R, J v Police - [2006] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
R, J v POLICE
[2006] SASC 153
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Layton)
25 May 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED
Appeal against sentence - appellant sentenced for two offences of driving whilst disqualified - appellant under 18 when he committed the first of the two offences - sentenced by a Judge of the Youth Court - Judge acting as a magistrate when sentencing in respect of the adult offence - for the youth offence appellant sentenced to driver's licence disqualification for three months and $300 fine - for the adult offence appellant sentenced to three months imprisonment, to be suspended, and a further driver's licence disqualification of eight months to be concurrent with the other disqualification - appeals against each of the sentences heard together by the Full Court - whether the sentences imposed were manisfestly excessive - Held: sentences manifestly excessive - appeal allowed - appellant re-sentenced - driver's licence disqualification for one month and fine of $300 imposed on the youth offence - sentence of imprisonment for one month, to be suspended, imposed on the adult offence.
Magistrates Act 1983 s 22; Criminal Law (Sentencing) Act 1988 s 11, referred to.
Crafter v Police [2001] SASC 336; Police v Cadd (1997) 69 SASR 150, discussed.
Sadler v Crossman (1988) 47 SASR 331; Khammash v Police (1999) 29 MVR 561; Peart v Police (2003) 229 LSJS 194; Woodward v Police (2000) 210 LSJS 16; Ironside v Police (1999) 204 LSJS 186; R v Manunta (1989) 54 SASR 17; R v Doecke (1999) 205 LSJS 304; Elliott v Harris (No 2) (1976) 13 SASR 516; R v Morse (1979) 23 SASR 98, considered.

R, J v POLICE
[2006] SASC 153
Full Court: Sulan, Anderson and Layton JJ

SULAN J: I would allow the appeal. I agree with the reasons of Layton J. I agree with the orders Layton J proposes.
ANDERSON J I agree with the reasons of Layton J. I agree with the orders Layton J proposes. I would also allow the appeal
LAYTON J: This is an appeal against sentence imposed in the Youth Court. The appellant pleaded guilty to three offences. The first offence was committed whilst he was a youth. The second and third were committed two weeks later when the appellant was 18 years old. The learned sentencing judge, at the request of defence counsel, exercised his power as a District Court judge to sit as a magistrate,[1] and sentenced the appellant for all offences in the Youth Court.
[1] Magistrates Act 1983 s 22.
Facts
Whilst the appellant was on his provisional licence he accrued sufficient demerit points to result in the disqualification of his provisional licence from 17 May 2005 until 16 November 2005.
On 27 May 2005 the appellant was detected driving a motor vehicle on Aldinga Beach Road, Aldinga Beach. He told police on that occasion that he knew that his licence had been disqualified, but that he had needed to collect his brother from a skate park at Symonds Reserve, Aldinga Beach. He was charged with driving a motor vehicle while disqualified.
Just over two weeks later, on 14 June 2005 the appellant was again detected driving a motor vehicle. On that occasion the police attended at the scene of an accident and spoke to the appellant who admitted that he was the driver of the car. His car had collided with traffic lights on the corner of Beach Road and Roy Terrace, Christies Beach. It was discovered that he was disqualified from driving after police checks were performed. He stated to police that he was just driving around the Beach Road when he had taken his eyes from the road for a couple of seconds causing his car to collide with the traffic lights. In relation to the accident the appellant was charged with driving a motor vehicle while disqualified, and driving without due care.
The sentencing judge ordered that the appellant be convicted on all counts. In relation to the offence committed as a youth (“the youth offence”), the appellant was fined $300.00 and his driver’s licence was disqualified for a period of three months. In relation to the subsequent driving disqualified offence committed as an adult (“the adult offence”), the appellant was sentenced to three months imprisonment, suspended upon the appellant entering into a bond to be of good behaviour for a period of 12 months. It was further ordered that the appellant’s driver’s licence be suspended for a period of eight months, to run concurrently with the licence disqualification of three months imposed in relation to the youth offence. In relation to the driving without due care the Youth Court endorsement indicates that the appellant was convicted without penalty.
The appeal
The appellant appeals against both sentences on the grounds that the sentencing judge erred in imposing a licence disqualification, in that he failed to give sufficient weight to the appellant’s personal circumstances, and that the sentence was manifestly excessive.
