Police v Schutt
[2018] SASC 75
•1 June 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
POLICE v SCHUTT
[2018] SASC 75
Judgment of The Honourable Justice Hinton
1 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Appeal against sentence.
The appellant pleaded guilty to 14 offences including driving a motor vehicle while disqualified, breach bail, damaging property, driving with the intention to cause a police officer to engage in pursuit, illegal interference, possess an implement for consumption of a controlled substance and theft. The offences were committed between 19 March 2017 and 22 December 2017 after a downward spiral in the appellant’s life following the breakdown of two significant relationships, one of which was characterised by drug use. The appellant had never before been sentenced to a term of imprisonment.
In respect of nine of the 14 offences, the Magistrate sentenced the appellant to imprisonment for 14 months with a non-parole period of six months. The appellant was disqualified from obtaining a licence for a total period of nine years in respect of 11 of the 14 offences, that disqualification to commence on the date of his release from custody.
On appeal the appellant advanced a number of grounds including that the sentence of imprisonment imposed by the Magistrate and the period of licence disqualification were manifestly excessive.
Held, allowing the appeal:
1. The incorporation within the total period of imprisonment imposed of a period of imprisonment for offences which in all the circumstances could not reasonably be said to warrant such penalty was plainly wrong. Accordingly the sentence of imprisonment was manifestly excessive and the sentencing discretion miscarried.
2. The total period of licence disqualification was manifestly excessive.
Bail Act 1985 (SA) s 17; Controlled Substances Act 1984 (SA), s 33L(1)(c); Criminal Law Consolidation Act 1935 (SA), ss 19AC, 86A, 134; Criminal Law (Sentencing) Act 1988 (SA); Criminal Law Sentencing Act 2017 (SA); Motor Vehicles Act 1959 (SA), s 74(1); Road Traffic Act 1961 (SA) s 47BA, referred to.
Gannon v Harper SASC (Unreported, 20 July 1989: Judgment No 1627); Meeuwsen v Police [2003] SASC 306, discussed.
POLICE v SCHUTT
[2018] SASC 75Magistrates Appeals
HINTON J:
This is an appeal against sentence. The appellant, Ronald Schutt, pleaded guilty to the 14 offences set out in the table below. Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the 1988 Sentencing Act), a Magistrate sentenced the appellant to one penalty for nine of the 14 offences committed between 19 March 2017 and 22 December 2017. That penalty was imprisonment for 14 months with a non-parole period of six months. Further, the appellant was disqualified from obtaining a driver’s licence for a total period of nine years in respect of 11 of the 14 offences, that disqualification to commence on the date of his release from custody.
The appellant contends that the sentence of imprisonment was manifestly excessive. In doing so, he argues that the Magistrate erred in sentencing him to imprisonment for offences that did not warrant a term of imprisonment. In addition, he contends that the Magistrate erred in:
1.failing to apply the totality principle;
2.imposing cumulative sentences;
3.failing to suspend the sentence; and
4.failing to suspend the sentence and order that it be served on home detention.
He also complains that the total period of licence disqualification imposed was manifestly excessive and the product of the Magistrate wrongly accumulating individual periods of disqualification.
The offences to which the applicant pleaded guilty
The offences to which the appellant pleaded guilty and the maximum penalty applicable to each were as follows.
Offence date Offence Section Maximum Penalty 19.03.2017
MCPAR-17-7147Driving a motor vehicle with a prescribed drug in oral fluid Road Traffic Act 1961 s 47BA(1)(a) For a first offence: $1,300
For a second offence: $1,600
For a third offence: $2,20019.03.2017
MCPAR-17-7147Driving a motor vehicle while disqualified as a consequence of drink driving Motor Vehicles Act 1959 s 74(2a) $5 000 or 1 year imprisonment 3.09.2017
MCPAR-17-11676Damaging a building, without lawful excuse and intending to damage property Criminal Law Consolidation Act 1935 s 85(2) For a first offence:
2 years imprisonment
For a subsequent offence:
imprisonment for not less than 3 months and not more than 4 years3.09.2017
MCPAR-17-11676Interfering with a motor vehicle without the consent of the owner Criminal Law (Consolidation) Act 1935 s 86A(1) For a first offence:
2 years imprisonment
For a subsequent offence:
4 years imprisonment18.09.2017
MCPAR-17-11273Driving with the intention to cause a police officer to engage in a pursuit Criminal Law (Consolidation) Act 1935 s 19AC(1) For a basic offence:
3 years imprisonment
For an aggravated offence:
5 years imprisonment22.09.2017
MCPAR-17-14360Driving a motor vehicle with a prescribed drug in oral fluid Road Traffic Act 1961 s 47BA(1)(a) For a first offence: Not less than $900 and not more than $1,300
For a second offence: Not less than $1,100 and not more than $1,600
For a third or subsequent offence: not less than $1,500 and not more than $2,20022.09.2017
MCPAR-17-14360Driving a motor vehicle while disqualified as a consequence of drink driving Motor Vehicles Act 1959 s 74(2a) $5,000 or 1 year imprisonment 26.09.2017
MCPAR-17-13361Failing to comply with a term or condition of a bail agreement Bail Act 1985 s 17(1) $10,000 or 2 years imprisonment 10.11.2017
MCPAR-17-13361Driving a motor vehicle when not authorised to drive a motor vehicle Motor Vehicles Act 1959 s 74(1) $1,250 10.11.2017
