Police v Vannarath
[2015] SASC 187
•27 November 2015
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, discussed.
R v Osenkowski (1982) 30 SASR 212; Dinsdale v The Queen [2000] HCA 54, (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295; R v Buckman (1988) 47 SASR 303; Johnson v SA Police Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995; Reynolds v R Unreported, Court of Criminal Appeal of South Australia, 27 October 1995; R v Hunter [2015] SASCFC 84; R v Wirth (1976) 14 SASR 291; R v Moffa (No 2) (1977) 16 SASR 155; R v Jongewaard [2009] SASC 346; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; House v The King [1936] HCA 40, (1936) 55 CLR 499; R v Kreutzer [2013] SASCFC 130, (2013) 118 SASR 211; R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144; R v Horstmann [2010] SASC 103; Bugmy v The Queen [2013] HCA 37, (2013) 249 CLR 571; Kentwell v The Queen [2014] HCA 37, (2014) 252 CLR 601; Davis v Bates (1986) 43 SASR 149; Smith v Manno [1961] SASR 17; Director of Public Prosecutions v Kailahi [2008] NSWSC 752, (2008) 191 A Crim R 145; R v Bukvic (2010) 107 SASR 405; Police v Trill [2003] SASC 199, considered.
POLICE v VANNARATH
[2015] SASC 187Magistrates Appeal: Criminal
NICHOLSON J.
Introduction
These are prosecution appeals against sentence imposed by a Magistrate. The respondent was charged, by complaint and summons dated 5 June 2014, with the offence of driving whilst disqualified[1] and driving with excess blood alcohol.[2]
[1] Contrary to section 91(5) of the Motor Vehicles Act 1959 (SA), the maximum penalty for which, where (as here) a subsequent offence, is imprisonment for two years.
[2] Contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA), the prescribed penalty for which, where (as here) a category 1 offence and a first offence, is a fine of $1,100 and disqualification from holding a drivers licence for a minimum of three months.
On the evening of 16 May 2014, the respondent was stopped by police in Naracoorte and was requested to undertake an alcotest which returned a positive result of 0.055 grams of alcohol in 210L of breath. The respondent was taken to Naracoorte Police Station where it was revealed that he had been disqualified from holding a driver’s licence as a result of an accrual of demerit points. The respondent had produced his international driver’s licence to the police and stated that while he knew his South Australian driver’s licence had been disqualified he thought he could still drive using his international licence.
The respondent’s offending caused him to breach a bond to be of good behaviour entered on 13 March 2014 following his conviction for a previous offence of driving while disqualified. The bond supported a suspended term of imprisonment for three months. An application for breach of the bond to be of good behaviour was laid by the police on 10 June 2014.
On 27 January 2015, the respondent pleaded guilty to both charges at the Christies Beach Magistrates Court and admitted the breach of the suspended sentence bond. Sentencing submissions were heard on 27 January 2015 and 14 May 2015. Various letters of support and a psychological report was provided in aid of those submissions. Following the submissions on 14 May 2015, the Magistrate proceeded to sentence the respondent.[3]
[3] Police v Vannarath, MCMTG-14-925, MCMTG-14-950, Remarks on Penalty, 14 May 2015.
For the offence of driving whilst disqualified, the Magistrate imposed a six month term of imprisonment to be suspended upon entering into a bond to be of good behaviour for a period of two years. For the offence of driving with excess blood alcohol, the Magistrate disqualified the respondent from driving for a three month period commencing on 1 June 2015 and imposed a $1,100 fine, payment of court costs, prosecution costs and the Victims of Crime Levy. Her Honour then ordered that no further action was to be taken with respect to the breach of the bond because the respondent was to enter into a new suspended sentence bond with supervision.