The appellant’s submissions
The appellant’s submissions dealt with three main issues, first, the length of the licence disqualification in relation to both offences; second, the imposition of a sentence of imprisonment in relation to the adult offence; and third, the length of that period of imprisonment. In relation to each of these points it was submitted that the sentences were manifestly excessive having regard to the personal circumstances of the appellant.
Imposition of a period of licence disqualification
The appellant argues that the sentencing judge erred in disqualifying the appellant from driving for three months in relation to the youth offence, and for eight months in relation to the adult offence, even taking into account that the periods were concurrent.
In relation to the adult offence, the appellant also complains that the imposition of the eight months disqualification in addition to the period of imprisonment, albeit that the latter was suspended, amounts to a double penalty. The appellant relies in particular on the cases of Sadler v Crossman,[2] Khammash v Police[3] and Peart v Police.[4]
[2] (1988) 47 SASR 331.
[3] (1999) 29 MVR 561.
[4] (2003) 229 LSJS 194.
On the youth offence, the appellant argues by analogy that the combination of the fine and the disqualification, in the circumstances, was punitive, amounted to a double penalty and was manifestly excessive. It was noted by the appellant that it had not been argued before the sentencing judge that the driving involved in the youth offence was contumacious.
A sentence of imprisonment
The appellant submitted that the judge failed to properly take into account alternative penalties to imprisonment. In his sentencing remarks, the judge said in relation to imprisonment, that:
knowing you had just been pulled over for driving disqualified, you deliberately went out and drove again. In these circumstances the law basically requires me to impose imprisonment, which I will do.
Counsel for the appellant conceded that the episode of driving whilst disqualified in relation to the adult offence was contumacious because it occurred only a little over two weeks after the previous offence and the appellant had no excuse for so driving.
The appellant argues that even if the driving were contumacious, imprisonment ought only to be imposed if no other penalty is appropriate. The appellant relies on the cases of Crafter v Police[5] and Woodward v Police[6] to support that submission.
[5] [2001] SASC 336.
[6] (2000) 210 LSJS 16.
The appellant submits that the sentencing judge made no mention of, and appears not to have considered, any sentence other than imprisonment and that this is an error, as the proper sentencing process requires the exclusion of all other sentences prior to the consideration of imprisonment.[7]
[7] Criminal Law (Sentencing) Act 1988 s 11.
Imprisonment for three months
The appellant submitted that a period of imprisonment for three months for the adult offence amounted to half of the maximum penalty of six months, and was manifestly excessive of itself, even without the additional penalty of disqualification. This submission is also made on the basis of the appellant’s youth and other mitigating personal circumstances; the fact that the initial licence disqualification resulted from the accumulation of demerit points; that he had never before received a sentence of imprisonment and that ‘a suspended sentence is a sentence of imprisonment with all the consequences such a sentence involves on the defendant’s record and his future’.[8]
[8] R v Doecke (1999) 205 LSJS 304, 307 quoting Bray CJ in Elliott v Harris (No 2) (1976) 13 SASR 516, 527.
The appellant’s personal circumstances
The appellant argues that the sentencing judge ought to have given more weight to his personal circumstances set out hereafter, which were mitigating factors in relation to sentencing. In particular it was emphasised that the appellant is 18 years old and at the time of sentencing was employed as a labourer for a flooring company. He had held that position for just over a year. The position required he hold a driver’s licence in order to carry out work at sites all over Adelaide.
The respondent’s submissions
Counsel for the respondent, Mr Nicholas, submitted that the sequence of events indicated a strong antipathy on the part of the appellant toward authority, and that in relation to the adult driving disqualified offence, the appellant’s behaviour constituted something outside the usual, even for driving that was contumacious. Counsel emphasised that the appellant drove disqualified just 10 days after the initial period of licence disqualification commenced. He turned 18 two days later, and drove again just 16 days after that.
In relation to the youth offence, the respondent submitted that the sentence of six months disqualification and a fine of $300 was not manifestly excessive in light of the maximum penalties that were available.[9] The maximum penalty was imprisonment for six months, and if a fine was to be imposed, the maximum was $2500. Counsel submitted that although the judge did not find that this episode of driving was contumacious, it was deliberate, there being no circumstances suggesting emergency or duress. Also, counsel for the respondent drew attention to the remarks of the sentencing judge who stated that for this offence he imposed ‘punishment appropriate for a child’.
[9] See R v Morse (1979) 23 SASR 98, 99.
Counsel for the respondent, relied on Police v Cadd,[10] and in particular the statement that the punishment should be imprisonment ‘in the ordinary case of contumacious offending by a first offender’.[11]
[10] (1997) 69 SASR 150.
