Police v Vannarath

Case [2015] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v VANNARATH

[2015] SASC 187

Judgment of The Honourable Justice Nicholson

27 November 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - GENERALLY

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED

Two prosecution appeals against sentence. The respondent was charged with the offence of driving whilst disqualified, pursuant to section 91(5) of the Motor Vehicles Act 1959 (SA), and driving with excess blood alcohol, pursuant to section 47B(1)(a) of the Road Traffic Act 1961 (SA). In committing these offences, the respondent was in breach of a suspended sentence bond for a previous offence of driving whilst disqualified. The respondent pleaded guilty to both driving offences and admitted the breach of the suspended sentence bond. The Magistrate sentenced the respondent to six months imprisonment, suspended upon entry into a bond to be of good behaviour and the Magistrate excused the respondent’s breach of the suspended sentence bond on the basis that he was entering into a new bond to be of good behaviour.

In the first appeal, the appellant contends that the sentence imposed by the Magistrate was manifestly inadequate on the basis that the Magistrate erred in the exercise of her discretion to suspend the term of imprisonment imposed.  In the second appeal, the appellant contends that the Magistrate erred in the exercise of her discretion to excuse the breach of bond. The appellant seeks orders that the term of imprisonment, for each of the driving disqualified offence and the breach of bond, be imposed.

Held:

1.  The manner in which the Magistrate approached the sentencing for the breach of the suspended sentence bond gave rise to an error of law.

2.  As a consequence, the Magistrate erred in suspending the sentence imposed for the drive whilst disqualified offence.

3.  The Magistrate made factual findings that could not be supported on the evidence before the Court and, as a consequence, the sentencing exercise miscarried.

4.   Both appeals allowed.

5.  The Magistrate’s sentencing orders with respect to the respondent’s offence of driving whilst disqualified in MCMTG-14-925 are set aside.

6.   The Magistrate’s order excusing the breach of bond in MCMTG-14-950 is set aside.

7.  Both matters are remitted to the Magistrates Court for resentencing before a different Magistrate.

Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) s 47B; Criminal Law (Sentencing) Act 1988 (SA) s 38, s 58; Offenders Probation Act 1913 (SA) s 9, referred to.
Police v Nissen [2014] SASCFC 77, (2014) 120 SASR 50; Police v Chilton [2014] SASCFC 76, (2014) 120 SASR 32; Police v Cadd (1997) 69 SASR 150

Continue reading Police v Vannarath

Sign in free to access the full text

Details
AGLC
Police v Vannarath [2015] SASC 187
Case
[2015] SASC 187
Decision Date

CaseChat Overview and Summary

In the matter of Police v Vannarath, the respondent, Vannarath, was appealing against a decision of the Magistrates Court of South Australia. The appeal concerned the sentencing of Vannarath for driving while disqualified and the breach of the conditions of a suspended sentence of imprisonment. The legal issues at the heart of this case were whether the Magistrate erred in law in her approach to sentencing, and whether the sentence imposed was disproportionate to the seriousness of the offence. The Court was required to determine if the appeal should be allowed, and if so, whether the matter should be remitted for rehearing or if the Court should proceed to resentence.

The Court found that the Magistrate's sentencing exercise miscarried due to her failure to obtain evidence from Vannarath himself through an interpreter if necessary, before forming a view on the issues. The Magistrate did not directly challenge the reasonable belief submission, and while the prosecution sought a further adjournment to explore the lack of understanding issue, the matter was not properly addressed. The Court concluded that in the absence of such evidence, the case was one where the sentence imposed by the Magistrate was so disproportionate to the seriousness of the offence as to shock the public conscience. As a result, the Court allowed both appeals and set aside the Magistrate's orders concerning the driving while disqualified offence and the breach of bond.