By notice of appeal filed on 3 June 2015, the appellant has appealed against the sentence imposed by the Magistrate for the drive disqualified offence (“the substantive appeal”). There is no appeal against the sentence for the drive with excess blood alcohol offence. The appellant relies on the following grounds of appeal:
1.The sentence was manifestly inadequate in that by suspending the term of imprisonment, the sentence:
(a) failed to reflect the seriousness of the offence;
(b) failed to reflect the need for general and personal deterrence for offending of this type, particularly given the respondent’s prior convictions for driving whilst disqualified; and
(c) failed to maintain an adequate standard of punishment for offending of this type.
2.The Magistrate erred in finding that good reason existed for suspending the term of imprisonment.
3.Abandoned.
4.The Magistrate erred by taking into account irrelevant considerations, namely the respondent’s belief that he could drive on the authority of a purported international driving permit.
5.The Magistrate placed too much weight on the effects of the sentence on the respondent’s dependents.
The appellant seeks an order that the Magistrate’s order suspending the term of imprisonment be set aside such that the respondent is to serve the term of imprisonment forthwith.
By a further notice of appeal filed on 3 June 2015, with respect to the application for breach of the bond to be of good behaviour (the “bond appeal”), the appellant has appealed against the order of the Magistrate excusing the breach of the suspended sentence bond. The sole ground of appeal is that the Magistrate erred in excusing the breach where the failure of the respondent to comply with the conditions of the bond was not trivial and there were no proper grounds upon which the failure could be excused. The appellant contends that the suspension of the sentence should be revoked and the sentence carried into effect.
The respondent’s criminal antecedents
The respondent’s criminal antecedents, as identified in the Offender History Report provided to the Magistrate, include various offences of driving unregistered, driving without a licence and driving whilst disqualified.[4] The following table sets out relevant prior offences and penalties imposed.
[4] The respondent has also committed the offences of possession of a firearm without a licence, unlawful possession, and carrying an offensive weapon, for which he was sentenced in 2004 to 21 months imprisonment with a non-parole period of 14 months.
10 Offence
11 Date of Offence(s)
12 Sentence
13 Date of Sentence
14 Drive unregistered motor vehicle on a road; drive uninsured motor vehicle on a road; drive unlicensed
15 13/10/01
16 $250 fine
17 25/02/02
18 Drive unregistered motor vehicle on a road; drive uninsured motor vehicle on a road; fail to truly answer; drive unlicensed
19 13/10/01
20 $400 fine
Driver’s licence disqualification for 14 days21 25/03/02
22 Drive motor vehicle on a road unauthorised
23 29/07/05
24 $150 fine
25 12/01/06
26 Drive motor vehicle on a road unauthorised
27 03/08/05
28 $200 fine
29 12/01/06
30 Drive under disqualification
31 03/12/08
32 $250 fine
33 18/05/09
34 Drive under disqualification
35 08/12/08
36 42 days imprisonment, suspended upon entry into good behaviour bond for 18 months
37 Driver’s licence disqualification 14 days
38 04/02/09
39 Drive under disqualification
40 13/08/11
41 8 weeks imprisonment, suspended upon entry of good behaviour bond for 18 months
42
43 18/10/11
44 Drive under disqualification
45
46 26/09/13
47 3 months imprisonment, suspended upon entry into good behaviour bond for two years
48 13/03/14
The Magistrate’s reasons
The Magistrate acknowledged that the respondent had received the benefit of “three chances of suspended sentences” and that normally he would “have run out of any further chances”. However, her Honour found “good reasons” to suspend the sentence of imprisonment for six months that she imposed for the drive disqualified offence. Her Honour’s remarks included the following.[5]
I find that good reasons do exist to suspend any term of imprisonment, based on the fact that in this case, you had an honest belief that you were allowed to drive with an international licence; that you are a family man with an infant child whose family will be adversely affected by any period of incarceration; you have 70 staff that would also be affected in some way if you were incarcerated for their employment and you are a man who has strong community ties with your family and your business. The issue of language may have been a prominent issue in the past in court for you not to be given the warnings in your own language. You have some longstanding issues, including alcohol abuse that I consider needs to be addressed by you, and more importantly, you have not been given supervision before, despite being given three suspended sentences.
