Police v Summers

[1998] SASC 6950

POLICE v SUMMERS
[1998] SASC 6950

Magistrates Appeal:  Criminal

1. OLSSON J.                This matter came before me pursuant to an order of the Full Court made on the 11 September 1998.  By that order the Full Court allowed an appeal against an order made by Perry J in relation to an appeal from a magistrate, set aside his order and remitted the proceedings for rehearing before another Judge.  Having heard counsel I dismissed the appeal from the decision of the learned magistrate.  I now publish my reasons for so doing.

2. Most of the relevant background facts are set out in the judgment written by me as a member of the Full Court (see Summers v Police [1998] SASC 6845). There is, therefore, no need to retrace all of this ground in the course of these reasons. Suffice to say that I am now required to reconsider afresh a prosecution appeal against an order of a stipendiary magistrate suspending two sentences of imprisonment which he imposed, consequent upon the conviction of the respondent of two separate offences of driving disqualified. The appeal also challenged the refusal of the learned magistrate to revoke the suspensions of four earlier custodial sentences, by reason of the breaching of bond conditions to be of good behaviour.

3. Full details of the earlier suspended sentences are set out in my above judgment and I will not here repeat them.  Three of them were for illegal use of a motor vehicle. The fourth was for an offence of driving disqualified.  Two offences of illegal use occurred on 13 September 1993, whilst the remaining two offences were committed on 18 August 1995.  The further offences before the learned magistrate occurred on 7 January 1996 and 6 March 1996 respectively.

4. In my judgment I described these last mentioned offences in the following terms:-

   “The first arose from an incident which occurred on the date in question when police officers on mobile uniform patrol (who were acquainted with the appellant and aware that he was subject to licence disqualification) observed him riding a motorcycle over a relatively short distance on Forest Avenue, Gray Street and Winifred Avenue, Black Forest.  When stopped and questioned he admitted the offence.  He stated that the motorcycle was not his - that it belonged to the "Honda Shop" and he was taking it for a test drive.

   The second related to an incident which occurred at about 11 p.m. on 6 March 1996.  A police mobile uniform patrol stopped a yellow Ford X - C motor vehicle being driven by the appellant along Grove Avenue, Marleston, because of an apparent defect in its lighting.  A licence check indicated that the appellant was driving whilst under suspension.  When questioned he said that he was aware that this was the situation and that it was an offence to drive.  Bearing in mind the time of night, he told the police what seemed, at the time, to have been a somewhat unlikely story that he had just purchased the car and was taking it home.  (A somewhat different explanation was later put to the learned magistrate in the course of submissions).”

1. In the course of submissions by him to the learned magistrate, counsel for the respondent explained that, so far as the first offence was concerned, the motorcycle in question had been delivered to the respondent's house by an employee of the Honda Shop and that the respondent was considering purchasing it.  It was said that the respondent rode the motorcycle a distance of only a few metres in his own, dead-end street and then up the cement apron of the driveway of the house.  This was said to have been a quiet suburban street with no cars or pedestrians in the vicinity.  The speed of the motorcycle was only a few kilometres per hour.

2. It must be said that this explanation was somewhat more benign than the resume of facts given by the police prosecutor.  The police report indicated that, on the occasion in question, officers on uniform patrol observed the respondent sitting stationary on the motorcycle on Forest Avenue, facing west.  He then travelled west on Forest Avenue for approximately 5 metres and performed a U-turn at the intersection of Gray Street and Forest Avenue.  The police officers recognized the respondent and knew that he was unlicensed.  They attempted to stop him by positioning the police vehicle across the intersection of Forest Avenue and Winifred Street.  He thereupon rode up onto the footpath in a southerly direction behind the police vehicle and into the driveway of his home address.  The obvious inference is that, had the police not come on the scene, more extensive riding would have occurred.

3. In relation to the driving disqualified offence committed on 6 March 1996, it was put to the learned magistrate that the respondent had recently acquired the Ford vehicle.  He had allowed a friend to use it on the night in question, but, later that night, had received a telephone call advising him that his friend was drunk and could not drive the vehicle.  It was alleged that the respondent was further informed that there was no garage available for the vehicle at the place where it was; and that on street parking was insecure.  Counsel for the respondent submitted that his client was concerned about the safety of the vehicle and had not had time to insure it.  He, therefore, obtained a ride to the house where the vehicle was and drove it away, intending to take it home.

4. On reading the remarks of the learned magistrate as to penalty it is not clear what view he took of this lastmentioned story.  He merely commented that it was not an offence aggravated by driving whilst the respondent was intoxicated, or in an erratic and dangerous manner.  All that needs to be said is that, on the face of the situation, the story promoted on behalf of the respondent strains credulity to the breaking point, particularly when regard is had to the respondent's antecedent record.  It is difficult to escape the conclusion that this was a deliberate act of driving in defiance of the licence disqualification.

5. As I pointed out in my judgment in the Full Court, the respondent has an appalling antecedent record.  On the face of the situation before the learned magistrate a natural reaction would be that, not only should there be a requirement to serve actual custodial sentences in relation to the two offences to which the respondent had pleaded, but, also, his breaches of the bonds which had been entered into by him ought to have led to the immediate revocation of the suspended sentences to which they related.