MCPAR-18-475Having in possession equipment for use in the connection of smoking a controlled drug other than cannabis Controlled Substances Act 1984 s 33L(1)(c) $2,000 or 2 years imprisonment, or both
4.12.2017
MCPAR-18-474Failing to comply with a term or condition of a bail agreement Bail Act 1985 s 17(1) $10,000 or 2 years imprisonment 11.12.2017
MCPAR-18-474Failing to comply with a term or condition of a bail agreement Bail Act 1985 s 17(1) $10,000 or 2 years imprisonment 16.12.2017
MCPAR-18-474Failing to comply with a term or condition of a bail agreement Bail Act 1985 s 17(1) $10,000 or 2 years imprisonment 22.12.2017
MCPAR-18-1544Theft Criminal Law (Consolidation) Act 1935 s 134 For a basic offence:
10 years imprisonment
For an aggravated offence:
15 years imprisonment
Three of the above offences were not punishable by imprisonment (MCPAR-17-7147 – count 1; MCPAR-17-14360 – count 1; MCPAR-17-13361 – count 2). They were excluded by the Magistrate from the sentence of imprisonment he imposed. In addition the Magistrate excluded MCPAR-17-7147 – count 2 and MCPAR-17-14360 – count 2; the two offences committed contrary to s 74(2a) of the Motor Vehicles Act 1959 (SA). On MCPAR-17-7147 count 1 the Magistrate imposed a fine of $1500. In relation to count 1 on MCPAR-17-14360 a fine of $1100 was imposed. On MCPAR-17-13361 count 2, MCPAR-17-7147 count 2 and MCPAR-17-14360 count 2 the appellant was discharged without penalty. The total period of licence disqualification also accounted for disqualification in relation to MCPAR-17-7147 (both counts) and MCPAR-17-14360 (count 1).
I turn to the factual circumstances of the above offending.
MCPAR-17-7147; On 19 March 2017 at about 5.55 pm the appellant was stopped by police as he was driving along Woodford Road, Elizabeth North. The appellant’s licence had been cancelled since 20 August 2013 when he was convicted of driving whilst there was present in his blood the prescribed concentration of alcohol. The police subjected the appellant to tests for the presence of alcohol and illicit drugs in his blood. The former returned a negative result, the latter a positive result. The appellant was charged with driving whilst there was present in his oral fluid a prescribed drug and driving without authorisation.
MCPAR-17-11676; On 3 September 2017 the appellant was at his ex-partner’s home address in Elizabeth Downs. They argued. He attempted to take her vehicle without her permission. She sat in it to prevent him doing so. The appellant then approached the front door of his ex-partner’s home and kicked the door with sufficient force to open it, causing approximately $100 damage to the interior frame. The appellant then left only to return a short time later. He opened the bonnet to his ex-partner’s vehicle and removed fuses from the engine compartment. He then left. A short time later the police arrested the appellant and charged him with the offences of property damage and illegal interference. When interviewed the appellant admitted committing the offences.
MCPAR-17-11273; On 18 September 2017 at about 3.30 am police attention was drawn to a vehicle that had sustained external damage and had a cabin that appeared full of items. The police activated their lights signalling to the vehicle to stop. It did not do so. Instead the vehicle accelerated away from police. The police activated the police vehicle’s emergency lights and sirens and gave pursuit maintaining a distance of about 50 metres. Eventually the vehicle turned onto Bolivar Road, Paralowie. When the police turned onto that road they saw that the vehicle had stopped to allow a male to exit from the left front passenger seat. The vehicle then accelerated away once again. The police terminated the pursuit and arrested the man who had exited the vehicle. That man informed police of the identity of the driver. It was the appellant.
The police arrested the appellant the following day when he was taken into custody on other matters. When interviewed he denied that he was driving the vehicle that the police had chased the previous evening. He was charged with the offence of engaging police in a pursuit.
MCPAR-17-14360; On 22 September 2017 at about 8.10 pm the appellant was seen to pull the vehicle he was driving over to the side of the road some distance before a static police testing station. A police vehicle intercepted the appellant. The appellant submitted to an oral fluid screening test that returned a positive result for methylamphetamine. When questioned as to the reason he was driving with a prescribed drug present in his system, the appellant stated that he was taking his passenger to hospital and that he should not have done it. He stated that he had consumed methylamphetamine at lunch time that day. The appellant did not hold a current driver’s licence it having been cancelled in 2013.
MCPAR-17-13361; On 10 November 2017 at about 1.50 am the appellant was stopped by police as he was driving in Elizabeth Vale. Checks conducted roadside indicated that a warrant had been issued for the arrest of the appellant for breaching bail. The breaches occurred on 26 September 2017 and 4 October 2017 when the appellant failed to report to the community corrections officer responsible for his supervision under a bail agreement he had entered at the Elizabeth Magistrates Court. When interviewed the appellant stated that he had lost all his paperwork. He believed everything would be sorted out when next he attended court. He admitted driving knowing that he did not have a licence.