In light of the potential need for a dispute of facts hearing, the matter was remitted to the Magistrates Court for resentencing before a different Magistrate. This was one of the rare and exceptional cases where a prosecution appeal should be allowed, and the proper approach to sentencing, including any necessary factual enquiry, should be undertaken. The Magistrate's sentencing exercise miscarried, and any resentencing exercise would expose Vannarath to the possibility of a prison sentence after having first been given another suspended sentence, which was unfortunate and a significant consideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J
In my view, the two issues are quintessentially ones about which evidence from the respondent himself, through an interpreter if necessary, was called for before a view could be formed. Her Honour did not do this but accepted the submissions in circumstances which, as I have indicated, render the findings unsatisfactory. It is true that the prosecution did not challenge directly the reasonable belief submission, although the prosecution did seek a further adjournment in order to have an opportunity for the lack of understanding issue to be explored and possibly tested.Conclusion Ultimately, the question before the Court is whether or not the appeal should be allowed, bearing in mind the constraints imposed by the authorities with respect to a prosecution appeal against sentence. If so, it then would be necessary to decide whether the matter should be remitted for rehearing before another Magistrate or whether this Court should proceed to resentence. In either of the latter two cases, the sentencing officer would not be bound by the findings of fact made by the Magistrate and would have to revisit those findings afresh. In order to approach that task afresh, and provided the two submissions presently under consideration were to be maintained, a dispute of facts hearing would be required. This would involve, at the least, the giving of evidence by the respondent, perhaps with the assistance of an interpreter. It also might involve the giving of evidence by the psychologist if material statements purportedly made by the respondent to the psychologist were to be challenged or explained by the respondent in more mitigatory terms. Further, any enquiry into the lack of understanding submission may require an investigation into what took place at the earlier hearings and what was the respondent’s state of mind and understanding at the time he entered into the earlier bonds. It is not possible for this Court to know, at this stage, what would be involved in any such dispute of fact enquiry. The Magistrate’s sentencing exercise miscarried. The delays in finally resolving this matter and the fact that any resentencing exercise would expose the respondent to the possibility of a prison sentence after having first been given another suspended sentence are unfortunate and remain significant considerations. Nevertheless, this is one of those rare and exceptional cases where a prosecution appeal should be allowed. The proper approach to sentencing, including any necessary factual enquiry, should be undertaken. In the absence thereof, the case is one where, in my view, the sentence imposed by the Magistrate is so disproportionate to the seriousness of the offence as to shock the public conscience.[36] [36] R v Osenkowski (1982) 30 SASR 212 at 212-213, Police v Trill [2003] SASC 199 at [9]-[10]. I allow both appeals and set aside the Magistrate’s orders insofar as the drive disqualified offence and breach of bond are concerned. Given that, upon resentencing, a dispute of facts enquiry may be required I remit the matter to the Magistrates Court for resentencing before a different Magistrate.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Counsel for the respondent referred to Kourakis CJ’s observations in Nissen concerning principles of double jeopardy. The Court should only interfere on a prosecution appeal against sentence in circumstances where it was necessary to avoid manifest inadequacy or inconsistency in sentencing.[15] Counsel submitted that the sentence of six months imprisonment was within the range for the respondent’s offending. The respondent contended that it was within the discretion of the Magistrate to suspend the term of imprisonment. Factors that supported a favourable exercise of the discretion included the respondent’s honest but mistaken belief that he was permitted to drive using an international driver’s licence, that he has a “possible intellectual disability”, that he has a young family who would suffer if he was incarcerated, and that he is a 35 year old man who is productive in the community and employs 70 staff who also would suffer if he were to be incarcerated.[15] Police v Nissen [2014] SASCFC 77; (2014) 120 SASR 50 at [37], referring to the principles discussed in Everett v The Queen (1994) 181 CLR 295 at 299-300, and Police v Cadd (1997) 69 SASR 150 at 156-159. Consideration The Magistrate erred in law in the manner by which she approached the breach of bond and, ultimately, the two sentencing tasks. Her Honour considered and determined the question of sentence for the driving whilst disqualified offence, including whether or not to suspend the prison term to be imposed before considering whether or not there were proper grounds to refrain from revoking the suspension of the sentence the subject of the breached bond. This was not simply a case where the Magistrate had found proper grounds not to revoke the suspension but deferred writing about and explaining her reasons on this issue until after she had dealt with the substantive offence. Her Honour devoted the bulk of her sentencing remarks to a description of the circumstances of the substantive offence and of the various considerations relevant to penalty for that offence. Having determined that a prison sentence was called for, her Honour explained in some detail why, and notwithstanding that the respondent had previously received three suspended sentences for the same offence of driving whilst disqualified, there was good reason[16] in the present case to suspend the term of imprisonment she was to impose. [16] Section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) provides:(1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond— (a)to be of good behaviour; and (b)to comply with the other conditions (if any) of the bond. At the end of the remarks, the Magistrate then turned, very briefly, to consider the appellant’s application for breach of bond and dealt with it in these terms.[17][17] Remarks on Penalty at [13].The breach bond is admitted, but no further action will be taken because you are entering into a new suspended sentence bond with supervision.Section 58 of the Sentencing Act, insofar as is material to this appeal, is in the following terms. (1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court— (a)-(c) ... (d) if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect. (2)... (3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer 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— (a) may refrain from revoking the suspension; and (b) ... (4)Where a court revokes the suspension of a sentence of imprisonment, the court— (a) may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence; (b)-(c) ... (5)...