6. However, counsel for the respondent strongly contended that, in light of the report of a forensic psychologist and various references placed before the court, the learned magistrate ought to suspend any sentences imposed by him and to refrain from revoking earlier suspensions.

7. In his report, having traversed details of the very dysfunctional family background of the respondent and his own long history of substance abuse, Mr. Fugler had this to say:-

   “Your client is aware of the sentencing alternatives with respect to drive disqualified and expects to be imprisoned.  Despite that he has actively sought psychological assistance and has been diligent in attending sessions.  Mr. Summers is drug free and his behaviour appears to have begun to stabilize.  He was depressed and probably quite frightened prior to the matter before the court and is not likely to have given much thought to the consequences of his behaviour.  His psychological functioning has improved, no doubt assisted greatly by drug abstinence.  Mr Summers has had an unusual childhood to say the least and is struggling with concepts and behaviours normally learned and experienced through youth and the maturation process.  He remains confused in a number of areas but is determined to choose a future different from that he has become accustomed to.  That will be a difficult task and will require consistent attention and motivation on his part.  Assistance is available should he choose that option.  While there is obviously some distance to go, your client has made an encouraging start.”

1. That assessment was made on the basis of four sessions of psychotherapy between 4 February 1997 and 10 March 1997.

2. I should mention that the report in question is quite a lengthy document and traverses the very unusual background of the respondent in some detail.  It is impractical to attempt to summarize this in the course of these reasons.  It is sufficient to say that his mother is a well-known figure in the so-called sex industry and he never met his biological father.

3. A letter from the Aboriginal Sobriety Group certified that the respondent was a relief worker for the group as at May 1997;  and was at the top of the list of the group for full-time employment.  A separate personal reference from a person who had known the respondent for about four years expressed the view that the respondent needed love and understanding, which had been lacking for most of his life.  She expressed the view that he had been the product of his unfortunate environment and, with the help of Mr Fugler, was now facing reality.  The reference expressed support for him, as an intelligent person who was now keen to make a success of his life.

4. The learned magistrate noted that a good deal of delay had occurred in relation to the disposal of the charges, due to the then pending appeal to a special Full Court in the matter of Cadd.  Some delay had also a been occasioned by the respondent fleeing to Queensland, because he said that he had been in fear of his life.  This apparently related to some circumstances attaching to the death of his mother's former de facto partner, who had also been very much of a father figure to him.

5. Having adverted to the content of the psychologist’s report and the other references, the learned magistrate had this to say:-

   “All of the these are matters which I take into account, and, although it is unusual, I think that there is some light at the end of the tunnel here and I think it is important that I give you the opportunity to show that you are going to accept that you have the responsibility for making a go of your life, and that you are honestly asserting that you think you can now do it.  I think it would be counterproductive at this stage to send you to prison immediately.

   You have had those bonds hanging over you for some time, and I have thought carefully about that over the adjournment, about whether I should extend them, and I think it is time for a fresh start for you.  I think the best course I can take, although I know it is unusual, is simply to take no action in respect of the breaches of bond.  The two where there are suspended sentences involved.  I recognize that two of the bonds have some time to run, but I think that there are proper grounds simply to excuse the breaches.  I say this is an unusual state because I want you to prove that the confidence I am now placing in you is not misguided.  We will only know that over the period of the next two years or so, so it is really over to you about that.  On the various bonds I excuse the breaches and take no action.  So it is a fresh start.  Obviously the driving whilst disqualified matters call for a term of imprisonment.

   I say there are proper grounds for excusing the breaches.  They are your youth, notwithstanding your longish history before the court; the fact that you seem to be realizing that you can do something with your life; the fact that you have some prospects of work, and those circumstances generally convince me that there are proper grounds for excusing the breaches.”

1. He thereupon imposed a sentence of three months’ imprisonment in respect of the first offence and six months’ imprisonment in respect of the second, to be served cumulatively.  He suspended both sentences upon the respondent entering into successive bonds to be a good behaviour for a total period of 18 months.

2. In prosecuting the present appeal the appellant accepts that it bears a heavy onus.  In order to succeed it must show that the sentences imposed are so disproportionate to the seriousness of the crime as to shock the public conscience, or that it is necessary to correct the idiosyncratic views of an individual judicial officer, or that the sentences must be adjusted to maintain adequate standards for the type of offending in issue (Police v Cadd & Ors (1997) 69 SASR 150).

3. Two separate issues arise for consideration.

4. The first is whether it could fairly be said that any circumstances were placed before the learned magistrate which would entitle him to excuse the admitted breaches of the earlier bonds, so as to warrant taking no action in relation to those breaches.

