. It was submitted that the defendant’s offending was very serious. It was contended that the driving while disqualified offence warranted an immediate custodial penalty. Attention was drawn to the fact that the offending occurred in circumstances where the defendant could expect little leniency because of his prior criminal antecedents. Emphasis was placed on the contumacious nature of the offending.
The police then addressed the June 2013 offending and pointed out that this offending was committed while the defendant was on bail for similar offending and that this was, in the circumstances, a serious matter of aggravation. Again, it was pointed out that the defendant could not expect the leniency that would attach to a first offender because of his criminal antecedents. It was argued that the defendant’s offending called for the sentence to reflect the need for both specific and general deterrence. It was suggested that cumulative penalties should be imposed in respect of the offending in April and June. It was submitted that the defendant’s explanations for his offending stretched credulity and should have been rejected. Attention was drawn to the following remarks of Cox J in Bastow:[17]
Assertion is not the same as proof, and where a defendant's explanation appears to be inherently improbable or leaves important questions unanswered, or where in any event the prosecutor reasonably seeks to test it, the Court should invite the defendant to give sworn evidence on the matter. It is for him to satisfy the Court that the normal penalty should not be applied in his case. Obviously the prosecutor is entitled to be heard on that question. All of this may take a little time, but the proper and consistent administration of s91 is important.
[17] South Australian Police v Bastow (1996) 24 MVR 276, 278 (Cox J).
At the time of the offending, the defendant had previously been convicted of driving while disqualified. He had been sentenced to imprisonment twice. On each occasion that sentence had been suspended. It was said that it could be inferred that the defendant drove in total disregard of the disqualification and in knowledge of the consequences. Against this background, it was submitted that discharging the defendant without further penalty, upon entry into a good behaviour bond, for two counts of driving while disqualified, driving in a manner dangerous and breaching bail, was manifestly inadequate.
One further complaint was advanced. It was said that there was no basis on which the Magistrate could discharge the defendant without further penalty upon his entry into a good behaviour bond in respect of the offence of driving in a manner dangerous, the offences of driving while disqualified and the offence of breach of bail. Attention was drawn to section 39(1) of the Criminal Law (Sentencing) Act 1988 (SA) which provides:
Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)   to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
The power of the court to discharge a person without imposing a penalty upon condition of entry into a bond is to be exercised only if “good reason exists for doing so”. It was contended that time spent in custody could not amount to good reason within the meaning of section 39(1).
Counsel for the defendant contended that the sentences imposed in respect of all offending were within the sentencing discretion of the Magistrate. In particular, counsel submitted that the Magistrate was entitled to exercise her discretion to find that good reason existed in relation to each of the occasions of offending to impose a sentence pursuant to section 39 of the Sentencing Act, namely a conviction and discharge without sentencing upon entry into a good behaviour bond.
In my view, the submission of the police in relation to section 39(1) of the Sentencing Act would have the effect of fettering the broad discretion within that section. The section first requires a finding of guilt. That occurred in the present case on the Magistrate’s acceptance of the defendant’s pleas of guilty. The discretion to discharge with or without recording a conviction and without imposing a penalty is enlivened by the court finding that good reason exists for doing so. In this matter, the Magistrate found good reason. The circumstances were unusual. The defendant had spent time in custody that equated to a notional overall head sentence of about three and a half months before a reduction for the pleas of guilty. It is apparent that the Magistrate considered that the 10 weeks in custody was a sufficient custodial penalty. The Magistrate was entitled to have regard to the submissions concerning the defendant’s personal circumstances, his employment, and his contrition and remorse in determining to order release on a bond.
The Magistrate recorded convictions. The Magistrate ordered that, in the event of the bond being breached, the defendant would have to come before the Court for resentencing. Cumulative licence disqualifications were imposed. Fines were imposed in respect of the offences of failing to comply with a direction to undertake an alcotest and the offence of providing false details to police.
In summary, the defendant spent time in custody, was fined, was released on a bond to return to be resentenced in the event of a breach and was disqualified from holding or obtaining a driver’s licence for a period of 21 months. I consider that the approach of the Magistrate, although unusual, was within power and within her sentencing discretion.
Submissions by the police were put to the Court about the decision in Cadd[18] and it was suggested that it may be appropriate for this Court to review aspects of that decision.[19] In my view, it would not be appropriate in the present proceeding to do so. The Magistrate proceeded in accordance with that decision in concluding that the defendant’s relevant conduct was contumacious and that an immediate custodial term was required. As discussed above, the defendant had served time in custody.
[18] Police v Cadd (1997) 69 SASR 150.
[19] In particular, the police submitted that the focus on contumaciousness in relation to the offence of driving while disqualified has, since the decision in Police v Cadd (1997) 69 SASR 150, assumed a significance that distorts the overall approach to sentencing.
Earlier in these reasons, I discussed the principle of double jeopardy. In this proceeding, the defendant has been exposed to two police appeals and has twice been placed in double jeopardy. In these circumstances, it is not appropriate to interfere with the Magistrate’s decision. However, more importantly, I consider that the approach taken by the Magistrate was within her discretion.
Conclusion
I would dismiss the appeal.
DAVID J: I would allow the appeal for the reasons given by the Chief Justice. I agree with the orders he proposes.