[5] Remarks on Penalty at [10].
The respondent’s counsel[6] had provided a psychological report to the Magistrate. On the basis of that report and counsel’s submissions, the Magistrate noted the following concerns: the respondent’s longstanding alcohol abuse; the respondent’s cognitive deficits and possible intellectual disability; and that the respondent, who was born in Laos, had appeared on earlier occasions in the Magistrates Court without an interpreter and may not have understood the warnings given when earlier suspended sentences were imposed. Her Honour also received letters from the respondent’s wife that outlined difficulties that would be suffered by the respondent’s family in the event that the respondent were to be imprisoned.
[6] Different counsel appeared for the respondent before the Magistrate and on appeal.
Of significance to the Magistrate with respect to the substantive offending and, at least by implication, the breach of bond, was her finding that the respondent had held an honest belief that he was entitled to drive with an international driver’s licence.
The approach to prosecution appeals against sentence
In R v Osenkowski,[7] King CJ made the following observations concerning the nature of prosecution appeals against sentence.
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[7] (1982) 30 SASR 212 at 212-213.
His Honour’s reasons were referred to in the matter of Dinsdale v The Queen.[8] Kirby J, in the context of his consideration of Crown appeals and the requirement for error to be established, said this.
In Everett v The Queen, McHugh J observed that the jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal “so that the court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing” which is “of great importance in maintaining confidence in the administration of justice in any jurisdiction”. Inadequate sentences, as his Honour pointed out, are, as much as excessive sentences, “likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes”. In this sense, the power of courts of criminal appeal to set aside sentences judged to be obviously erroneous is an important attribute of the jurisdiction and powers of such courts. It permits them to discharge their statutory functions as Parliament contemplated.
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across “time-honoured concepts” of the administration of criminal justice in common law legal systems. For this reason, it has sometimes be said that, as a “matter of principle”, such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate “tinkering” with sentences.
[8] [2000] HCA 54; (2000) 202 CLR 321 at 340-341 (citations omitted).
The approach to sentencing for the offence of drive disqualified
The Full Court in Police v Nissen[9] and Police v Chilton[10] has recently revisited the guidance given by the Full Court in Police v Cadd.[11] Each of the Judges in the majority in Police v Cadd endorsed the proposition that a sentence of imprisonment is appropriate “in the ordinary case of contumacious offending by a first time offender” but the circumstances of the offending or the offender may otherwise require a less severe form of punishment.[12] Kourakis CJ, with whom David J agreed, in Nissen referred to the majority’s approach in Police v Cadd and continued:[13]
The feature of an offence of driving whilst disqualified from holding a licence, or whilst a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving whilst holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender’s personal circumstances.
The measure of the offender’s attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach.
It can generally be inferred that a person who drives when disqualified, or whilst holding a suspended licence, after having been convicted of an earlier offence, has a contempt for or, at least, a dismissive attitude to orders of disqualification or suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence.
[9] [2014] SASCFC 77; (2014) 120 SASR 50.
[10] [2014] SASCFC 76; (2014) 120 SASR 32.
[11] (1997) 69 SASR 150.
[12] At 179 (Mullighan J). This passage is referred to in the addendum to the reasons of Doyle CJ and is generally understood as being common to each of the separate judgments delivered (Doyle CJ, Duggan J and Mullighan J).
[13] [2014] SASCFC 77; (2014) 120 SASR 50 at [27]-[29].
In Chilton, Kourakis CJ, with whom David J substantially agreed, observed that a recidivist offender with no compelling reason to drive can expect to be imprisoned:[14]
...It can be accepted that imprisonment is a sentencing option of last resort. However that, common law and statutory, principle is not applied by a sentencing judicial officer in each individual case free of the consideration of its application to offences of the kind in question by other courts and the Full Court of this Court in particular. The reasons of this Court in Cadd, which was recently considered by this Court in Police (SA) v Nissen, show that such is the need for personal deterrence and general deterrence for offences of this kind that a recidivist offender with no compelling reason to drive can, in the ordinary course, expect to be imprisoned notwithstanding that statutory and common law principle. To put it bluntly, so great is the need to ensure that disqualification orders operate as an effective sanction in ensuring compliance with the rules of the road that imprisonment will, generally, be resorted to in the case of offenders who repeatedly flout judicial or administrative orders of disqualification.