[11] (1997) 69 SASR 150, 171.
In relation to the statement by the sentencing judge that ‘the law basically requires me to impose imprisonment’, counsel for the respondent submitted that the word ‘basically’ qualified what was otherwise a mandatory statement. Mr Nicholas properly conceded that if this statement were taken to imply that the judge felt that he must sentence the appellant to imprisonment, this would constitute an error. However, he submitted that in the circumstances this would not be an error which would justify this Court’s interference. Mr Nicholas submitted that the period of three months imprisonment, although at the high end, was within the range of proper penalties.
Mr Nicholas also submitted that the imposition of an eight month period of disqualification, in addition to the suspended sentence of imprisonment, was entirely appropriate and within the sentencing discretion. In support of that proposition Mr Nicholas submitted that although the suspended sentence of imprisonment was real punishment, it is not a form of punishment which has immediate consequences for the offender. Further, the contempt which is inherent in the offence of driving whilst disqualified ought generally to be followed, it was submitted, by a punishment which has immediate consequences.
In response to the appellant’s submission that the imposition of a period of disqualification in addition to the sentence of imprisonment constituted an error, the respondent argued that in Peart v Police[12] Perry J did not set down any rule or principle that contumacious driving could not warrant a sentence of imprisonment as well as disqualification. In this case a senior judge of the Youth Court sentenced the appellant, and it was submitted that the Court should not lightly depart from a penalty imposed by an experienced judge in a specialist court.
[12] (2003) 229 LSJS 194.
The appellant’s personal circumstances
In considering the submissions of counsel for both parties, I turn first to the appellant’s personal circumstances.
The appellant lives with his mother and father. He is one of eight children, of whom seven remain at home. The appellant’s 20-year-old sister suffers a severe intellectual disability and their father suffers a debilitating back injury and is in receipt of a disability pension. As was emphasised by the appellant before the sentencing judge, the family of the appellant, in particular his mother as the other driver in the family, will suffer undue hardship in transporting the appellant to and from work as a consequence of a disqualification of licence.
Apart from the youth offence, which was dealt with at the same time, the appellant has no prior convictions for driving whilst disqualified. He has one prior appearance in the Youth Court for theft and hindering police, for which he was given 16 hours of community work.
The youth offence
In relation to the first episode of driving whilst disqualified, the appellant was still a youth. His licence was disqualified because of the accumulation of demerit points and the driving on this occasion occurred in circumstances which appear to have arisen because of him being one of the two drivers in the family. It was not done for his benefit but for his young brother who needed to be picked up from a park in Aldinga Beach when the appellant and his family lived at Sellicks Beach.
In this case, I am not persuaded that the mere fact of there being a fine imposed in addition to a period of disqualification amounted to a double penalty, as was submitted by counsel for the appellant. However, I am of the view that the disqualification for a period of three months was in all of the circumstances excessive. This was the appellant’s first occasion of driving whilst disqualified, and he was being sentenced as a youth. The disqualification would have a significant impact on both the appellant and his family given his youth and the family’s limited income. Prior to the disqualification being stayed by order of Duggan J,[13] the appellant had already served a period of one month’s disqualification, and it is my view that this, as well as the fine of $300.00 is sufficient penalty, having regard to his age and circumstances, for that offence.
[13] On 6 December 2005 the appeal came before Duggan J who referred the appeal from the sentencing judge sitting as a magistrate (in relation to the adult offence) to the Full Court. He also ordered that the appellant’s driver’s licence disqualification be stayed pending the resolution of the appeal to the Full Court.
The adult offence
In relation to the adult offence, I am concerned by the comment of the sentencing judge that ‘the law basically requires me to impose imprisonment’. The use of the word “requires” coupled with the absence of any indication in his sentencing remarks that he considered any alternative form of penalty other than imprisonment, strongly suggests that the judge felt that he had no alternative other than to impose imprisonment. That is clearly incorrect and I do not accept that his remark was qualified in the way that Mr Nicholas suggests by the word “basically”.
In Police v Cadd[14] each member of the majority of the Court accepted that for the offence of driving whilst disqualified the punishment should be imprisonment:
in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment…[15]
[14] (1997) 69 SASR 150.
[15] (1997) 69 SASR 150, 171.
