Police v Nissen

Case [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

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AGLC
Police v Nissen [2014] SASCFC 77
Case
[2014] SASCFC 77
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the police against a sentence imposed on the respondent, Troy Robert Nissen, by a Magistrate. The respondent had committed two separate driving offences in April and June 2013, during which periods his driver's licence was suspended. The April offence involved a high-speed police pursuit, while the June offence included failing to give way to police and providing false identification.

The legal issues before the court were whether the Magistrate's sentence was appropriate, particularly in light of the police appeal arguing for a more severe penalty, and whether the principle of double jeopardy applied given the respondent had already faced two police appeals concerning his sentencing. The court also considered the principles governing the sentencing of first-time offenders for driving offences, including the appropriateness of suspended sentences and the general expectation of imprisonment for contumacious offending.

The court acknowledged the principle that imprisonment is the ordinary sentence for contumacious offending, even for first-time offenders, but that circumstances of the offence or offender may justify a less severe punishment. It was noted that the suspension of a sentence of imprisonment is rare for subsequent offenders. However, in this specific case, the court found that the respondent had been exposed to double jeopardy on two occasions. Consequently, the court determined that it was not appropriate to interfere with the Magistrate's decision, finding that the approach taken by the Magistrate fell within her discretion.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ
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.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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.