Police v Reid - [2011] SASC 210

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v REID
[2011] SASC 210
Judgment of The Honourable Justice Gray
1 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - OTHER MATTERS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
Crown appeal against sentence - defendant pleaded guilty in the Magistrates Court to five offences committed on three separate occasions, between November 2010 and June 2011; three offences of driving whilst disqualified and two offences of driving with the prescribed concentration of alcohol, on one occasion with a reading of 0.093 and on the other a reading of 0.108 - each offence constituted a breach of a previously imposed 20 month suspended sentence bond, imposed for similar offending - application made to enforce the breached bond - where the Magistrate exercised his powers pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and discharged the defendant on a supervised bond to be of good behaviour in the sum of $100.00 for a period of 18 months - the Magistrate took into account 42 days the defendant had spent in custody - Magistrate refused to enforce the breached bond - in relation to the first prescribed concentration of alcohol offence, Magistrate imposed a driver's licence disqualification of 12 months, and a disqualification of two years in relation to the second offence - the first was ordered to commence at the expiration of previously imposed periods of disqualification and the second ordered to be served consecutive upon the first - complained on appeal that imposition of a good behaviour bond manifestly inadequate - further complained that the one year licence disqualification for the first prescribed concentration of alcohol offence was below the statutory minimum required by the Road Traffic Act 1961 (SA) - finally complained that Magistrate in error in taking no action in regard to the breaches of the suspended sentence bond, in circumstances where the Magistrate made no finding that there were proper grounds to reduce the suspended sentence or refrain from revoking the suspension.
Consideration of principles relevant to sentencing for contumacious offending which forms part of a pattern of persistent disregard of the rules of the road.
Held: appeal allowed and defendant resentenced - having regard to poor driving record of the defendant, sentence imposed was manifestly inadequate - Magistrate erred in imposing a licence disqualification less than the statutory minimum - Magistrate in error in refraining from revoking the suspended sentence of imprisonment - after making a reduction of 25 per cent on account of guilty pleas and having regard to the 42 days spent in custody defendant resentenced in respect of the three driving whilst disqualified offences to a term of imprisonment of eight months - suspended term of 20 months imprisonment, revoked - in respect of the total term of imprisonment faced by the defendant of 28 months, non-parole period of six months fixed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10(1)(n), s 58(1), s 58(3) and s 59(3)(a); Road Traffic Act 1961 (SA) s 5, s 47(1), s 47(A) and s 47B, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; Police v Cadd (1997) 69 SASR 150; Coombe v Douris (1987) 47 SASR 324; Eldridge v Bates (1989) 51 SASR 532; Bates v Police (1997) 70 SASR 66; Green v Police [2005] SASC 454; R v Buckman (1988) 47 SASR 303; Police v B, WR (2005) 91 SASR 451; R v Ossitt [2011] SASCFC 23; R v Carpentieri (2001) 81 SASR 164, considered.

POLICE v REID
[2011] SASC 210
Magistrates Appeal
GRAY J.

This is a Crown appeal against sentence.
This appeal raises the question of the correct approach to be taken to sentencing a repeat offender for driving whilst disqualified and driving with the prescribed concentration of alcohol in his blood, particularly in the circumstance where the offending breached a suspended sentence bond imposed for similar offending. It was said that the Magistrate’s approach in failing to impose a sentence of imprisonment and in failing to revoke the suspended sentence, represented a manifest inadequacy in sentence. The defendant conceded that the appeal should be allowed, but contended that the matter should be remitted for resentencing. It was also conceded that the Magistrate imposed a licence disqualification less than the mandatory minimum for one of the offences of driving with the prescribed concentration of alcohol.
Following pleas of guilty the defendant and respondent, Anthony Douglas Reid, was sentenced in the Port Lincoln Magistrates Court in respect of five offences committed on three separate occasions. On 20 November 2010 he committed the offences of driving whilst disqualified and driving with the prescribed concentration of alcohol in his blood – 0.093. On 12 February 2011, the defendant committed the offences of driving whilst disqualified and driving with the prescribed concentration of alcohol in his blood – 0.108. On 15 June 2011, the defendant committed the offence of driving whilst disqualified.
