Police v Watson - [2010] SASC 159

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WATSON
[2010] SASC 159
Judgment of The Honourable Justice Gray
28 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
Police appeal against sentence - defendant and respondent pleaded guilty to offence of driving whilst disqualified - offence occurred against significant background of driving offending - defendant sentenced to perform 80 hours of community service - sentence imposed without hearing parties as to penalty - whether police denied procedural fairness - whether sentence imposed manifestly inadequate - consideration of further evidence - consideration of subsequent offence of driving whilst disqualified.
Held: appeal allowed - police denied procedural fairness resulting in Court reconsidering sentence afresh - sentence imposed by Magistrate set aside - one sentence of five months imprisonment imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) in respect of both offences - that sentence to be served cumulatively on the balance of the defendant's non-parole of seven months and 12 days - non-parole period of four months fixed - defendant disqualified from holding or obtaining a driver's licence until further order.
Road Traffic Act 1961 (SA); Motor Vehicles Act 1959 (SA) s 91(5); Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 31(2); Correctional Services Act 1982 (SA) s 73 and s 75, referred to.
R v Todd [1982] 2 NSWLR 517 ; R v Suckling (1983) 33 SASR 133; Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454; R v Lekaj (1997) 92 A Crim R 325; R v Johnstone [2007] VSCA 193; R v P (2003) 87 SASR 287; R v Miceli [1998] 4 VR 588; Power v The Queen (1974) 131 CLR 623; Vartzokas v Zanker (1989) 51 SASR 277; Knight v Police [2009] SASC 296 ; White v Police (2007) 252 LSJS 254; H v Police (2005) 91 SASR 329; Nichols v Police (2005) 91 SASR 232; R v Simpson (2004) 89 SASR 515; R v Kane [2003] SASC 237; R v Duncan (1983) 47 ALR 746, considered.

POLICE v WATSON
[2010] SASC 159
Magistrates Appeal
GRAY J.
Introduction

This is an appeal by the Police with respect to the sentence imposed by a Magistrate. While the appeal was part heard, the defendant and respondent, Aaron Graham Watson, offended again. By agreement of the parties those proceedings were referred to this Court.
These proceedings have raised complex sentencing considerations. The defendant has repeatedly offended against the provisions of the Road Traffic Act 1961 (SA) and the Motor Vehicles Act 1959 (SA). Otherwise, he has no relevant antecedents. Much of his prior offending occurred over a short period of time and suggested issues relating to immaturity and irresponsibility. The defendant’s repeat offending led to the imposition of ever increasing punishment, ultimately leading to the imposition of imprisonment. This sentencing approach has not been effective in preventing the defendant from repeat offending.
The proceedings before the Magistrate, now under appeal, were protracted. Information was sought in an effort to identify the underlying problems associated with the defendant’s behaviour. The need for further information also arose during the hearing of the proceedings before this Court causing further delay. The defendant now faces imprisonment for road traffic offending that in part occurred more than three years ago.
Offending of 26 October 2007
Background
The offence the subject of the within appeal took place against an extensive history of driving related offences. The defendant’s record includes more than 50 convictions for vehicle related offending, including driving under the influence, speeding, and of particular note, ten convictions for driving whilst disqualified.
The defendant’s repeated contraventions of the Road Traffic Act and Motor Vehicles Act have resulted in the imposition of escalating penalties, including fines, disqualifications from driving for increasing periods, suspended sentences and finally, imprisonment.
On 16 January 2007 the defendant was imprisoned for a period of 18 months for a number of offences including seven counts of driving whilst disqualified. A non-parole period of nine months was fixed. He was released on parole on 7 September 2007.
While on parole, the defendant again drove whilst disqualified. This offence occurred on 26 October 2007. On that occasion, the defendant was apprehended driving a motor vehicle whilst he was disqualified from holding or obtaining a driver’s licence. The police apprehension report disclosed that while on a uniform mobile patrol, the Police observed the defendant driving a white utility. The Police stopped the vehicle, arrested the defendant and conveyed him to the Whyalla Police Station where he was charged with driving whilst disqualified from holding or obtaining a licence contrary to section 91(5) of the Motor Vehicles Act. The defendant stated that he was aware that it was an offence to drive a motor vehicle whilst disqualified. There was no emergency on that day that required him to drive. No steps were taken to cancel the defendant’s parole. The charge came before the Magistrates Court in November 2007 and was then adjourned to 17 March 2008.