MCPAR-18-474; The appellant committed further breaches of his bail agreement on 4 December, 11 December and 18 December 2017, by failing to report to Elizabeth Police Station between the prescribed hours of 9 am and 9 pm each Monday, without reasonable excuse. The appellant was obliged to report to the Elizabeth Police Station under the bail agreement that he entered into on 16 November 2017 when bailed for the offence of engaging police in a pursuit. He admitted knowing he was required to report and could not give a valid reason for failing to do so.
MCPAR-18-475; On 10 November 2017 police stopped a vehicle being driven on Stokes Court, Elizabeth Vale. A search of the vehicle located a glass pipe in the passenger foot well. The appellant was the driver. He admitted the pipe was his. He said that he had last used it about a month beforehand to smoke methylamphetamine. He was charged with having in his possession equipment for use in connection with consumption of a controlled drug other than cannabis. Subsequently the appellant was issued with a drug diversion notice. He failed to attend the drug diversion meeting.
MCPAR-18-1544; On Friday 22 December 2017 the appellant stole items amounting to $25.50 in value from the Coles supermarket at the Parabanks Shopping Centre. The appellant was observed placing multiple items into a shopping bag. He proceeded through the self-serve checkout, paying for some items but not others. A security officer stopped the appellant as he left the supermarket. He had stolen a pack of toothbrushes, three blocks of chocolate and some glue to the total value of $25.50. In interview he admitted taking the items. He said he knew it was an offence to do so and apologised. The items were all recovered and capable of being sold.
Personal circumstances
The appellant is 34 years old. He is the second eldest of five children. He was born and raised in South Australia. His parents separated when he was 13. He attended Para Hills West High School leaving after completing year 10. He soon found employment and largely remained in employment until about three years ago. He worked in the construction industry as a concreter and a fabricator and welder, and in more recent times he has worked installing verandahs.
When about 23 the appellant commenced a relationship with Amanda that produced a son, Josh. Josh is now 10 years old. The family lived together with the appellant supporting his partner and son. The relationship lasted about eight years coming to an end in 2015. As a result the appellant moved out of the family home. He became depressed and was unable to cope with the breakdown of his relationship. He lost his employment and became homeless. He was subsequently denied contact with his son, aggravating his depression. He has remained unemployed ever since.
In late 2015 the appellant commenced a new relationship with Dianne. It was during this relationship that he was introduced to methylamphetamine. The relationship was described by his counsel as toxic and dysfunctional. Drug use became a daily occurrence. The relationship ended in September 2017 but not before allegations of domestic violence were made and charges laid. The 26 September 2017 breach of bail relates to those charges. This Court was informed that the appellant intended to defend the charges.
After his relationship with Dianne came to an end the appellant moved in with his mother. He commenced attending drug counselling once a week at Uniting Communities and has been prescribed anti-depressant medication.
The appellant was taken into custody on 1 March 2018 on a warrant for failing to attend court. He has remained in custody ever since. He is entitled to a discount of up to 30% for his pleas on all counts.
The appellant’s antecedents
On 29 July 2002 the appellant was convicted of driving an unregistered vehicle, driving without insurance, failing to stop and give particulars to a person at a crash scene, failing to give particulars about a crash to a police officer, and driving without a licence. The offences all occurred on 27 December 2000. The appellant was fined $50 for the offence of driving unregistered with the balance of the offences being dismissed without penalty save that his licence was disqualified for seven days.
On 3 September 2002 the appellant was convicted of failing to stop and give particulars to persons at a crash scene, being the qualified driver with a learner driver and having the prescribed concentration of alcohol in his blood, and driving under the influence of alcohol. These offences all took place on 1 March 2002. He was fined $900 and his licence was disqualified for sixteen months commencing 3 September 2002.
On 7 December 2004 the appellant was convicted of the offence of breaching the duty to hold a licence or learner’s permit and fined $200. That offence occurred on 2 April 2004.
On 1 March 2006 the appellant was convicted of two driving related offences including driving under the influence of alcohol. These offences occurred on 2 August 2005. He was fined $1000 and his licence was disqualified for a period of two years commencing 1 March 2006.
Lastly, on 20 August 2013 the appellant was convicted of:
1.driving with excess blood alcohol on 22 May 2013. He was fined $1,100 and his licence was disqualified for 10 months commencing on 20 August 2013.
2.driving with cannabis in oral fluid and contravening a condition of a provisional licence. These offences occurred on 16 April 2012. For both he was fined $900. Further, on the first charge his licence was disqualified commencing 21 June 2014 (i.e. at the conclusion of the period of disqualification imposed for the 22 May 2013 offence) for a period of two months, and on the second charge his licence was disqualified commencing 22 August 2014 (i.e. at the conclusion of the period of disqualification imposed for the driving with cannabis in oral fluid offence) for a period of two weeks.