[14] Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 at [21].
In light of these authorities, the appellant submitted that the Magistrate erred in suspending the sentence of imprisonment, because none of the factors identified in her Honour’s reasons were sufficient to amount to “good reason” as required by section 38(1) of the Criminal Law (Sentencing) Act 1988. During the appeal, the appellant did not concede that the respondent had held an honest and reasonable belief that he was allowed to drive with an international driver’s licence. Further, it was submitted that this factor, in any event, fell short of a basis for allowing the suspension of the sentence, given the respondent’s history of driving offences.
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)...
There is no suggestion in this matter that the respondent’s failure to comply with the conditions of the bond was trivial. As such, in order for her Honour to refrain from revoking the suspension of the sentence, her Honour needed to be satisfied that there were “proper grounds upon which the [respondent’s] failure should be excused”.[18] Ordinarily, proper grounds in this context call for a consideration by the Court of the nature and circumstances of the breaching offence. In R v Buckman,[19] King CJ had to consider section 9(5) of the Offenders Probation Act 1913 the terms of which were, for present purposes, materially the same as those in section 58(3)(a) of the Sentencing Act.
[Section 9(5)] authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. 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. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
[18] Section 58(3) of the Criminal Law (Sentencing) Act 1988 (SA).
[19] (1988) 47 SASR 303 at 304.
There are authorities to the effect that, notwithstanding King CJ’s reference to the character or circumstances of the breach, there will be occasions where a defendant’s personal circumstances, of an exceptional or special nature, might be relevant to the question of “proper grounds”.[20] In this case, the Magistrate relied solely on the fact that she had already decided to suspend the prison sentence to be imposed for the breaching offence. This cannot amount to “proper grounds” on any understanding of section 58(3)(a).
[20] Johnson v SA Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995), Reynolds v R (Unreported, Court of Criminal Appeal of South Australia, 27 October 1995).
It was contended by the respondent, in effect, that her Honour’s remarks read as a whole indicated a suite of reasons not just for deciding against imposing an immediate prison term for the breaching offence but also for deciding to take no action on the bond. I have set out earlier her Honour’s reasons for finding good reason to suspend.
However, the finding of good reason to suspend a term of imprisonment to be imposed is not the same as the finding of proper grounds not to revoke the suspension of a prison term earlier imposed. Different tests are called for. Even assuming that some or all of the various considerations identified by her Honour, as set out earlier, were relevant to the question of proper grounds, they still would have to be considered in the context of the very powerful factors in favour of revocation that the breaching offence was identical with the offence that gave rise to the suspended prison sentence, that this was the fifth time the respondent had committed the offence of driving whilst disqualified and that he had received three suspended prison sentences in the past.
In this case, it was incumbent on the Magistrate to deal with the question of revocation first. By dealing with this question after first deciding to suspend the new prison term, the requirement of section 38(2) of the Sentencing Act was overlooked. Subsections 38(1) and (2)(a) are in these terms.
(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.
(2)A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced—
(a) to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; ...
Had the Magistrate first considered whether or not to activate the suspended sentence, and had her Honour on applying the correct test been unable to find proper grounds not to revoke, her Honour would have been obliged by section 38(2)(a) of the Sentencing Act to impose an immediate term of imprisonment for the breaching offence. By first deciding not to suspend the new sentence, the Magistrate improperly constrained her decision whether or not to revoke the suspension, even if proper grounds did not exist. Her Honour became unable to revoke the suspension. Had she done so, the new suspended sentence would have been rendered as not being according to law.
In a case such as the present, the only practical and common sense approach is to determine the breach of bond application first.