On 17 March 2008, the defendant pleaded guilty to the offence of driving whilst disqualified. However, sentencing was delayed until 26 May 2009. By that date, the Magistrate had received reports from the Department of Correctional Services outlining the progress of the defendant over the course of the 18 months subsequent to the defendant first appearing before the Magistrate in November 2007. The reports allowed the conclusion that the defendant had prospects of rehabilitation.
The defendant’s pattern of offending was first addressed in a pre-sentence report dated 14 May 2008. The pre-sentence report outlined a link between the defendant’s offending and alcohol abuse, a link that the defendant acknowledged:
The defendant did admit to his caseworker that alcohol was a contributing factor to his offending and that it caused problems with his partner. He also reported that he has made efforts to decrease his alcohol consumption and that in fact he has abstained since October 2007 two months prior to his imprisonment.
The author of the report concluded that despite the defendant’s determination to address his alcohol abuse, it was apparent that he still lacked insight into the impact his behaviour had on victims, was unable to think through consequences and tended to act impulsively.
However, a pre-sentence report of six months later, dated 17 November 2008, noted improvement. The report highlighted that the defendant acknowledged his behaviour with regard to his offence as inappropriate and demonstrated a willingness to engage in supervision. The report concluded:
Since [the defendant] commenced reporting to the Whyalla Community Correctional Centre he has overall complied with the condition that he report for supervision. [The defendant] has also established a rapport with his Community Corrections Officer… and has been willing to engage in discussions about the issues he is facing. He shows insight into offending behaviour and the inappropriateness of his actions at times. [The defendant] clearly indicated that he does not want to let his employer, his partner and family down again. In the past, [the defendant] has blamed others for his behaviour but now appears to [be] taking responsibility and also thinks about consequences of his action[s].
[The defendant] has stable accommodation, is involved in a long term relationship, has maintained ongoing employment, is held in high regard by his employer, has matured and greatly reduced his alcohol intake.
A further report of 22 May 2009 confirmed the defendant’s positive progress. The defendant had increased in confidence and maturity. The author of the report observed:
[The defendant] reported that he feels he has grown up a lot since his subject offence, has developed “some sense” and does not want to go “down the road” of prison again. He clearly indicated that before acting, he now thinks of the consequences of his behaviour and knows that taking the risk of driving without a licence is “not worth it” and would jeopardise everything he has been working towards. In discussions with the writer, [the defendant] expressed a strong sense of loyalty towards his employer who has been extremely supportive and forgiving towards him and he therefore does not wish to let him down again.
The defendant’s positive progress with respect to controlling his consumption of alcohol was also noted, as was his supportive family, employer and partner. This support enabled the defendant to manage, both domestically and in his employment, without the use of a motor vehicle. The report concluded that having regard to the fact that the defendant had not re-offended for more than 18 months, had matured and turned his life around, it would be appropriate for this matter to be finalised.
On 26 May 2009, the Magistrate recorded a conviction and took the unusual course of sentencing the defendant to perform 80 hours of community service. The Magistrate considered that no further penalty should be imposed having regard to the significant steps taken towards rehabilitation by the defendant as evidenced in the pre-sentence reports extracted above, and concluded:
In relation to this matter, having regard to the progress report on file, and all the things that have been put to me on earlier occasions, I am satisfied this is an unusual case, and where the appropriate penalty is not an immediate term of imprisonment, but eighty hours community service work instead of a prison sentence, given the response to supervision and the change in circumstances, indicating that you have finally grown up.
Your parole officer will still be putting in a breach of parole report. I have no doubt the Parole Board will be considering the contents of the progress report when it deals with the matters detailed in the breach report.
It is against this decision that the Police appeals, contending that there was a denial of procedural fairness in sentencing and that the penalty imposed was manifestly inadequate.
Denial of Procedural Fairness
It is convenient to first address the complaint that there was a denial of procedural fairness. On the appeal, the Police complained that they were not given the opportunity to present submissions with respect to penalty. The prosecutor, Constable Davison, deposed to what occurred before the Magistrate on 26 May 2009. The defendant appeared in person. He was unrepresented. The affidavit continues:
At the hearing on 26 May 2009 before [the Magistrate], the matter was called on and her Honour immediately delivered sentence. I was not given the opportunity to make submission on penalty nor did I inform the Court of the [defendant’s] prior offences. There was no time to seek an opportunity to do so.