The Magistrate’s reasons
The Magistrate commenced his remarks by acknowledging that the appellant had been in custody since 1 March 2017 and that it was the first time he had been in custody. He referred to the appellant’s antecedents and considered that they “showed a disrespect for the road rules, together with problems with alcohol and cannabis use”. The Magistrate then had regard to the appellant’s personal circumstances noting that his life had been in a downwards spiral since the break-up of his long-term relationship with Amanda. He then turned to the gravity of the offending stating:
You committed a number of offences, the worst of which was the driving dangerously to escape police pursuit. Those situations cause shivers to members of the public because, as the public knows, people innocently using roads legally can be killed. Police are also put at risk as well as yourself. Yours was a fairly long pursuit from Burton to Paralowie. I find it the most serious of all crimes.
Your other crimes are consistent with drug use and unfortunately, one of them on 3 September, the damage property and the interference of the motor vehicle is consistent with drug use and domestic violence.
The Magistrate resolved to impose one penalty but excluded from that penalty the offences identified in paragraph [5] above as excluded. He then sentenced the appellant:
You are entitled to a 30% discount. They are all separate crimes, in my view, each sentence for a crime should be cumulative upon the others. I will impose one penalty under s 18A of the Sentencing Act. I impose a penalty of 20 months. I reduce that by 30% to 14 months.
The Magistrate turned to the question of the appropriate non-parole period. He said:
Except for your driving record, you have basically had a pretty good life until recent times. I am cautiously optimistic that you can resume that life, although I don’t know how badly the drugs have gripped you. I hope the grip is less in the month you have been in custody.
I will impose a lower than usual non-parole period to reflect your prospects of rehabilitation. I impose a non-parole period of six months.
The remaining question for the Magistrate was whether the sentence should be suspended or suspended and ordered to be served on home detention. He said:
… I find neither of the first two options [suspension and suspension on home detention] appropriate, weighing the proper test of whether good reason exists to suspend, or in the alternative, the safety of the community as a predominant factor for home detention. Therefore the sentence will be actual time in custody. I back-date the sentence to 1 March 2018.
I have already set out the sentences imposed for the offences subject of MCPAR-17-7147, MCPAR-17-14360 and MCPAR-17-13361.
The licence disqualification
The Magistrate said:
I now deal with the disqualifications. Your driving record is horrendous. Personal and general deterrence are important in setting the appropriate period. I impose a disqualification of nine years to reflect these factors. The disqualification is to commence upon your release from custody. This is a total disqualification on all the relevant charges. This is a result of applying the minimum period of disqualification for each offence in a wholly cumulative way. The exception is the offending on one occasion where you were driving and using a vehicle without consent. It is also subject to the orders on matters that are not part of the sentence I just imposed, namely the traffic matters.
The breakdown of the disqualifications imposed is as follows:
MCPAR-17-7147
Drive a vehicle with a prescribed drug in oral fluid: 12 months
Drive a vehicle when not authorised: 3 years
MCPAR-17-11676
Illegal interference with a motor vehicle: 12 months
MCPAR-17-11273
Drive dangerously to escape police pursuit: 2 years
MCPAR-17-14360
Drive a vehicle with a prescribed drug in oral fluid: 6 months
Drive a vehicle when not authorised: 3 years
The disqualification imposed for the two offences of driving a motor vehicle whilst there was present in his oral fluid a prescribed drug (offences committed 19 March 2017 and 22 September 2017) were ordered to run concurrently. All other periods of disqualification were ordered to run cumulatively resulting in a total period of disqualification of nine years commencing upon the appellant’s release from custody.
Manifestly excessive
Under the rubric of manifest excess the appellant argued that of the nine offences for which the overall penalty of 14 months imprisonment with a non-parole period of six months was imposed, some did not merit a sentence of imprisonment. In developing this argument counsel referred to the established jurisprudence in this Court regarding the use to be made of s 18A of the 1988 Sentencing Act.[1] In particular, counsel referred the Court to R v Major[2] and R v Copeland (No 2).[3] In R v Major Doyle CJ referred to the desirability of a sentencing court utilising s 18A to nonetheless consider the sentences that would be imposed for each offence if the court proceeded to impose separate sentences in order to avoid the risk that a sentence will not have a “proper basis, and will not appropriately reflect the overall criminality involved.”[4] The former Chief Justice added that the “process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.” [5] The converse is equally true. In R v Major Doyle CJ and Olsson J also made plain that s 18A did not replace the existing law relating to the structure of cumulative and concurrent sentences.[6] In R v Copeland (No 2) Kourakis J, as he then was, explained:[7]
The power conferred by s 18A CLSA provides a procedural faculty which is calculated to avoid inadvertent error in the announcing and recording of multiple sentences and the calculation of release dates for those sentences by the correctional authorities.Section 18A of the CLSA does not abrogate sentencing principles governing the accumulation of sentencesnor was it intended to render the sentencing process inscrutable. There is obvious utility in explaining how a single sentence imposed pursuant to s 18A of the CLSA is arrived at by reference to the individual sentences which would otherwise have been imposed for a series of offences. The offender, and the community on whose behalf the prosecution is brought, have a real interest in knowing how the criminality, of each of the individual offences, was evaluated and the relative contribution each made to the ultimate sentence.That interest is not as acute, and the practicality of differentiating between offences is more difficult, in the case of multiple charges arising out of a single criminal episode.