The defendant’s conduct on each occasion was a breach of a suspended sentence good behaviour bond. That bond had been imposed on 17 March 2010 in relation to convictions for offending between 6 July and 1 September 2009. That offending included two counts of driving whilst disqualified, driving under the influence and aggravated driving dangerously to escape police. On that occasion the Magistrate sentenced the defendant to a 20 month term of imprisonment, suspended on his entry into the good behaviour bond.
The Magistrate in regard to the present offending exercised his powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and discharged the defendant on a supervised bond to be of good behaviour for a period of 18 months. In the event of breach, the defendant was required to attend court to be resentenced for his offending. The Magistrate took into account 42 days that the defendant had spent in custody pending sentence. The Magistrate declined to take any action in relation to the application to revoke the suspended sentence.
In relation to the prescribed concentration of alcohol offence committed on 20 November 2010, the Magistrate imposed a driver’s licence disqualification of 12 months. That disqualification commenced on 18 March 2013 consecutive upon other previously imposed licence disqualifications. In relation to the prescribed concentration of alcohol offence committed on 12 February 2011, the Magistrate imposed a driver’s licence disqualification of two years consecutive upon the disqualification imposed for the November 2010 offending.
On appeal the police submitted that the imposition of a good behaviour bond for the principal offences was manifestly inadequate having regard to the circumstances and the objective seriousness of the offending and the absence of any personal circumstances that militated towards any further extension of leniency.
It was further submitted that the licence disqualification in relation to the prescribed concentration of alcohol offence committed on 20 November 2010 was below the statutory minimum required by section 47B(3)(a)(iii)(B) of the Road Traffic Act 1961 (SA).
Finally it was submitted that the Magistrate was wrong to take no action in regard to the breaches of the suspended sentence bond. The Magistrate made no finding that there were proper grounds to refrain from revoking suspension or that there were proper grounds to reduce the terms of the suspended sentence.
The appeal by the police is an appeal as a right pursuant to section 42 Magistrates Court Act 1991 (SA). However, as the police were seeking an order for imprisonment, it was accepted that the appeal could only be justified in rare and exceptional circumstances.[1] It was submitted that while Crown appeals “should not be allowed to circumscribe unduly the sentencing discretion of judges”,[2] a Crown appeal against sentence is an appropriate vehicle to:[3]
…[e]nable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
It is important to recognise that consistency in sentencing is a primary consideration on a Crown appeal. The absence of consistency in the sentencing process has a tendency to undermine public confidence in both the administration of justice and in the ability of the courts to deter crime. Inconsistency may also give rise to a sense of injustice in the general public.[4]
[1]    Everett v The Queen (1994) 181 CLR 295, where it was held that Crown appeals against sentence should only be allowed in order to establish some matter of principle, to be understood as encompassing what is necessary to avoid manifest inadequacy of inconsistency in sentencing standards; see also, Police v Cadd (1997) 69 SASR 150.
[2]    R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ).
[3]    R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ).
[4]    Everett v The Queen (1994) 181 CLR 295, 306 (McHugh J).
The defendant did not oppose the sentences being set aside and the defendant being resentenced. It was accepted that the sentence imposed was manifestly inadequate in particular having regard the fact that the offending occurred “in light of the poor record of the defendant”. It was accepted that the Magistrate was in error in taking no action in relation of the breaches of the suspended sentence bond. Finally, it was accepted that the Magistrate had erred in law by imposing less than the statutory minimum driver’s licence disqualification with respect to the prescribed concentration of alcohol offence committed on 20 November 2010.
The defendant contended that the proceeding should be remitted to the sentencing Magistrate for the defendant to be resentenced. It was suggested that the Magistrate had in mind a particular sentencing package that would not involve the defendant serving further time in custody and that the Magistrate should have the opportunity to reconsider that sentencing package. Counsel for the police opposed this course and submitted that this Court should resentence, particularly having regard to the possibility that an immediate custodial term would be imposed.
In my view this Court should resentence the defendant. The appeal is by way of rehearing and there is nothing in the circumstances of this case giving rise to reason why this Court should not resentence the defendant.
The offence of driving whilst disqualified is a serious offence. It was submitted by the police that the effectiveness of disqualification orders was being eroded by the prevalence of the offence. It was further contended that the Court should be firm in dealing with offences involving a wilful and conscious disregard of the law. These considerations, it was argued, illustrate the need for orders of imprisonment, particularly for repeat offenders.[5]
[5] Police v Cadd (1997) 69 SASR 150, 179.