The [defendant] did not make any submissions, nor was he invited by the Court to do so.
Her Honour gave reasons and sentenced the [defendant], recording a conviction and imposing a sentence of 80 hours community service.
Counsel appearing for the defendant on the appeal, accepted the accuracy of Constable Davison’s account and further accepted that there had been a material denial of procedural fairness.
The prosecutor was entitled to have the Court hear and consider the submissions to be put with respect to penalty. The delivery of sentence prior to the making of submissions was a material denial of procedural fairness. This leads to the conclusion that the Court should reconsider the matter afresh.
The Appeal
The Police submitted that having regard to the defendant’s antecedent history, and in particular, that the offence the subject of the within proceeding was committed in breach of parole in relation to earlier, like offending, the sentencing discretion of the Magistrate miscarried. According to the Police, given the circumstances of the offending and the attitude of the defendant in committing the offence, the Magistrate should have characterised the driving as contumacious. The Police contended that as a consequence the offending called for an immediate custodial sentence. Additionally, the Police submitted that in the circumstances it would be appropriate to impose a further period of licence disqualification until further order.
Counsel for the defendant submitted that at the time of sentencing, the Magistrate had all relevant materials before her in relation to the defendant’s criminal history and personal circumstances and prospects of rehabilitation. It was contended that it was doubtful that any submissions that could have been made by the Police would, in the unusual circumstances of the case, have led to the imposition of a different sentence.
In the alternative, if a sentencing error was established and the defendant was to be resentenced, counsel for the defendant contended that good reason existed to suspend any sentence of imprisonment. It was submitted that a suspended sentence, coupled with supervision, would allow for the defendant’s rehabilitation to continue and provide further incentive for the defendant not to relapse into his offending behaviour of the past.
Subsequent Events
Further Offending of 23 October 2009
During the hearing of the appeal proceeding, this Court was informed that the defendant was arrested on 23 October 2009 and charged with driving with a concentration of alcohol in his blood which exceeded the prescribed concentration, aggravated driving without due care, and driving whilst disqualified. The circumstance of aggravation was the blood alcohol reading. Pleas of guilty have been entered.
The circumstances of this offending involved the defendant, along with a group of friends, camping at an area approximately 20-40 km from Whyalla township. The group had been drinking. While intoxicated, the defendant drove a vehicle around the car park before colliding with another vehicle belonging to another group member. The police were called. The defendant admitted to the police that he had been driving in the car park campsite area. He was arrested, breathalysed and returned a reading of 0.128%. The Police accepted that the driving was confined to an unsealed public road.
It is to be observed that the offending of 23 October 2009, although occurring two years after the offending of October 2007, involved further conduct by the defendant in breach of the Road Traffic Act and Motor Vehicles Act. A review of the defendant’s antecedents allows the conclusion that this was repeat offending.
In the circumstances, it is appropriate when sentencing the defendant in respect of both the October 2007 and October 2009 driving whilst disqualified offending to utilise the Court’s powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and impose the one sentence.
Defendant’s Antecedents
The defendant is aged 30 years. At the time of the offending the subject of these reasons, the defendant was in his mid-to-late twenties.
Departmental records indicate an established pattern of offending by the defendant relating to Road Traffic Act and Motor Vehicle Act infringements and in particular repeated offences of driving whilst disqualified. The defendant has committed offences of this nature since 1996 when aged 16 years. Since that time he has amassed 51 convictions for road traffic and motor vehicle offences. Ten convictions were for the offence of driving while disqualified.
The defendant was born in Whyalla and raised in Cleve. He lived at home until the age of 18 years. He had a happy childhood and enjoyed a close and supportive relationship with his parents and siblings. He now has a supportive relationship with his partner. The defendant completed year ten and then two more years at TAFE. The defendant has been able to maintain employment and is currently employed as an apprentice mechanic.
Further Evidence
On the hearing of the appeal counsel for the police consented to the Court’s receiving further evidence. It was accepted that if the Court were to resentence in respect to the proceedings the subject of the appeal that the Court should do so having regard to current material. It was also accepted that the evidence was relevant to the sentencing of the defendant for the offending of 23 October 2009.