[footnotes omitted]
[1] The applicable principles are conveniently distilled by Lovell J in R v Donald (2016) 126 SASR 276 at [31].
[2] (1998) 70 SASR 488.
[3] (2010) 108 SASR 398.
[4] R v Major (1998) 70 SASR 488 at 490.
[5] R v Major (1998) 70 SASR 488 at 490.
[6] R v Major (1998) 70 SASR 488 at 490 (Doyle CJ), 497 (Olsson J).
[7] R v Copeland (No 2) (2010) 108 SASR 398 at [93].
The appellant’s argument is that if the gravity of each of the offences he committed is considered separately, some of the offences did not merit imprisonment with the consequence that the overall sentence imposed must be infected by error and, in any event, is manifestly excessive. That is to say, had the Magistrate identified notional sentences for each offence subject of the overall sentence of imprisonment he could not have arrived at a conclusion that the appropriate penalty was 20 months imprisonment. In particular, the appellant contends that the offences of damage property and illegal interference (MCPAR-17-11676), breach bail (MCPAR-17-13361 and MCPAR-18-474), possess equipment for use in connection with the smoking of a controlled drug other than cannabis (MCPAR-18-475), and theft (MCPAR-18-1544) did not merit a sentence of imprisonment.
The respondent commenced by drawing the Court’s attention to s 11(1) of the 1988 Sentencing Act. That section provides:
11—Imprisonment not to be imposed except in certain circumstances
(1)A sentence of imprisonment may only be imposed—
(a) if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b) if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
In Gannon v Harper Bollen J referred to the spirit of s 11 as saying “nothing different to that which the courts have always thought, that is, that imprisonment should be a last resort.”[8] To similar effect in Meeuwsen v Police Mullighan J considered that the “correct approach in arriving at a just sentence is to go through the process of eliminating all other sentencing options before considering imprisonment”.[9] Both Bollen J and Mullighan J were concerned to protect the liberty of the subject which the community prizes and the law has always jealously guarded. The chapeau to s 11 is stated in imperative terms. Thereafter whether imprisonment is appropriate is discretionary. In neither respect does s 11 erode the principle articulated by Bollen J – imprisonment is a penalty of last resort. In any given case, the discretion in s 11(1)(a) or (b) being satisfied, whether imprisonment is the appropriate penalty to be imposed will be determined having regard to the purposes of punishment in all the circumstances of the case. If those purposes can be satisfied without imprisonment, or immediate imprisonment, then the principle that imprisonment is a penalty of last resort should be given effect.
[8] SASC (Unreported, 20 July 1989; Judgment No 1627)
[9] [2003] SASC 306 at [38] citing Wood v Samuels (1974) 8 SASR 465 and The Queen vO’Keefe (1969) 2 QB 29.
In the present case s 11(1)(a)(iii) is satisfied. The respondent submitted that a sentence of imprisonment for each of the nine offences was within the permissible range having regard to the fact that the offending was prolific and persistent and often committed whilst on bail and in breach of bail.
To test the appellant’s argument it is necessary to consider what individual penalties were appropriate for each of the nine offences contributing to the sentence of imprisonment imposed. Bearing in mind that sentencing is the quintessential discretionary exercise and that consequently there is not any one correct sentence but rather a permissible range, such test can only be a general guide. That said, if the difference is significant the only conclusion to be drawn is that the sentencing discretion has miscarried.
In the analysis that follows I bear in mind the appellant’s personal circumstances and the applicable maximum penalties as set out above. Further, I do not repeat the circumstances of the offending save as is necessary to explain my reasons.
In my view the following notional sentences would be appropriate for the nine offences subject of the overall sentence imposed by the Magistrate.
a.MCPAR-17-11676; In sentencing for the offences of property damage and the illegal interference with a motor vehicle committed on 3 September 2017 it is to be recalled that the appellant had been reported for the offences committed on 19 March 2017. He was not then on bail when he committed the offences on 3 September 2017.
Those offences obviously arose out of the dysfunctional relationship shared with Dianne. That relationship came to an end in the same month – September 2017. In mitigation it was said that the appellant interfered with Dianne’s car to prevent her driving it under the influence of drugs. That explanation was not challenged. It provides some mitigation but does not mitigate his actions in damaging property.
There are allegations of domestic violence that are challenged. They cannot be taken into account.
The cost of rectifying the damage done was estimated to be $100.
The appellant’s actions would likely have caused Dianne to be fearful. His approach to dealing with the situation that had arisen was aggressive and frightening. I accept that his own difficulties generally and with drugs provides some explanation for his behaviour, but it is no excuse.
General deterrence and specific deterrence attract significant weight in sentencing for these offences. The appellant has no history of violence or property damage. For him, this type of offending is unusual. In those circumstances the protection of the community did not require that the appellant be incarcerated. Rather compensation and a bond with supervision and a requirement that some community service be undertaken would best serve the purposes of punishment.
On the information before the Magistrate I do not think it can reasonably be said these offences warranted a sentence of imprisonment. In my view even to sentence the appellant to a period of imprisonment of a week or two would be to impose a manifestly excessive penalty.