The appellant’s ground of appeal with respect to the bond appeal has been made out. If the Magistrate’s order in this respect were to be set aside and an order made that the respondent be resentenced for the breach of bond, it also would be necessary to allow the substantive appeal pending a determination, according to law, of whether or not the suspended sentence should be served.
In this respect, the substantive appeal should be allowed on the basis of appeal ground 2. The Magistrate erred in finding good reason to suspend the term of imprisonment for the substantive offence. In circumstances where her Honour failed to address the correct question before refraining from revoking the suspension of the earlier sentence, and given the terms of section 38(2)(a), it was not open to her Honour, as a matter of law, to find good reason to suspend.
Other matters
Ordinarily, it would be unnecessary to deal with the other grounds of the substantive appeal. However, the factual basis relevant to appeal ground 4 is of significance to the ultimate disposition of the appeal.
By ground 5, the appellant complains that, in deciding to suspend, the Magistrate placed too much weight on the effects of an immediate term of imprisonment on the respondent’s dependents. The effect of the sentence on an offender’s dependents is a consideration material to the exercise of the sentencing discretion, including as to whether or not to suspend a term of imprisonment.[21] However, hardship to the dependents of an offender is not generally to be taken into account other than in extreme or exceptional circumstances.[22] As was said in R v Hunter:[23]
The probable effect on dependents has been said to be a limited aspect of the power to exercise mercy and the hardship must be of such a serious character as to call for a merciful approach to sentencing. It must be a matter that goes beyond the hardship which inevitably results from a bread winner being sent to prison; there must be something that demands the exercise of mercy.
[21] Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n).
[22] See, for example, R v Wirth (1976) 14 SASR 291, R v Moffa (No 2) (1977) 16 SASR 155 and R v Hunter [2015] SASCFC 84 at [34].
[23] [2015] SASCFC 84 at [34] (Nicholson J, with whose reasons Gray and Peek JJ agreed) (citations omitted).
In any event, a contention that a judicial officer, when sentencing, has placed too much weight on a relevant consideration will not of itself suggest error. The approach of an appeal court when asked to interfere with a sentencing decision was reiterated by Doyle CJ in R v Jongewaard.[24]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
[25] As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[24] [2009] SASC 346 at [40].
As a general proposition, the assertion that a sentencing judge has placed too little or too much weight on one or more applicable sentencing considerations does not disclose an appellable error. It is not, as some of the cases describe it, a process error as required by House v The King,[25] although it may represent a particular of or a consideration relevant to a so called outcome error which, in this case, is the complaint that the sentence, by virtue of the decision to suspend, was manifestly inadequate.[26]
[25] [1936] HCA 40; (1936) 55 CLR 499.
[26] See, for example, R v Kreutzer [2013] SASCFC 130; (2013) 118 SASR 211 at [10], Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32, R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144, R v Horstmann [2010] SASC 103 at [36]-[38], Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.
As such, appeal ground 5 is really a particular of, and to be considered in conjunction with, appeal ground 1. However, for reasons I explain below, I am not in a position to determine whether or not the sentence imposed by the Magistrate for the substantive offence was manifestly inadequate (appeal ground 1).
By appeal ground 4, the appellant contends that the Magistrate erred in taking into account an irrelevant consideration, being the respondent’s belief that he could drive on the purported authority of an international driving permit or licence. Such a belief, if truly held, is not a defence to the commission of the offence. The offence is one of strict liability and no mens rea need be proved.[27] However, the holding of such a genuine belief may be a relevant mitigatory factor with respect to the question of penalty. The holding of such a genuine belief may be seen as reducing the moral culpability of the offender and may also be seen as relevant to the question of whether or not the offending conduct, in the case of a second or later offence, is to be characterised as contumacious. Ordinarily, before a term of imprisonment is to be imposed for this offence, a finding that the offender acted contumaciously ought to be made.[28]
[27] Davis v Bates (1986) 43 SASR 149, Smith v Manno [1961] SASR 17, Director of Public Prosecutions v Kailahi [2008] NSWSC 752; (2008) 191 A Crim R 145.