A report from a forensic psychologist, Richard Balfour, was provided to the Court. Mr Balfour formed the opinion that the defendant suffers from “social phobia”:
[The defendant] has low self-esteem. He is a socially introverted individual. He suffers from considerable social anxiety which leads to him becoming socially avoidant. His social anxiety overwhelms him and has interfered with his capacity to interact with others. …. He describes himself as a loner. He views himself as suffering from chronic shyness. … He generally experiences difficulty initiating conversations with others. He experiences distressing anxiety arousal symptoms such as … sweaty palms, feeling faint, light headedness, weakness, and heart palpitations. His presentation and personal history are consistent with him suffering from Social Phobia.
Mr Balfour outlined the characteristics of the psychological disorder “social phobia”:
Social phobia refers to a psychological disorder that is characterised by a marked and persistent fear of social or performance situations in which embarrassment may occur. Exposure to the social or performance situation almost invariably provokes an immediate anxiety response. …
…
Epidemiological and community-based studies have reported a lifetime prevalence of social phobia ranging from 3% to 13%. The onset of social phobia may abruptly follow a stressful or humiliating experience, or it may be insidious. The course of social phobia is often continuous. Duration is frequently lifelong, although the disorder may attenuate in severity or remit during adulthood. The severity of impairment may fluctuate with life stressors and demands.
Mr Balfour highlighted the link between the defendant’s social phobia and his offending:
[The defendant’s] Social Phobia has led to him developing binge alcoholism. His alcoholism represents a form of self-medicating behaviour. He uses the acute dishinhibitory effects of alcohol to reduce his social anxiety so he can socialise with others.
…
[The defendant’s] offending behaviour is caused by his Social Phobia which results in him abusing alcohol to cope which also lowers his inhibitions to illegally drive.
Mr Balfour offered the following prognosis:
He is not in denial regarding his binge alcoholism and associated risk of reoffending. He has taken significant steps to curbing his alcohol abuse. He recognised he had an alcohol problem two to three years ago. He has curtailed his alcohol consumption. He had not consumed alcohol for 18 months prior to committing the current offences. He has not consumed alcohol since he committed the current offences on the 23/10/2009. He has maintained his alcohol abstinence despite becoming more socially withdrawn and avoidant. His long-term goal is to remain totally abstinent from using alcohol.
…
He has an excellent work ethic and good employment history. He has long-term employment with Prosser Motors. He is on his way to becoming a qualified car mechanic. He is worried if he is given a lengthy custodial sentence for the current offences he will lose his employment and not achieve his goal to become a qualified car mechanic. He does not want to reoffend and further jeopardise his career.
He has demonstrated he is capable of being socially responsible in his life. For example, he was 19 years old when he worked as a volunteer CFS worker for two years. He has been willing to take on the responsibility of financially providing for his defacto and three stepdaughters. He is displaying evidence of evolving social maturity.

A report from Carol Cayley, a clinical psychologist, assessed the defendant’s intellectual functioning. Ms Cayley noted that the defendant’s overall intelligence was assessed as falling towards the upper limit of the “borderline” range and around the 7^th percentile when compared with the general population. There was a significant difference between the defendant’s verbal and non-verbal skills, with the latter being comparatively better developed. His verbal skills are poor and suggested the possibility of a language disorder. The defendant’s poor verbal skills are likely to be a contributing factor to his symptoms of social anxiety. The defendant’s literacy skills were assessed as about the equivalent to the average child in the middle years of primary school.
A psychiatric report of Dr Raeside assessed the defendant’s mental health, and the relationship between his mental health problems, alcohol use and offending behaviour.
Dr Raeside agreed that the defendant has symptoms of social phobia, but significantly, considered that the defendant’s alcohol abuse was not necessarily an attempt to self-medicate that condition:
I…would respectfully disagree with Mr Balfour’s comment that [the defendant’s] offending behaviour is “caused by his social phobia which results in him abusing alcohol to cope which also lowers his inhibitions to illegally drive”. I would agree that the alcohol use is associated with his recurrent offending behaviour but, for reasons already expressed, I do not think there is a strong direct association between his social anxiety and his alcohol use.