Suspension of any term of imprisonment must always be considered having regard to the statutory formulation prescribed by the Sentencing Act, namely, that “good reason” exists to suspend. However, the exercise of the discretion will be more difficult to justify for second or subsequent offences of contumacious driving whilst disqualified having regard to the seriousness of the offending and the deterrent purpose of the sentence.[6]
[6] Police v Cadd (1997) 69 SASR 150, 159-163 (Doyle CJ), 180 (Mullighan J); Coombe v Douris (1987) 47 SASR 324, 325 (King CJ).
The prescribed concentration of alcohol offences in the present proceedings are serious. The danger posed to the public by intoxicated drivers is well recognised. The penalty for a third or subsequent category 2 offence[7] is a fine of not less than $1,500.00 and not more than $2,200.00 and a mandatory driver’s licence disqualification of not less than 2 years.
[7] A category 2 offence is defined in section 47A the Road Traffic Act 1961 (SA) as follows:
category 2 offence means an offence against section 47B(1) involving a concentration of alcohol of less than .15 grams, but not less than .08 grams, in 100 millilitres of blood;
The offending the subject of the present proceedings, as noted above, occurred in November 2010 and February and June 2011. This repeat offending commenced within a matter of months of the defendant’s entry into a suspended sentence bond and continued thereafter with little interruption. Plainly the defendant was aware that he was continuing to offend in disregard of the orders of the Court and of the terms of his bond.
The defendant has an extensive criminal history of driving and alcohol related offences. Prior to the present offending, the defendant had been convicted on five occasions for driving whilst disqualified, and several occasions for driving under the influence or with the prescribed concentration of alcohol present in his blood. In Green, Perry J relevantly observed:[8]
…[i]n the case of traffic offences, the offender’s record is highly relevant. An offender who has demonstrated a persistent disregard of the rules of the road, may forfeit any claim to leniency if caught driving whilst disqualified.
[8] Green v Police [2005] SASC 454, [39].
Over the years the Court has dealt with the defendant with increasingly severe penalties. Those penalties have not deterred the defendant from further offending. They do not appear to have assisted his rehabilitation. The community has not been protected by the steps that have been taken in the past. The defendant has continued to drive whilst disqualified and on occasions to do so while under the influence of alcohol.
General and personal deterrence ought to have been of central importance in sentencing such a prevalent repeat offender. It would appear that the Magistrate has failed to give adequate weight to these considerations. Personal deterrence in particular should have been a significant factor in any sentence imposed by the Magistrate.
Section 10(1)(n) of the Sentencing Act provides:
(1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(n) the probable effect any sentence under consideration would have on dependants of the defendant;
The defendant has a dependent child, a two year old daughter. The defendant is estranged from the child’s mother. However, the child’s maternal grandparents provide considerable care for the child. For example, the grandparents cared for the child while the defendant was in custody for 42 days on remand. It appears that they care for the child while the defendant has been at work. Although the matter is not entirely clear, it appears that they care for the child on a full time basis for several days a week.
It is to be accepted that there will be some adverse impact on the defendant’s daughter if he is to be imprisoned. However, there is no evidence of any particular detriment or any suggestion that the child will not be appropriately cared for by her grandparents.
Doyle CJ in Carpentieri reviewed relevant authorities on the scope and operation of section 10(1)(n) and observed:[9]
Section 10(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) directs that a sentencing court should have regard to a number of matters including the probable effect of any sentence on dependants of an offender. That section has been interpreted as not altering the common law principles: R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60 at 70. The same view has been taken of a similar provision in the Crimes Act 1914 (Cth): R v Sinclair (1990) 108 FLR 370 at 376-383.
The common law principle was stated by Wells J in R v Wirth (1976) 14 SASR 291 at 295-296:
"The argument thus presented to us raises the following question: When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the court in mitigation of that sentence? ...
Hardship to spouse, family and friends is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court ... It seems to me that courts would often do less than their clear duty — especially where the element of retribution, deterrence, or protection of society is the predominant consideration — if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so ... For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go."
The judgment in Wirth has frequently been cited by appeal courts with approval. In R v Edwards (1996) 90 A Crim R 510 Gleeson CJ, with whom James and Ireland JJ agreed, cited the above passage from Wirth and pointed out that the real difficulty in many cases is to identify a ground upon which the hardship to a third party "can properly and relevantly be regarded as exceptional". His Honour observed that causing hardship to third parties by the imprisonment of an offender is very common and emphasised the importance of examining the nature and extent of the hardship that would follow the imposition of a sentence of imprisonment.