[28] See, generally, Police v Cadd (1997) 69 SASR 150.
Appeal ground 4, at least according to its terms, is not made out. However, during the hearing of the appeal there was significant argument concerning whether or not the finding by the Magistrate that the respondent had an honest belief that he was allowed to drive with an international driver’s licence was properly arrived at. The contention relied on by the Magistrate that the respondent, by reason of language difficulties and a cognitive deficit, may not have fully understood previous warnings was also canvassed during the hearing of the appeal.
In the event that a resentencing were to take place, all of the Magistrate’s findings of fact relevant to her decision to suspend would need to be revisited by the judicial officer concerned. Whilst it is unnecessary for me to form a final conclusion at this stage, I am strongly inclined to the view that at least two of the material findings by the Magistrate, given the information that was before her, were unsatisfactory. The manner by which these findings were arrived at by the Magistrate has placed this Court, on appeal, in a difficult position.
Her Honour made the following findings on the basis of which she exercised the discretion to suspend:[29]
(i)the respondent had an honest belief that he was allowed to drive with an international driver’s licence;
(ii)the respondent was a family man, “whose family would be adversely affected by any period of incarceration”;
(iii)the respondent employed 70 staff members who would also be affected in some way if he were to be incarcerated;
(iv)the respondent had “strong community ties with [his] family and [his] business”;
(v)the respondent had language difficulties (with English being his second language), a cognitive deficit and a possible intellectual disability. as a consequence of which there “may have been a prominent issue in the past in court for [him] not to be given the warnings in [his] own language”;
(vi)the respondent had longstanding issues involving alcohol abuse that needed to be addressed; and
(vii)the respondent had not been provided with supervision on any previous occasion when given a suspended sentence.
[29] Remarks on Penalty at [5]-[10].
Bearing in mind the relatively demanding sentencing approach to the offence of driving whilst disqualified established by the authorities,[30] it is quite unlikely that the factors in (ii), (iii), (iv), (vi) and (vii) above, in combination, would be sufficient to permit the suspension of any prison term imposed in the circumstances of this case or satisfy the requirement of proper grounds to refrain from revoking the suspension of the prison term the subject of the bond.
[30] Police v Cadd (1997) 69 SASR 150, Police v Nissen [2014] SASCFC 77; (2014) 120 SASR 50 and Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32.
However, and depending on the evidence that may be adduced in support, factors (i) and (v), either alone or in combination with the other factors, may offer more scope for a favourable decision in either of these respects to fall within the available sentencing discretion.
Having said this, it is my view that the findings in (i) and in (v) were not sufficiently supported by the material before the Magistrate and should not have been made on the basis of that material.
Honest belief that the respondent was entitled to drive
The only material available to the Magistrate in support of her conclusion that the respondent had an honest belief he was allowed to drive with an international driver’s licence was a submission from counsel and a notation in the police apprehension report that, when the respondent was confronted by police with the fact that he was the holder of a disqualified Provisional 1 Class licence, he said to the police words to the effect that, while he knew his South Australian driver’s licence was disqualified, he thought that he could still drive with his international driver’s licence.
However, this information before the Magistrate had to be considered in the context of the fact that this was the fifth occasion on which the accused had driven whilst disqualified and that on three prior occasions he had been to court and been informed, by way of the imposition of a suspended prison sentence, that he was not entitled to drive whilst disqualified. Of course, this latter consideration would have to be considered in the context of the respondent’s counsel’s submission before the Magistrate that the absence of an interpreter on prior court hearings may have resulted in the respondent not fully understanding what it meant to be disqualified and the risks he would run if he continued to drive.[31]
[31] Finding (v) above, Remarks on Penalty at [6].
Nevertheless, the Magistrate also had before her information, purportedly provided by the respondent to the psychologist. In her report provided to the Magistrate, the psychologist included the following.