Ultimately, Dr Raeside considered that although alcohol abuse has caused various problems for the defendant, including his driving offending, that offending was not solely as a consequence of the alcohol abuse. Dr Raeside noted that the defendant’s disregard for the law had been prominent in the past. He further observed that the defendant’s most recent offending was consistent with this past demonstrated disregard for the law.
Dr Raeside did not consider that the defendant requires any specific psychiatric or psychological treatment for his social anxiety. Treatment should focus on overcoming the defendant’s alcohol abuse. Relapse prevention techniques should assist the defendant to deal with stress and anxiety. Dr Raeside noted that periods of incarceration did not appear to have altered the defendant’s behaviour. He considered the defendant’s supportive employer and partner as the major factors in support of rehabilitation. Dr Raeside indicated that if either of these should breakdown, the defendant would be at significant risk of relapsing into further alcohol abuse with its associated problems.
Consideration of the Appeal
With the benefit of these materials before the Court, counsel for the defendant acknowledged that a term of imprisonment was appropriate but maintained that in the unusual circumstances of the case an immediate custodial sentence should not be imposed. It was contended that the passage of time and the demonstrable progress made over that time in conjunction with the evaluation of the defendant’s psychiatric and intellectual functioning, warranted such an approach, despite the defendant having breached his parole on the last occasion.
The Police contended that an immediate custodial sentence should be imposed both in relation to the matter under appeal and the offending of 23 October 2009. It was said that the existing balance of the non-parole period should be served. Counsel emphasised the defendant’s poor record and the fact that the offending the subject of this appeal was aggravated as it was committed in breach of parole.
The defendant’s history of offending against the Motor Vehicles Act and the Road Traffic Act is appalling. Although the various reports demonstrate progress in rehabilitation, the defendant has continued to drink and drive both with disregard of the law and disregard for the safety of the public. Irrespective of the underlying reasons for this offending, the defendant’s history suggests that there is little alternative to imposing a term of imprisonment. However, it is appropriate when sentencing to have regard to the defendant’s progress and prospects of rehabilitation as outlined by the reports before the Court.
It would appear that the primary causes of the defendant’s offending and in particular his long-term record are immaturity and alcohol abuse. He has already spent time in custody. He is still a young man, and given appropriate treatment to address his alcoholism and support from his employer and partner, he has excellent prospects for rehabilitation.
As earlier mentioned, on 16 January 2007, the defendant had been sentenced for a number of offences including seven counts of driving whilst disqualified. He was sentenced to 18 months imprisonment. A non-parole period of nine months was fixed. He was released on parole on 7 September 2007 and then breached the terms of his parole within two months of his release. No action was taken with respect to his breach of parole. He served out the balance of his parole without any further breach or other incident.
Subsequent to October 2007, the defendant did not offend again for about two years. During this two year period, he maintained both steady employment at Whyalla and a stable domestic relationship. Both of these continue. The defendant’s partner and his wider family continue to provide support. His employer attested to the defendant’s excellent employment record. He works in a motor mechanic business without the need to have a driver’s licence. His standard of work is such that he is entrusted to work on Police vehicles.
The October 2009 offending, given the defendant’s more recent history is a most unfortunate relapse. It was expected that he was on the path to complete rehabilitation. However, that proved not to be the case. The later offending occurred as a consequence of the defendant’s immaturity, social difficulties, low intellect and abuse of alcohol.
The submissions of counsel for the defendant were ultimately a plea for mercy. It was accepted that the defendant’s antecedents were such that on any conventional consideration, an immediate custodial term could be expected to be imposed. However it was said that this case was exceptional and that the defendant should be given another chance and that any further immediate custodial term be avoided. It was emphasised that his progress on the path of rehabilitation would be substantially undermined in the event of a custodial term. On the hearing of the appeal a letter from the defendant’s employer, Gordon Prosser Motors, was tendered. That letter substantiated the claimed impact that an imposition of a custodial term would likely have on the defendant:
[The defendant] is a valued member of our Company and we would be willing to continue his employment with us over the coming year. If [the defendant] is unable to continue working for us during the next few months, we will be unable to hold his job open as the demands of the business will require us to employ someone else in his place.
We would like to continue our association with [the defendant] as an employee with our Company if at all possible.
Counsel for the Police submitted that anything short of an immediate custodial term would not reflect the seriousness of the defendant’s repeat offending. It was said that the defendant had been given every reasonable chance, and that the law would be brought into disrepute if undue leniency or inappropriate mercy were extended to the defendant.