This conclusion is sufficient to conclude overall that the sentencing discretion has miscarried. Out of an abundance of caution I continue with the analysis.
b.MCPAR-17-11273; I agree with the Magistrate that the appellant’s offending on 18 September 2017 was the most serious of all of the offending for which he was sentenced. I agree that engaging the police in a chase at speed was dangerous to other road users, to the police and to the appellant and his passenger. The possibility of a tragic outcome is very real. Clearly general deterrence attracts significant weight in sentencing for this offence. The likely penalty must cause people in similar circumstances in the future to stop and submit to the lawful direction of the police.
Counsel for the appellant candidly conceded that this offence warranted the imposition of a period of imprisonment. I agree. By the time of his committing this offence the appellant was on police bail. There is nothing that mitigates this offending. No explanation is offered and there can be no excuse. Having regard to the maximum penalty and the appellant’s personal circumstances, including his antecedents, I consider the offence of engaging police in a pursuit warranted a period of imprisonment of around 11-13 months.
c.MCPAR-17-13361; The first offence of breaching bail with which the appellant was charged was constituted by his failing on two occasions to report to his community corrections officer. The relevant bail agreement was entered into on 19 September 2017 in the Elizabeth Magistrates Court after the appellant was charged with having engaged police in a pursuit the previous evening. The appellant was first due to report to his community corrections officer on 26 September 2017, a week after his arrest, and then on 4 October 2017, a week or so later.
It appears that by this time his relationship with Dianne had broken down. I accept that his ability to function in the community was compromised. His drug use and his depression would have been contributors to this. Still he was of sufficient maturity to know that he needed to meet the obligations imposed by the Court.
To this time the appellant had no history of breaching bail. His antecedents did suggest, however, an attitude of disregard for authority.
It is trite to state that people on bail are released into the community conditionally. Whilst awaiting the resolution of the matters with which they are charged they are required to comply with all conditions imposed on their liberty to prevent them re-offending, interfering with evidence or witnesses, to ensure they attend court, and to protect the public. The grant of bail and the conditions imposed are framed in terms of an agreement, but it is not an agreement in the sense that a bargain has been struck with the bail authority. Rather, bail is an order of the court only activated if the offender agrees to comply with the conditions imposed on his liberty. When an accused breaches bail he breaks the solemn promise he makes to the court. The gravity of the breach is determined by the extent to which the agreement is broken, and any explanation for the breach. Here no doubt the Magistrate who granted bail was determined to get the appellant immediate assistance to get his life back on track, hence the inclusion of a condition that he be supervised. With the assistance of supervision it was hoped the appellant would begin to address the criminogenic factors influencing his conduct in the community. The condition breached had a preventative and rehabilitative function.
I do not consider the breaches of bail subject of MCPAR-17-13361 the most serious example of the offence. They are however the breach of a solemn promise entered with a court. Any penalty imposed must deter such breaches and promote the integrity of bail.
In all the circumstances I consider that it was open to impose a period of imprisonment for this offence. A sentence of around 4-7 days imprisonment would serve to achieve the purposes of punishment.
d.MCPAR-18-474. This offending occured after the appellant had again appeared before the Elizabeth Magistrates Court and again given his solemn promise to comply with all conditions of the bail agreement entered. The condition breached was not onerous. Reporting to a police station allows the police some comfort in knowing that the bailed offender has remained in the local community where he can be located and monitored if required. It also serves as a repeated reminder to the offender that he must not re-offend. Lastly, the contact with the police provides the community with a measure of comfort regarding the likelihood of the bailed offender re-offending.
Again I accept that the appellant’s life by this time had hit a low ebb, but I do not accept that he was not in a position to sufficiently order his affairs to report. By this time he had already been charged with the first breaches of bail which should have brought home to him the importance of his compliance.
Again general deterrence is important. However for these charges specific deterrence attracts more weight than in relation to MCPAR-17-13361 because the appellant had failed to adhere to his obligations yet again. In my view, an overall sentence for all these offences of imprisonment for 3 to 4 weeks would be appropriate.
e.MCPAR-18-475; I do not consider that it can reasonably be said that this offence warranted imprisonment. It was an offence better addressed by a sentence that allowed for supervision and intervention. There is no suggestion that the appellant was anything other than a user of drugs. He is the immediate victim of his offending. I accept that his use contributes to the promotion of the illicit drug trade and all its consequences for the community. But he is not to be punished for these things. His antecedents are of little bearing here. This offence is the product of his life having gone off track. A penalty comprised of imprisonment was not required. I do not think that the appellant’s offending in the weeks before committing this offence warrants any different response.
f.MCPAR-18-1544. The theft of the items was calculated in the sense that by paying for some the appellant hoped any prying eyes would think he was paying for all. Judging by the items stolen, it was not a case of need, but gratuitous want. Shoplifting places a significant burden on retailers, even shoplifting of relatively small and inexpensive items. The frequency with which small and inexpensive items are taken has a compounding effect. General deterrence is important here. Imprisonment as a response to the theft of a small number of inexpensive items where the offending is a “one-off” is rarely if ever appropriate. Restitution, compensation, a fine, a bond and community service are preferable responses. Often for many shoplifters the fact of the imposition of a conviction and the attendant embarrassment may be punishment enough. In the present case, this offending is out of keeping with the appellant’s criminal history. Whilst, as the Magistrate observed he has a particular attitude to the road rules and his related obligations to other road users and the police, he has never previously been convicted of stealing. Again, no doubt, this offending was symptomatic of the low his life had reached. I do not consider that it warranted the imposition of a period of imprisonment. I do not consider that the offending in the weeks preceding this offending requires any different response. I accept the offending occurred whilst the appellant was on bail which necessitated a stronger response than that which might otherwise be appropriate. But such response still did not require imprisonment.