[9] R v Carpentieri (2001) 81 SASR 164, [16]-[18].
The remainder of the defendant’s personal circumstances are unremarkable. At 25 years of age he is not so young as to warrant particular sympathy. He is currently employed and has the support of his employer. Such are, however, the circumstances of many of the offenders who commit these types of offences.[10]
[10] See for example the comments of King CJ in Eldridge v Bates (1989) 51 SASR 532, 533-534.
The defendant’s criminal antecedents are not insignificant. Earlier in these reasons, I have referred to the offending that gave rise to the suspended sentence of imprisonment.The defendant has other convictions including two prior convictions for driving with an excess concentration of alcohol in his blood, committed on 10 February 2007 and 6 July 2009.
The Magistrate imposed a driver’s licence disqualification of 12 months in relation to the 20 November 2010 prescribed concentration of alcohol offence. This involved an error of law. Given the defendant was convicted and sentenced in relation to both prescribed concentration of alcohol offences on the same day, the offending on both 20 November 2010 and 12 February 2011 were “third offences” and were “category 2 offences” for the purposes of sentencing and each ought to have attracted a minimum two year licence disqualification.

The orders that a court may make on breach of a suspended sentence bond are set out in section 58(1) of the Sentencing Act. They include relevantly the mandatory revocation of a suspended sentence of imprisonment where the probationer has been sentenced to imprisonment for the original offence. However, that power is subject to exceptions set out in section 58(3) of the Sentencing Act, which provides that, if satisfied that the failure to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court may either refrain from revoking the suspension, or make other orders in relation to the term or conditions of the bond, or require the probationer to enter into a further bond, as set out in section 58(3)(b). Such a finding must be based upon either the nature of the breach or the circumstances in which the breach was committed.[11]
[11] R v Buckman (1988) 47 SASR 303; Police v B, WR (2005) 91 SASR 451, [38]-[42] (Doyle CJ); R v Ossitt [2011] SASCFC 23, [30] (White J).
Section 58(4) of the Sentencing Act also provides for other ameliorative orders to be made where a suspended sentence of imprisonment is revoked, and confers a power to reduce the term of the suspended sentence in “special circumstances”.
The ordinary consequence of a breach of a suspended sentence bond is, as set out in section 58(1)(d) of the Sentencing Act, revocation of the suspension and an order that the sentence be carried into effect. In Buckman, King CJ addressed what he described as the clear legislative policy and observed:[12]
There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.
…
… there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. It is not irrelevant, moreover, that the offence constituting the breach is of quite different character from that for which the sentence was imposed.
[12] R v Buckman (1988) 47 SASR 303, 304 (King CJ).
In the present proceeding, the breaching offences are of the same character and seriousness as that for which the sentence was imposed. Moreover, the breaching offences included the circumstances where the defendant was driving with more than the prescribed concentration of alcohol and as part of a series of similar offending over an approximate seven month period.
The facts underlying the offending combined with the defendant’s personal circumstances do not readily permit the conclusion that proper grounds to excuse the breach can be identified. The pre-sentence report of 21 July 2011 provides information in relation to the defendant’s personal circumstances. They are unremarkable, save for the defendant’s role as carer of a young child.
For these reasons, a simple bond imposed for three counts of driving whilst disqualified and two counts of driving with the prescribed concentration of alcohol was so disproportionate to the gravity of the offending that this Court ought to interfere with the exercise of the Magistrate’s discretion and resentence the defendant. In my opinion the Magistrate was also in error in exercising the power in section 58(3) of the Sentencing Act to refrain from revoking the suspended sentence of imprisonment. There is no evidence of special circumstances justifying a reduction in the sentence of imprisonment. Finally, the Magistrate’s imposition of a 12 month disqualification of driver’s licence for the November 2010 offending must be set aside as being below the statutory minimum period of disqualification.
Resentencing
I consider it appropriate to set aside the sentence imposed by the Magistrate and for this Court to resentence the defendant. I have regard to the matters earlier referred to concerning the circumstances of the offending, his contumacious and defiant behaviour and his antecedents.