In my view, the defendant’s offending, given his antecedents does call for an immediate term of imprisonment. However, it would be regrettable if the substantial steps the defendant has taken towards rehabilitation were materially undermined. It is in the interests of the community that the defendant’s offending cease. His circumstances have changed radically.
The offending of October 2009 can be characterised as a relapse on the path of rehabilitation. The circumstances of that relapse are of relevance. The October 2009 offending can be characterised as on the less serious end of the scale of that offending. The driving took place at a campsite on an unsealed road. Although this offending was serious, more serious incursions into offending can be readily envisioned. It is significant that the defendant voluntarily admitted to the police that he had been driving.
It is to be emphasised that more than two years have passed between the offending of October 2007 and the sentencing of the defendant following the hearing of the appeal. This delay has relevance when considering the appropriate sentence for the defendant.
In Todd[1] Street CJ made the following observations in relation to the relevance of delay:
Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[1] R v Todd [1982] 2 NSWLR 517 at 519-520 (Street CJ, with whom Moffitt P and Nader CJ at CL agreed); these remarks have been approved on a number of occasions. See eg R v Suckling (1983) 33 SASR 133 at 136 (Legoe J, with whom Wells & White JJ agreed); Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454 at 459; see also R v Lekaj (1997) 92 A Crim R 325 at 327 (Matheson J).
These remarks were adopted by Debelle J in Kernich v Director of Public Prosecutions (Cth)[2] where his Honour further observed:
Those observations were made in circumstances different from these, but they are, nevertheless, relevant. The observations apply with even greater force when there has been an exceptional delay of this kind, and in that period of delay the offender has taken substantial and successful steps towards his own rehabilitation.
The remarks of Street CJ were described by the Victorian Court of Appeal in Johnstone,[3] as a “powerful statement of principle”.
[2] Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454 at 459.
[3] R v Johnstone [2007] VSCA 193 at [15].
Similar observations were also made in P[4] where Perry J adopted the following remarks of Tadgell JA in Miceli:[5]
There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. The remarks of Sir Laurence Street in R v Todd have not infrequently been adopted by this Court upon the point. Again, the remarks to a similar effect of the Court of Criminal Appeal in R v Kane have not infrequently been applied. Most particularly is the matter of delay between the commission of an offence and the imposition of a sentence ... to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life.
This Court has applied this principle on various occasions, including in R v Liang. Much the same approach has been adopted in other courts elsewhere in this country: see, for example, Duncan v The Queen, R v Winchester and Kernich v Director of Public Prosecutions (Cth).
[4] R v P (2003) 87 SASR 287 at [31].
[5] R v Miceli [1998] 4 VR 588 (Tadgell JA, with whom Winneke P and Chalres JA agreed).
Although long delay does not necessarily warrant leniency in all cases, in the present proceeding, the fact of delay and the rehabilitation achieved during that period are relevant when assessing the appropriate sentence and non-parole period to be imposed.
As a consequence of delay in the within proceeding, the defendant has for a lengthy period faced the constant possibility of imprisonment. Although some delay occurred as a consequence of the defendant’s actions, the passage of time is a significant factor to be taken into account when sentencing. As observed in Todd, delay results in the offending for which the defendant is to be sentenced being “stale” and calls for a measure of understanding and flexibility of approach. Fairness to the defendant requires his current circumstances and ongoing rehabilitation to play a role in the determination of an appropriate sentence. The effect on the defendant of existing in a state of “uncertain suspense” should not be underemphasised.
As previously noted, the offending of October 2007 was committed while the defendant was on parole. In that respect, section 75 of the Correctional Services Act 1982 (SA) provides:
(1) Where—
(a)a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended;
…
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.
(1a) Subsection (1) applies notwithstanding that, at the time of conviction of the person or of the revocation of the suspended sentence, the parole may have expired or been discharged.
(2)Where a person referred to in subsection (1) is, at the time of conviction or revocation of the suspended sentence, still on parole, the parole is, by virtue of this subsection, cancelled.