In my view the sentencing discretion has miscarried. For three offences the appellant has received a sentence of imprisonment that was not in all the circumstances appropriate. I do not think the difference in approach explainable on the basis that reasonable minds might differ. It is likely that the Magistrate fell into error by not identifying notional sentences.
For the offences of property damage, illegal interference and possess an implement for consumption of a controlled substance other than cannabis, I consider a sentence of imprisonment in all the circumstances plainly wrong. The sentencing discretion having miscarried, no need arises to consider the balance of the grounds of appeal save for dealing with the complaint regarding the licence disqualification.
The licence disqualification
The appellant submitted that the total period of licence disqualification is manifestly excessive. Counsel went so far as to submit that it was crushing. It has the consequence of significantly impeding the appellant’s prospect of re-joining the workforce and, in particular, for a protracted period, his chances of once again working in the construction industry where the possession of a licence is a necessity.
The respondent submitted that the lengthy period of disqualification was justified in the light of the appellant’s history of committing driving offences. In this regard the respondent embraced the Magistrate’s description of that history as “horrendous”.
In Police v Nowak Doyle CJ dealt with the power to order cumulative periods of licence disqualification contained in s 169A of the Road Traffic Act 1961 (SA).[10] His Honour said:[11]
… Absent a statutory power, express or implied, to order that a period of disqualification is to commence on a future date, a court of summary jurisdiction would have no power to do so: Boehm v Milham(1979) 24 SASR 98 at 104 per King CJ. Section 169A confers the power to order that a period of disqualification is to take effect from a day subsequent to the making of the order. In Boehm v Milham that section was held to empower a court of summary jurisdiction to make disqualification periods cumulative on one another, even though its main object might have been to empower the Court to defer the commencement of a period of disqualification in the interests of an offender: King CJ (at 104).
The power to make an order that a period of disqualification is to be cumulative on another period of disqualification is to be exercised in accordance with the ordinary and well-known principles in relation to concurrency and cumulation. …
[10] (2000) 76 SASR 551.
[11] Police v Nowak (2000) 76 SASR 551 at [26]-[27].
Those “ordinary and well-known principles” are set out in Attorney-General (SA) v Tichy[12] and were more recently analysed in detail by Peek J in R v Bagnato.[13] Importantly, as Peek J observed in R v Bagnato the imposition of cumulative sentences is constrained by the totality principle.[14]
[12] (1982) 30 SASR 84 at 92-93 (Wells J).
[13] (2011) 112 SASR 39 at [68]-[81].
[14] R v Bagnato (2011) 112 SASR 39 at [82]-[84].
Applying these principles the periods of licence disqualification for the two offences subject of MCPAR-17-7147 should have been ordered to be served concurrently. The same should have been done in relation to the two offences subject of MCPAR-17-14360. The outcome may be the same as that reached by the Magistrate, but the process demonstrates an error of principle. Accordingly the sentencing discretion has miscarried.
If I am wrong in this, I consider in any event a disqualification of nine years simply too long. The disqualification of a person’s driver’s licence can have far reaching consequences. Freedom of movement around the community is compromised. The ability to transport family, to visit family members, to attend social events and gatherings, to holiday and, most importantly, to get to work or to work may all be affected and affected profoundly. Where the offender has a family the burden of him or her being disqualified from driving is borne by his or her partner and the family generally. These observations reflect the punitive and deterrent value of licence disqualification as a sentencing option. They are also the price that is to be paid to protect other road users. Care must be taken however to also cater for rehabilitation where possible and desirable. Licence disqualification can compromise an individual’s ability to participate in the community or to exploit opportunities. That is a consequence of the punitive aspect of the penalty, but it should not be assumed that an individual will be able to pick up where they left off, or recover and take full advantage of participation in the community and of opportunities offered, once a period of disqualification comes to an end. In many cases that will be so, but where disqualification extends to lengthy periods such as that imposed in the present case it may have the consequence of punishing the individual for a period well beyond the end of his or her disqualification by, in effect, locking him or her out of opportunities. Sometimes this may be unavoidable, but it should not be overlooked.
The point to be had is that licence disqualification is a very real penalty and the length of disqualification, where a discretion exists, is to be determined having regard to the purposes of punishment. Further, licence disqualification is not an incident of the imposition of sentence, but part of the sentence. Thus, when licence disqualification is coupled with another penalty, such as imprisonment, the total punitive experience must be taken into account in determining the appropriate penalty.