[The respondent] conceded he had multiple prior convictions for driving offences. He said he had originally had his full licence but lost this due to “losing all my points, speeding, then back on P-plates, so I lose it again”. I asked [the respondent] why he decided to keep driving despite the legal sanctions and he replied it was for practical considerations and work needs, in that “my wife and I are on our own. We both have no family, not much support. I need to drive for business, for my family”. I questioned [the respondent] about his decision to obtain an International licence. He replied “Others did it”. [The respondent] said he had organised the licence himself on an overseas trip but when it arrived, he realised “It had my name on it!” [The respondent] said that as he reflected on his plan to use the International Licence, it further occurred to him that “When they pull me over... they can look at my car! And they know me anyway, it’s a small town! But I had to drive”.
In these circumstances, the finding that the respondent had an honest belief that he was allowed to drive was not, in my view, supported by the material before the Magistrate. However, the submission by counsel to that effect was not directly challenged by the prosecutor. The Magistrate when she began to sentence, intimated that she would not impose an immediate term of imprisonment and referred to the submission that the respondent did not know that he was not entitled to drive on the authority of his international driver’s licence. At this point, the prosecutor interrupted the Magistrate and sought an adjournment in order to make further enquiries aimed at, in effect, ascertaining whether or not there had been reliance on an international driver’s licence at any earlier hearing. The adjournment was granted. The prosecutor obtained the sentencing remarks for two of four previous driving convictions and ascertained that no mention had been made at any time of an international driver’s licence in either of the remarks.
When the sentencing submissions resumed on the second day of hearing a different police prosecutor attended and advised the court of the enquiries that had been made to the effect that there were no references to the respondent driving on an international driver’s licence in the available sentencing remarks for previous matters.
The issue of the respondent’s purported language and cognitive difficulties
The information available to the Magistrate in this respect was, again, a submission by counsel for the respondent to the effect that the respondent’s cognitive and language difficulties contributed to his lack of appreciation of previous court warnings in relation to driving whilst disqualified and also contributed to the respondent holding the belief that he could drive whilst holding an international driver’s licence. The only information available to the Magistrate in support of this submission was to be found in the psychological report.
The psychologist reported, after having interviewed the respondent, who was then 34, that whilst he had come from Laos to Australia when he was 13, he had received little formal education in Laos and had “disengaged” from his formal study of English as a second language when he ran away from home at 14. The psychologist undertook some tests in an effort to assess intellectual functioning but did so with reservations given the respondent’s limited educational history and poor history of studying English as a second language.
The respondent recorded an extremely low IQ score in the range of 53-63, which placed him at “the extreme floor of performance (0.3 percentile)”. The respondent’s verbal score was also in the “lower extreme” range, within the first percentile. The respondent also performed very poorly on the non-verbal scale. The psychologist concluded that his general intellectual abilities fell within the range of performance usually associated with a mild intellectual disability. She recommended that any diagnosis of cognitive disability would need to be formally tested with a full neuro-psychological assessment. The matters of potential significance raised by the psychologist included not just the above but also matters dealing with the respondent’s mental health issues, alcohol issues and personal circumstances.
On their own, the matters dealt with by the psychologist were not capable of answering the question whether or not the respondent, on any one of a number of previous occasions, had obtained a sufficient understanding that; first, he would commit an offence by driving whilst disqualified; second, the court had imposed a suspended prison sentence; and third, if he failed to comply with the law in the future and, in particular, if he drove again whilst disqualified, it was likely he would have to serve the prison sentence. Further, the Magistrate should also have taken into consideration that this was the fifth occasion that the respondent had come before the courts for this offence, that he had been in Australia for approximately 20 years and that he had the capacity to run an apparently successful labour hire type business with 70 employees. In addition, the Magistrate had before her the psychologist’s report where the respondent had purportedly advised the psychologist that his role in the business was to “do all the travelling and talking” and his partner took care of the book work. The labour hire business serviced onion farms in the south-east region of South Australia. The respondent’s work involved liaising with farm owners and arranging and managing housing and transport for the workers. In these circumstances, it should have been accepted by the Magistrate that the respondent had, at least, a working facility with English.