In my view, the defendant’s offending within two months of his release on parole for like offending conduct, called for the imposition of an immediate term of imprisonment. The imposition of an immediate term of imprisonment will trigger the operation of section 75 which mandates that the defendant is to serve the balance of the unexpired period of parole, a period of 7 months and 12 days. The sentence to be imposed for the breaching offence is to be cumulative on that period. In that respect, section 31(2) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
Where a sentence of imprisonment is imposed for an offence committed by the defendant—
(a) during a period of release on parole or conditional release; or
(b)while serving a period of imprisonment pursuant to an order of the Parole Board for breach of parole conditions,
the sentence will (except where one of the sentences to which the defendant is subject is life imprisonment) be cumulative upon the sentence, or sentences, in respect of which the defendant was on parole.
Notwithstanding the deeming provisions of the Correctional Services Act, the fact remains that in the present proceeding the defendant served out his period of parole and did so in apparent compliance with the terms of parole. It is settled that when a defendant is on parole, the time spent on parole represents time spent in custody; that is, the sentence of imprisonment is being worked through. As was observed in Power:[6]
…nothing is to be gained by regarding the power of the paroling authority to release from prison as converting the full sentence into an indeterminate sentence. To interfere with that sentence is not within the authority of the paroling authority. Its authority is to release the prisoner conditionally from confinement in accordance with the sentence imposed upon him. The sentence stands and during its term the prisoner is simply released upon conditional parole. Indeed, we think it is a misnomer to refer to a minimum sentence and a maximum sentence. In truth there is but one sentence, that imposed by the trial Judge, which cannot be altered by the paroling authority.
The defendant’s compliance with his parole conditions following the October 2007 offending is a relevant consideration when assessing the length of the total term to be served and the length of any further non-parole period.
[6] Power v The Queen (1974) 131 CLR 623.
The relevance of rehabilitation in sentencing was expressed in Vartzokas v Zanker[7] in the following terms:
Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person.
[7] Vartzokas v Zanker (1989) 51 SASR 277 at 279. The observations of King CJ have been oft referred to and applied. See eg Knight v Police [2009] SASC 296 at [31] (Sulan J); White v Police (2007) 252 LSJS 254 at [17]-[18] (Gray J); H v Police (2005) 91 SASR 329 at [49] (Sulan J); Nichols v Police (2005) 91 SASR 232 at [50] (Gray J); R v Simpson (2004) 89 SASR 515 at [64] (Gray J, with whom Perry & Nyland JJ agreed).
In the present proceedings, fashioning a sentence aimed at the rehabilitation of the defendant is consistent with the protection of the community, as evidenced by the ongoing progress of the defendant. It is relevant to note that in the circumstances of the defendant, where there has been substantial rehabilitation of the defendant, that rehabilitation should be allowed to be completed if possible.[8] As was noted by Debelle J in Kane:[9] “It is all too rare an event for a person who has offended in this way to have demonstrated actual rehabilitation as opposed to prospects of rehabilitation”.
[8] R v Duncan (1983) 47 ALR 746.
[9] R v Kane [2003] SASC 237 at [17].
Conclusion
Having regard to the body of evidence now before the Court as to the defendant’s social phobia, limited intellectual capacity, impulsivity, his genuine steps towards rehabilitation and his prospects for ongoing rehabilitation, there is every reason to sentence the defendant so as to allow his rehabilitation to progress. A short period in custody should allow him to continue his employment and to maintain his family relationships. The matters as outlined warrant a merciful approach.
The appeal is allowed. The sentence imposed by the Magistrate is set aside. The defendant is to be sentenced in respect of the offending of October 2007 to a term of imprisonment. The defendant is also to be sentenced to a term of imprisonment with respect to the October 2009 driving whilst disqualified offending. Pursuant to section 18A of the Sentencing Act I impose the one sentence of five months imprisonment. That sentence is comprised of four months reduced from six on account of the defendant’s plea of guilty, for the 2007 offending, and one month reduced from six weeks on account of the defendant’s plea, for the 2009 offending. The sentence of five months imprisonment is to be served cumulatively on the balance of the unexpired period of parole of 7 months and 12 days that the defendant is obliged to serve by reason of the provisions of section 75 of the Correctional Services Act. In regard to the total sentence to be served of 12 months and 12 days, I fix a non-parole period of four months.

I convict the defendant on the charge of driving with a concentration of alcohol in his blood which exceeded the prescribed concentration and disqualify the defendant from holding or obtaining a driver’s licence until further order. He should not be licensed to drive until he has overcome his alcoholism.