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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Watson

Details

AGLC: Police v Watson [2010] SASC 159
Case: [2010] SASC 159
Decision Date: 28 May 2010

CaseChat Overview and Summary

The Police appeal against the sentence imposed on the defendant, who pleaded guilty to driving whilst disqualified. The defendant has a significant history of driving offences. The court, in sentencing the defendant to 80 hours of community service, did so without hearing submissions from the parties as to penalty. The police contend the defendant was denied procedural fairness and that the sentence imposed was manifestly inadequate. The court considers further evidence, including a report from a forensic psychologist, in determining the appropriate sentence. The court also considers the defendant's subsequent offence of driving whilst disqualified.

The primary legal issue before the court is whether the sentence imposed on the defendant was appropriate, given his significant history of driving offences, his breach of parole, and his prospects for rehabilitation. The court must also consider whether the defendant was denied procedural fairness by not having submissions heard as to penalty. The court's reasoning focuses on the defendant's prospects for rehabilitation and the need to balance the protection of the community with the defendant's rehabilitation. The court finds that the defendant's social phobia, limited intellectual capacity, and impulsivity contribute to his offending, and that treatment should focus on overcoming his alcohol abuse.

The court allows the appeal, setting aside the sentence imposed by the magistrate. The court sentences the defendant to a term of imprisonment, reduced for his plea of guilty, to be served cumulatively on the balance of the unexpired period of parole. The court fixes a non-parole period of four months. The court also convicts the defendant of driving with a concentration of alcohol in his blood which exceeded the prescribed concentration and disqualify him from holding or obtaining a driver’s licence until further order. The court emphasises that the defendant should not be licensed to drive until he has overcome his alcoholism.

The court's decision highlights the importance of considering the underlying causes of the defendant's offending and his prospects for rehabilitation when sentencing. The court also emphasises the need to balance the protection of the community with the defendant's rehabilitation. The court's consideration of further evidence, including the report from a forensic psychologist, assists in determining the appropriate sentence. The court's final orders reflect the need to address the defendant's alcohol abuse and to protect the community from his potential offending.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

GRAY J

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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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.