It is true that the appellant has a very poor driving record. With that record spanning approximately 15 years comes the obvious failure on his part to heed the many warnings he has received. In my view a lengthy period of licence disqualification was appropriate to punish, to deter and to protect. Over recent years the appellant has lost his family, his job, and his liberty. No doubt much of his dignity as well. In recent times he has made some effort to begin rebuilding. That should be encouraged. In my view licence disqualification of nine years duration is simply too long and unnecessary to achieve the purposes of punishment in this case.
Sentencing Afresh
My analysis of the offending and licence disqualification above allows me to be brief. I do not interfere with the orders convicting but discharging the appellant without further penalty save licence disqualification made in relation to MCPAR-17-13361 – count 2, MCPAR-17-7147 – count 2, and MCPAR-17-14360 - count 2. Nor do I interfere with the fines imposed on MCPAR-17-7147 – count 1 and MCPAR-17-14360 – count 1.
I impose convictions on all nine offences subject of the Magistrate’s overall penalty of imprisonment.
Under s 26 of the Sentencing Act 2017 (SA) (the 2017 Sentencing Act),[15] I sentence the appellant to one penalty for the offences subject of MCPAR-17-11273, MCPAR-17-13361 and MCPAR-18-474 being imprisonment for nine months and three weeks. I arrive at that sentence as follows:
i.for MCPAR-17-11273 the offence of engaging in a pursuit, 13 months imprisonment;
ii.for MCPAR-17-13361 – count 1, the offence of breach bail, 7 days imprisonment;
iii.for MCPAR-18-474 three counts of breach bail, three weeks imprisonment.
[15] The parties agree, having regard to the transitional provision in part 2 of Schedule 1 to the Sentencing Act 2017, that in sentencing afresh I do so under the Sentencing Act 2017.
Because each of the offences subject of MCPAR-17-11273, MCPAR-17-13361 and MCPAR-18-474 constitutes a separate incursion into criminality it is appropriate that the sentences imposed in relation to each be cumulative.
I reduce that sentence (14 months or 420 days) by 30% (4 months and 1 week rounded up from 4 months and 6 days) to 9 months and 3 weeks imprisonment on account of the appellant’s pleas of guilty.
Pursuant to s 96(4) of the 2017 Sentencing Act I direct that the appellant serve four months and three weeks of the period of imprisonment I have imposed in prison. That sentence is to be taken to have commenced on 1 March 2018 when the appellant was taken into custody. I suspend the balance of the sentence upon him entering into a bond in the sum of $500 to be of good behaviour for a period of eighteen months. The conditions of the bond will include that he abstain from illicit drugs and that he subject himself to supervision.
I am persuaded to suspend the balance of the sentence of imprisonment I impose because of the fact that the appellant has never before been in custody nor had the benefit of supervision in the community. It is also significant that he has sought medical assistance and begun a process of freeing himself from drugs. At the same time, the seriousness of the offending subject of the sentence of imprisonment, and in particular the offence of engaging police in a pursuit, warrants that a portion of the sentence be served in prison. In my view general and specific deterrence would not be best served in relation to MCPAR-17-11273, MCPAR-17-13361 and MCPAR-18-474 if the appellant did not serve a period of the sentence in prison. It is for these same reasons that I decline to suspend the sentence in its entirety or to suspend it and order that it be served on home detention.
I note the appellant is already subject to fines totalling $2,600. I think it unlikely that he will be able to pay any additional fine, bearing in mind that he must also pay the victims of crime levy. In the circumstances I impose one penalty for the offences subject of MCPAR-17-11676, MCPAR-18-475 and MCPAR-18-1544 being 75 hours of community service. Ordinarily I would order that such community service be performed within 12 months. Bearing in mind that the appellant will be in prison for approximately seven more weeks, I allow him 18 months in which to perform the 75 hours community service. I add that in the circumstances I assume the Chief Executive of the Department of Correctional Services will send a notice to the appellant as contemplated by s 105(1)(d) of the 2017 Sentencing Act.
I turn to the licence disqualification. The periods of disqualification nominated by the Magistrate viewed in isolation are appropriate.
The disqualifications imposed on MCPAR-17-7147 and MCPAR-17-14360 should be served concurrently. As to the balance, whilst each episode of offending constitutes a separate incursion into criminality, to order that the related periods of imprisonment be served cumulatively would be excessive. I do not think that the purposes of punishment demand such result. In fact, I consider that fostering rehabilitation requires a lesser period of disqualification, a period that remains of sufficient length however to deter and protect.
In my view, the periods of disqualification imposed on each of MCPAR-17-7147, MCPAR-17-14360, and MCPAR-17-11676 should be served concurrently. The period of licence disqualification imposed on MCPAR-17-11273 should be commenced at the conclusion of that period imposed on MCPAR-17-7147. The result is a period of licence disqualification of five years to commence upon the appellant’s release from prison.
Standing back and considering the penalties I have imposed as a response to the appellant’s overall criminality, bearing in mind his personal circumstances, I decline to make any further adjustment. I do not think the totality of the punishment is disproportionate to the offending conduct.
Conclusion
The appeal is allowed and the appellant is resentenced in accordance with these reasons.
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