Despite what was said about the appropriate sentencing standard in that case, Mullighan J in the case of Crafter v Police[16] makes it clear that a sentence of imprisonment is not required to be served in every case of driving whilst disqualified where the driving is found to be “contumacious”. In that case Mullighan J says that:
It may be seen that contumacious offending does not require a sentence of imprisonment to be served in every case…
What sentence for the offence of driving disqualified should be imposed? The correct approach is to consider all sentencing options and only to impose imprisonment if no other option will suffice: R v O’Keefe [1969] 2 QB 29 and Wood v Samuels (1974) 8 SASR 465 at 469. Given the personal circumstances of the appellant, his age and employment, and that the offence of driving disqualified was the first offence committed by him for which a sentence of imprisonment could be imposed, I do not think that imprisonment was the only sentence justified in the circumstances, even though the offending was contumacious. [17]
[16] [2001] SASC 336.
[17] [2001] SASC 336, [14], [16].
In Crafter, Mullighan J was considering the sentencing standard for offences of driving whilst disqualified. In that case, the defendant, who was aged 18 at the time of the offences, pleaded guilty to one count of driving whilst disqualified and one count of damaging a road otherwise than by the reasonable use thereof. The relevant disqualification had come about as a result of convictions for driving a motor vehicle with prescribed concentration alcohol, disobeying the conditions of a provisional licence and exceeding the speed limit by 45 kilometres per hour or more. The driving circumstances were therefore far more contumacious than in this case and the appeal was allowed.
In this case the sentencing judge failed to consider any other form of penalty than imprisonment, which is contrary to the requirements of s 11 of the Criminal Law (Sentencing) Act 1988 (‘the Sentencing Act’).
Section 11 of the Sentencing Act states that:
(1)     A sentence of imprisonment may only be imposed—
(a)     if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)     if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).
(2)This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
The adult offence had to be treated as a first offence for the purposes of this section, and also for the purposes of determining the appropriate penalty. In relation to the question of whether ‘any other sentence would have been inappropriate having regard to the gravity or circumstances of the offence’, Duggan J in Ironside v Police[18] said that:
I have some doubt as to whether the learned magistrate considered this provision and decided that any other sentence would be inappropriate. Under a similar provision in the Crimes Act (Cwth) 1914 s17A the Court is required to state its reasons for deciding that no other sentence is appropriate. There is no such provision under South Australian legislation, but in a case such as the present I think there are good reasons for adopting such a course as a matter of practice. [19]
[18] (1999) 204 LSJS 186.
[19] (1999) 204 LSJS 186, 188.

In R v Manunta[20] King CJ said, in relation to s 11(1) that:
the Court in determining…whether any sentence other than imprisonment would be inappropriate having regard to the gravity or the circumstances of the offence, is required, in my opinion, to give the usual weight to the traditional purposes of sentencing, namely the observation of a just proportion between the seriousness of the offending and the punishment, general deterrence, personal deterrence and rehabilitation.[21]
[20] (1989) 54 SASR 17.
[21] (1989) 54 SASR 17, 24.
For these reasons I consider that the sentencing judge erred in his approach in imposing a sentence of imprisonment.
In addition, I also consider that the penalty imposed by the sentencing judge for the adult offence was, in all the circumstances, manifestly excessive. The period of three months imprisonment, albeit suspended, represents half of the maximum sentence. The added imposition of an eight-month driver’s licence disqualification to the imprisonment in my view amounted to a double penalty.
In relation to the question of whether the imposition of disqualification in addition to imprisonment amounts to a double penalty, the appellant directed the Court to the case of Sadler v Crossman.[22] In that case von Doussa J, after discussing the purpose of the power to disqualify, and the importance of general deterrence, said that:
These observations, however, do not lead to the conclusion where immediate imprisonment is ordered, that a period of licence disqualification should be coupled with the sentence. Generally speaking, I think it should not be. Where a sentence of immediate imprisonment is imposed, that sentence should be punishment enough for the contempt which the defendant has shown for the order for disqualification which he has disobeyed…There may be cases where the circumstances lead the court to impose a sentence of imprisonment which is shorter than the norm, and to balance that fact by increasing the punishment by adding a period of licence disqualification. I would think that such cases would be rare.[23]
His Honour went on to conclude that:
In my view, as periods of immediate imprisonment were ordered on the subsequent two s 91(5) offences, it was not appropriate to impose periods of licence disqualification in respect of them. Indeed in the context of the total package of sentences, I think there was additional reason besides those which I have mentioned for not doing so. This young man is required to serve three months in gaol, and seventeen months of disqualification under the other sentences. That is a heavy burden. The loss of his licence may well affect his employment prospects. I think considerations of his rehabilitation required that at the end of that time he be allowed once again to enjoy the privilege of using the roads.[24]
[22] (1988) 47 SASR 331.
