Police v Summers No. Scgrg-97-1394 Judgment No. S6504

[1997] SASC 6504

POLICE  v  SUMMERS

Perry J

This is an appeal by the police against the refusal by the learned sentencing Magistrate to order the revocation of four suspended terms of imprisonment imposed upon the respondent.  The appellant also appeals against the Magistrate’s order excusing the respondent’s failure to comply with conditions of four bonds upon which the sentences were suspended.  Additionally, the notice of appeal complains that the learned sentencing Magistrate erred in suspending sentences of imprisonment for two offences of driving whilst disqualified.

Overall, the appellant complains that the total punishment for the four breached bonds and the two offences of driving whilst disqualified were manifestly inadequate.

The matter was first listed in November when I stood it over to the December Magistrates Appeals list.  I did so as there had been a problem in serving the respondent, who was served only two or three days before the date assigned for the hearing before me.  It was put over to the December list on the request of the respondent’s solicitor, who sought further time to prepare the defence to the appeal.

I am satisfied by the affidavit of Michael Newton, a police prosecutor, that the respondent was in fact personally served with the notice of appeal outside the Adelaide Magistrates Court on 4 November 1997.

Mr Sprod represented the respondent in the court below, and the respondent was in the company of Mr Sprod when the respondent was served with the notice of appeal.

The notice of appeal is addressed to both the respondent personally and to Mr Sprod.  Mr Sprod spoke to my associate on the day before the hearing of the appeal, which was scheduled for Thursday 18 December 1996, when he said that he was experiencing difficulty in obtaining instructions and was unlikely to appear at the hearing.

The appointment for the hearing was advertised in the usual way in the daily press.

In the result, when the appeal was called on for hearing, neither the respondent nor any person on his behalf appeared, although his name was called.

Against that background, I heard the appeal ex parte, and received submissions from Mr Hinton of counsel for the appellant.

The appellant is a 23 year old man who has accumulated a long and depressing history of prior offending dating back to 1990 when he was 16 years of age.  His record of prior convictions runs to a little over 22 pages, and includes offences of illegal use of motor vehicles, assaults, attempt to pervert the course of justice, breaking and entering, disorderly behaviour, offensive language, resisting police, larceny, a number of driving offences, and more particularly three prior offences of driving while disqualified.

On 18 August 1995 the appellant’s licence was disqualified for twelve months.  In breach of that disqualification, he has admitted to a charge that on 7 January 1996 at Black Forest he drove whilst disqualified.  He has further admitted to having on 6 March 1996 at Marleston, committed the same offence.

It is his conviction on his plea of guilty to charges relating to those offences, which give rise to the two sentences under appeal.

Following his plea of guilty to those offences on 8 April 1997, the learned sentencing Magistrate made successive adjournments of the matter until 5 August 1997.  By that stage, the appellant also faced four applications to enforce breach of bonds.

The first bond was imposed following the appellant’s appearance in Adelaide Magistrate’s Court on 13 September 1993 when he was convicted and sentenced to six months imprisonment on a charge of using a car without permission.  That sentence of imprisonment was suspended upon his entry into a two year good behaviour bond.

When he appeared in court on 18 August 1995 on an application to enforce the breached bond on the basis that he had failed to comply with a condition of it, namely, that he perform community service, although the breach was found proved, the bond was extended for a period of six months.

On the same day, that is, 13 September 1993, on a charge of illegal use, the respondent was separately convicted and sentenced to six months imprisonment which was suspended upon his entering into a two-year bond to be of good behaviour.  That in turn was, on 18 August 1995, extended for a further period of six months following proof that he had breached it.

On 18 August 1995, on a charge of driving whilst disqualified, the respondent was convicted and sentenced to three months imprisonment suspended on a further good behaviour bond of two years.

On the same date, that is, 18 August 1995, he was sentenced to six months imprisonment on a charge of using a motor vehicle without permission, upon the basis of which he was also given a suspended six month sentence of imprisonment upon his entry into a two-year good behaviour bond.

It is those four bonds which it was alleged, when the respondent came before the court on 5 August 1997 to answer to the matters now under review, he had breached by reason of the driving whilst disqualified charges.

The facts alleged, which have been confirmed by an affidavit of the police prosecutor, Mr Semple, were as follows.

As to the offence committed on 7 January 1996, police on uniformed patrol in Forest Avenue, Black Forest, observed the respondent riding a Suzuki motor cycle for about five metres and then perform a U-turn at the intersection with Gray Street.  The police officers attempted to stop the appellant, who was recognised by them, but he rode up onto the footpath and into the driveway of his home in Winifred Street at Black Forest.  The police officers followed, and parked their vehicle in his driveway.  He admitted to driving without a motor cycle or car licence.  When asked what his reason for driving was, he said, "Well, the bike isn’t mine.  I’m taking it for a test ride.  It belongs to the Honda shop".  When asked whether he had any reason for riding, he said, "No, not really".

As to the offence which occurred on 6 March 1996, police on uniform mobile patrol were travelling south along Grove Avenue at Marleston.  They saw the respondent driving a Ford sedan in the same direction on the same street.  The police stopped the vehicle and had a conversation with the respondent, who admitted that he was currently under licence disqualification and that he was aware that it was an offence to drive whilst under disqualification.  He stated that he had just bought the car and was taking it home.

The respondent was represented by counsel, Mr Sprod, who put submissions on his behalf, following which the learned sentencing Magistrate adjourned the matter to 27 August 1997 for sentence.