5. Section 58 of the Criminal Law (Sentencing) Act 1988 stipulates that the breach of a bond supporting a suspended sentence may only be excused if it was trivial, or if there are otherwise a "proper grounds" upon which the breach may be excused. As counsel for the appellant points out, there appear to be divergent lines of authority as to what may properly constitute a "proper grounds". There can be no doubt that appropriate facts and circumstances related to the breach itself and the character of it can be relied upon as a basis for declining to revoke a previously suspended sentence (R v Buckman (1988) 47 SASR 303, Norman v Lovegrove (1986) 40 SASR 266).

6. There are dicta in the lastmentioned two cases which might suggest a that it is only factors relating to the breach itself which are capable of constituting proper grounds for declining to revoke a suspended sentence.

7. It seems to me that cases decided subsequently to them suggest that this is not so.  In the course of his reasons in Johnson v Police (Debelle J, 22 June 1995, S5135, unreported) Debelle J, having referred, particularly, to the expressions of opinion by Jacobs J in Buckman (supra), expressed the view that the latter was not intending to suggest that proper grounds should be related only to the nature of a breaching offence.  He went on to conclude that, if a probationer is able to demonstrate that there are special or exceptional circumstances which pertain either to himself personally, or otherwise relate to the breach of the relevant bond, it is appropriate to have regard to them in determining whether the suspended sentence should be revoked.  He pointed out that the expression "proper grounds" is not limited by any other expression.  The words used must be accorded their fullest reasonable connotation.  That view was reiterated by him in Reynolds v The Queen (Court of Criminal Appeal,  27 October 1995, unreported).  I do not take the other judges in that case to have dissented from his view.  Certainly, such an approach has been adopted in other cases such as Manning v Police (1993) 59 SASR 427, Stanitzki v Higgins (1994) 63 SASR 309, and Korber & Anor v Bailey (1994) 63 SASR 426. With respect, I see no reason to dissent from that conclusion.

8. As I understand the submissions put, both to the learned magistrate and myself, it was not seriously argued that the nature and circumstances of the breaching offences in the instant case could amount to proper grounds within the meaning of s58 of the Criminal Law (Sentencing) Act.  Rather, it was argued that the personal circumstances of the respondent were such as to fall within that categorisation.  Counsel for the appellant argued that, in the circumstances as I have above outlined them, it simply could not reasonably be said either that there was anything special or exceptional, or that any activation of the earlier sentences was disproportionate to the recent offending.

9. It was further contended in the appellant’s outline that, on any view, the more recent offences could only be described as contumacious in nature.  As such they necessarily attracted custodial sentences, which ought actually to be served.  It was submitted that the respondent's actions displayed a total disregard of the disqualification and a blatant disobedience of the authority which imposed it.  Given the antecedent background of the respondent, the personal mitigating factors relied upon were simply inadequate to warrant the leniency which was in fact extended.

10. Having made those points, the appellant did however, very fairly, concede that the considerable passage of time associated both with the appeal in Police v Cadd & Ors (supra) and that in the present matter, together with the double jeopardy situation which has arisen in relation to the respondent, are factors which this court is entitled to bear in mind, regardless of the other technical merits of the appeal.

11. Whilst counsel for the respondent has sought to justify the approach adopted by the learned magistrate, having regard to the psychological problems of the respondent and the likely harsh outcome of requiring him to serve both the original suspended sentences and also new sentences, I must confess that I have great difficulty in accepting the reasoning of the learned magistrate. No doubt, he was properly preoccupied with what appear to be the first signs of possible rehabilitation of the respondent. Nevertheless, such was the deliberate nature of the breaching offences and the problem of the previous appalling antecedent record of the respondent that it is extremely difficult to perceive how the situation could reasonably be brought within the aegis either of s58(3) of the Criminal Law (Sentencing) Act or the well established line of authorities stemming from The Queen v Walker (1981) 27 SASR 315, and referred to in the course of my judgment in Korber & Anor v Bailey (supra) at 430. It must be stressed that this respondent had already had the benefit of four suspended sentences, breaches of which were a circumstance of aggravation in relation to the breaching offences. Added to that was the prior, very substantial, antecedent record of the respondent.

12. I am bound to say that, in other circumstances, I would have regarded myself as bound to allow the present appeal.  The material before the learned magistrate was simply too thin to warrant the course which was taken.  However, having said that, it seems to me that the extreme delay which has occurred since the date of the breaching offences and the problem of double jeopardy associated with what has transpired in the meantime, combine to place this matter in an exceptional category which attracts the concept discussed in authorities such as The Queen v Suckling (1983) 33 SASR 133 at 136, Stanitzki v Higgins (1994) 63 SASR 309 at 313 - 4, R v Miceli (1997) 94 A Crim R 327 and R v Lekaj (1997) 92 A Crim R 325. I do not think that it would be just, in the circumstances, at this stage, to call upon the respondent actually to serve the various custodial sentences in issue. It is, I think, proper, in this connection, to have regard to those steps which the respondent has already taken towards his rehabilitation. Time will tell whether that rehabilitation continues in a positive direction. If it does not and he reoffends, then the almost inevitable consequence will be that he will be called upon to serve any custodial sentences still suspended as at time of offending. It is a situation which, as counsel for the appellant concedes, can properly attract a merciful approach.

13. Upon that basis I was disposed to dismiss the appeal.