Again, in my view, the material that was before the Magistrate, when considered as a whole, did not support counsel’s submission to the effect there had been a lack of appreciation by the respondent of previous court warnings in relation to the offence of driving whilst disqualified. The material available to the Magistrate, if anything, indicated the contrary.
On the second occasion before the Magistrate, and after the respondent’s counsel’s submission to this effect had been made the new police prosecutor sought another adjournment in order to make enquiries in relation to the respondent’s ability to converse about and understand such matters. However, the Magistrate declined to adjourn the matter again and proceeded to sentence.
In R v Kreutzer,[32] Kourakis CJ summarised the proper approach to the finding of facts relevant to sentence and following a plea of guilty. His Honour said this.[33]
[32] [2013] SASCFC 130; (2013) 118 SASR 211 at [21]-[30] (Kourakis CJ). See also Gray and Blue JJ at [59]-[70].
[33] At [31]-[32].
More recently this question was considered by this Court in R v Bukvic.[34] White J summarised the position in this way:[35]
[34] R v Bukvic (2010) 107 SASR 405.
[35] R v Bukvic (2010) 107 SASR 405 at [37]-[38].
The judge’s consideration of the parties’ submissions concerning the appellant’s previous conduct required the application of two important sentencing principles. The first is that the prosecution has the onus of establishing any aggravating circumstance which it alleges and offenders have the onus of establishing any mitigatory matter which they allege. That does not mean that all matters put before a judge are to be characterised as favourable or adverse, or as aggravating or mitigatory. Some matters may be properly known to, and relied upon by, a sentencing judge which fit into neither category.
The second principle is that an offence is not to be regarded as aggravated by some conduct which would constitute a different offence for which the offender has been neither charged nor convicted. If the prosecution does wish to rely on the aggravating factor in those circumstances, it must bring a charge of the separate offence, and have the accused tried on that charge. In this way the second principle qualifies the operation of the first.
(Citations omitted.)
The decisions in Olbrich, Lobban, Storey, and Weininger support the following approach to fixing the factual matrix for sentencing purposes:
(1) Circumstances which operate adversely to a defendant on the one hand, or favourably on the other, should first be identified, bearing in mind that not all relevant circumstances can be so categorised. Even though there exists authoritative guidance about many commonly recurring circumstances, the categories are not closed.
(2) In the absence of agreement and acceptance by the court, the prosecution must formally prove circumstances of aggravation beyond reasonable doubt and the defendant must formally prove matters in mitigation on the balance of probabilities.
(3) If a circumstance of aggravation or mitigation is not proved by the party who carries the onus to do so, the converse is not thereby proved and the court must proceed to sentence not knowing whether the circumstance, or the converse, is true.
(4) A sentencing court may inform itself of matters which are neither circumstances of aggravation nor mitigation as it sees fit in accordance with historical sentencing practice and any applicable statutory discretions such as s 6 of the Sentencing Act.
Once the submissions concerning the honest belief issue and the cognitive impairment leading to lack of understanding issue were made, it was a matter for the Magistrate as to whether or not to accept or reject those submissions. However, as I have indicated, there was very limited support for these submissions when all of the circumstances before the Magistrate were taken into account. Had the Magistrate taken the view that she was not prepared to accept and sentence on the basis put from the bar table, her Honour, ordinarily as a matter of fairness, would need to have told counsel of this and invited counsel to take instructions on whether further evidence was to be adduced.
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.
I make the following orders.
1.Both appeals allowed.
2.The Magistrate’s sentencing orders with respect to the respondent’s offence of driving whilst disqualified in MCMTG-14-925 are set aside.
3.The Magistrate’s order excusing the breach of bond in MCMTG-14-950 is set aside.
4.Both matters are remitted to the Magistrates Court for resentencing before a different Magistrate.
4
23
1