The defendant is aged 25 years and is a resident of Port Lincoln. He was a rebellious child and notwithstanding a good upbringing left home when aged 14 years. He engaged in destructive behaviour at school and experienced difficulty with issues of authority. Notwithstanding these matters he completed year 11 with reasonable numeracy and literacy skills. On leaving school he travelled throughout Australia with his older brother and when aged 18 years he settled in Port Lincoln. He has maintained over the years a variety of employment positions including in the retail sector and in the fishing industry. More recently he has worked as a furniture removalist and as a casual labourer. He has prospect of an apprenticeship in the building industry.
The defendant has been in two significant relationships. He has a daughter aged seven years from his first relationship and his former partner has custody of the child. He entered into his second relationship in his early twenties and has a young daughter from that relationship. That relationship has now ended. His former partner suffers from a serious drug addiction and he appears to share custody of his child. The parents of his former partner care for the child several days a week and on a full-time basis when he has been custody. Apparently the defendant takes great pride in his achievement in raising his young daughter on his own while working to support them both.
The defendant has acknowledged a long history of alcohol and other drug abuse. Apparently he is now free of drug addiction apart from his addiction to alcohol. He claims to have made attempts to change his lifestyle because of his responsibilities to his young daughter. In this respect he has ceased contact with negative peer groups who have in the past significantly impacted upon his behaviour.
A presentence report placed before the Court recorded that the defendant expressed remorse and regret for his offending and acknowledged that his actions were irresponsible and stupid. He was concerned about the welfare of his daughter if he were to be imprisoned. The Community Corrections officer preparing the report, however, considered that his regret and remorse was primarily focussed on his own personal circumstance rather than the potential impact of his behaviour on others. The officer had previously supervised the defendant in the past and on those occasions had noted similar statements of regret and remorse. The officer commented in his report that his previous regret and remorse had not impacted on his continuing criminal behaviour.
The Correctional Services officer commented that the defendant had successfully completed six months of intensive bail supervision in 2009. However, when subjected to a 12-month supervised good behaviour bond between 2009 and 2010 he failed to attend intervention programs as directed.
I have reached the conclusion that the defendant should be sentenced to an immediate term of imprisonment with respect to the offences of driving whilst disqualified. I am also of the opinion that the suspension of the term of imprisonment imposed on 17 March 2010 should be revoked.
In imposing terms of imprisonment I make a reduction of 25 per cent on account of the pleas of guilty. I have had regard to the 42 days spent in custody. I have had regard to the impact of the defendant being in custody on his young daughter.
In respect of the offences of driving whilst disqualified on 20 November 2010, 12 February 2011 and 15 June 2011, I fix the one term of imprisonment of eight months.
I revoke the suspended term of imprisonment of 20 months imposed on 17 March 2010. As a consequence, the defendant faces a total term of imprisonment of 28 months.
I consider there is good reason to fix an unusually short non-parole period. In doing so I have had regard to the responsibility that the defendant is reported as having shown toward his young daughter. I also have had particular regard to the report of the Correctional Services officer that the defendant has responded well to close supervision in the past. No doubt the Parole Board will have regard to the need for close supervision in the future. In all the circumstances, I fix a non-parole period of six months.
The sentence is to commence when the defendant is taken into custody. I fix the time for the defendant to surrender to the Port Lincoln police as being 10.00 am on Monday, 5 December 2011.
The licence disqualifications imposed with respect to the prescribed concentration of alcohol offences should reflect the statutory minimum of two years. Accordingly, I impose the mandatory statutory minimum driver’s licence disqualification of two years in respect of each of the prescribed concentration of alcohol offences of 20 November 2010 and 12 February 2011. The first period is ordered to commence on 18 March 2013 at the expiration of previous disqualifications, and the second is to commence on 19 March 2015, ending on 19 March 2017.
Conclusion
Appeal allowed. Sentence imposed by the Magistrate set aside. Defendant resentenced to an immediate term of imprisonment of eight months with respect to the offences of driving whilst disqualified. The suspension of the term of imprisonment of 20 months imposed on 17 March 2010 is revoked. The total period of imprisonment faced by the defendant is 28 months. A non-parole period of six months is fixed. The sentence is to commence when the defendant is taken into custody. The defendant is to surrender to the Port Lincoln police at 10:00am on Monday 5 December 2011. The defendant is disqualified from holding or obtaining a driver’s licence for a period of two years in respect of each of the prescribed concentration of alcohol offences of 20 November 2010 and 12 February 2011. The first period is to commence on 18 March 2012 and the second to commence on 19 March 2015, ending on 19 March 2017.