During the course of the sentencing remarks which he delivered on that day, the learned sentencing Magistrate said:

"Mr Sprod has persuasively made several points in your favour for either no action being taken on the breaches of the bond which you have admitted, or bonds being extended.  He said, for example that there is a degree of staleness about the offending on which the suspended sentences were based, and I accept that.  Some water has passed under the bridge since the offences were committed.  You were entitled, in my view, to put the matters off to enable the court and your counsel to have the benefit of the Full Court decision on the matter of drive under disqualification, and that, of course, came in the case of Cadd and Hall etc where it appears from my reading of the judgments, in particular the judgment of Mullighan J, that the discretion to deal with matters of driving whilst disqualified is unfettered.

Mr Sprod has made the point that, although you have a significant record, it is true to say that over more recent times you seem to be making some adjustments which would indicate that there is some prospect that you can become a useful citizen, and I must keep a sense of balance about the nature of the actual offending with which I now deal.  They are serious offences, but they are not the most serious offences in the criminal calendar."

The learned sentencing Magistrate then goes on to refer specifically to the charges of driving whilst disqualified.  He referred also to a report which had been put before him furnished by Mr Allen Fugler, a clinical psychologist, which gave much detail as to the respondent’s unfortunate family circumstances and deprived upbringing.  During the period of the adjournment the respondent had apparently made some efforts towards shaking free of a drug problem and had, to a certain extent, made some progress towards stabilising his behaviour.  The learned sentencing Magistrate went on to say:

"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 recognise that two of the bonds have some time to run, but I think that there are proper grounds simply to excuse the breaches."

The learned sentencing Magistrate then specifically found that there was "good reason" to suspend the periods of imprisonment for driving whilst disqualification pursuant to s38 of the Criminal Law (Sentencing) Act 1988.

In fact, he imposed a term of three months imprisonment on the offence committed on 7 January 1996 and a period of six months on the offence committed on 6 March 1996.  As to the earlier matter, he suspended the sentence upon the entry into a bond to be of good behaviour for twelve months, and on the latter matter a similar bond but for a period of eighteen months.

In my opinion, the course taken by the learned sentencing Magistrate, both with respect to the breached bonds and with respect to the charges of driving whilst disqualified, was erroneous.

In the first place, it was wrong to state that "there is a degree of staleness about the offending on which the suspended sentences were based".  That observation ignores the fact that the bond was still current, and the breaches of the bond relatively recent.

In taking the course which he did, the learned sentencing Magistrate must have been satisfied that there were "proper grounds" within the meaning of s58(3) of the Criminal Law (Sentencing) Act 1988 upon which the failure to comply with the condition of the bonds should be excused.

It appears from the sentencing remarks that in reaching that conclusion, the learned sentencing Magistrate had regard to the personal circumstances of the respondent rather than the circumstances of the breaching offences. But it has been clearly established that in invoking the exercise of the discretion under s58(3), the court must have regard to the circumstances of the breaching offences rather than other matters. See, for example, R v Buckman per King CJ:

"I think that parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it."

In the same case, Jacobs J observed:

"... proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed: special circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced which had they existed at that time might have justified a reduced sentence."

In this case it simply could not be said that the circumstances in which the breaching offences were committed could conceivably give rise to a positive exercise of the discretion under s58(3) in favour of the respondent. Driving whilst disqualified is a serious offence, and there was nothing in the circumstances of the two offences now in question which could properly be taken to ameliorate the seriousness of them for present purposes. The respondent had no excuse for driving, and his act of driving in both instances should properly be regarded as "contumelious" in the sense in which that word was discussed in Police v Cadd and Ors.

While it is true that the "special circumstances" justifying the reduction of the term of the suspended sentence, or one of the other courses postulated by s58(4), may relate to the personal situation of the offender rather than to the circumstances of the offence, in my opinion, there were no grounds made out upon which that discretion could have been invoked.

It follows that there were no grounds upon which the learned sentencing Magistrate was justified in doing other than activating the terms of the suspended sentences.

As to the penalties imposed on the offences of driving whilst disqualified, there was likewise no justification for suspending the terms of imprisonment which were imposed.  It will rarely be the case that the court could properly suspend a sentence for driving whilst disqualified when the offence is a second offence, let alone, as it the case here, the offences were fourth and fifth offences.

While I am well aware of the high onus upon the police in bringing an appeal against sentence, the overall approach of the learned sentencing Magistrate in this case was so manifestly erroneous that it gave rise to a miscarriage of justice of sufficient dimensions to justify intervention by way of appeal at the behest of the Crown.

I would, therefore, allow the appeal and quash the orders pursuant to which the learned sentencing Magistrate excused the breaches of the bonds, and quash his finding that there were proper grounds upon which the failure to comply with the terms of the bonds might be excused.  I would likewise quash the orders pursuant to which he suspended the sentences of imprisonment imposed on the offences of driving whilst disqualified.

However, simply to allow all of the sentences to be activated and, presumably, to be served cumulatively, would give rise to an unduly harsh overall penalty.  The principle of totality must be brought into play in order to moderate the overall result so as to reflect a total sentence which is proportionate to the overall offending.

On the four breaches of bond, the activated sentences amount in all to eighteen months. The total terms of imprisonment imposed on the two offences of driving whilst disqualified amount to nine months.

I think that the justice of the case would best be met by directing that the terms of imprisonment activated by breaches of the bonds be served cumulatively, but that the two sentences of imprisonment for driving whilst disqualified of three and six months respectively, be served concurrently with the four other terms of imprisonment.

In the result, the head sentence becomes effectively 18 months imprisonment.  I would fix a non-parole period of 12 months against that head sentence.  The head sentence and the non-parole period are to commence from the date upon which the respondent is taken into custody in consequence of my orders allowing the appeal.

I refer the matter to the Magistrates Court for a warrant to be issued for the arrest of the respondent, unless he surrenders to the Court, so that he may serve the term of imprisonment which I have substituted in the order allowing the appeal.