[23] (1988) 47 SASR 331, 338.
[24] (1988) 47 SASR 331, 340.
This approach was accepted by Perry J in both Khammash v Police[25] and Peart v Police.[26] In the latter case, Perry J said that:
While it is true that von Doussa J was referring to “immediate imprisonment”, which I assume means a term of imprisonment which is intended to take effect there and then, and not a suspended term of imprisonment, in my view, for the purposes of sentencing principles, in this context, I do not think that there is any difference.
[25] (1999) 29 MVR 561.
[26] (2003) 229 LSJS 194, 196.
The respondent submitted that the imposition of a period of licence disqualification did not amount to a double penalty because the period of imprisonment was suspended. The imposition of a suspended term of imprisonment ‘is a real punishment, although public opinion might be thought to disagree’.[27] In some cases a combination of a suspended sentence of imprisonment and a licence disqualification may be appropriate, however, in my view the combination of three months imprisonment and a period of disqualification of eight months was manifestly excessive, even having regard to the suspension of the sentence.
[27] (2003) 229 LSJS 194, 197.
In the light of these errors it is appropriate that this Court re-sentence the appellant.
Re-sentencing
Before considering re-sentencing, it is necessary to have regard to further information which was given to us as to the current circumstances of the appellant. On the hearing of this appeal, counsel for the appellant appropriately informed this Court of relevant changed circumstances, namely that the appellant has since lost his employment and was attempting to find similar employment. Mr Mead urged the Court to take into account the impact of licence disqualification on the appellant’s prospects of gaining similar employment.
The appellant was given leave by the Court to provide further information on these changed circumstances. The appellant provided an affidavit indicating that he lost his job with the flooring business just before Christmas of 2005. Since then he has done some work grape picking for a vineyard, and is hoping to hear from the vineyard about further casual work. He wishes to find further work in the flooring industry to build on his previous two years work, to further develop his experience and skills to eventually establish a trade and hopefully one day have his own business. He deposes that it is very likely that such work would involve travelling from site to site in the metropolitan and outer metropolitan areas and that he would be far more attractive to employers and find it far easier to maintain any job if he had a driver’s licence. He also deposed to the hardship imposed on his mother as a result of the requirement to drive him to sites as well as to care for the intellectually disabled daughter and the younger siblings who need to be driven to school. He also deposed that since his loss of employment he has had to rely on his parents for financial support and that they have struggled financially.
The respondent filed a written response to the appellant’s affidavit as to his changed circumstances. The respondent submits that the appellant’s affidavit fell short of establishing that the licence disqualification imposed by the sentencing judge would prevent the appellant from looking for, gaining or maintaining employment. The respondent submitted that there was clear potential for the appellant to travel using public transport and assistance from family members and fellow workers or some combination of both.
In relation to this additional material, I am satisfied that the imposition of a licence disqualification on this appellant would cause significant hardship to the appellant and his family. They are living in Sellicks Beach which is an outer suburb and it is important for the appellant who is only a young man, to not have additional hurdles to obtaining employment and assisting his family.
In relation to the youth offence, I would quash the disqualification imposed by the judge, and instead disqualify the appellant from holding or obtaining a driver’s licence for a period of one month. This period of disqualification has already been served. The fine of $300 imposed by the sentencing judge should remain in force.
In relation to the adult offence of driving whilst disqualified, this Court must consider whether, pursuant to s 11(1)(iii) of the Sentencing Act, ‘any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence’. I have regard to the fact that the adult offence was committed just over two weeks after the appellant was apprehended in relation to the youth offence and that there was no excuse for the offending; he was simply driving along the Beach Road with the knowledge that such driving was not permitted. I also have regard to what the Full Court has said about the appropriate sentencing standard in Police v Cadd.
I am satisfied that any sentence other than one of imprisonment would be inappropriate. At the same time I also take into account the harsh effect any additional disqualification of licence would have upon the appellant. I would quash the sentence imposed by the judge and in lieu thereof impose a period of imprisonment of one month, to be suspended on the appellant entering into a bond to be of good behaviour for a period of six months.[28] I would not impose an additional period of driver’s licence disqualification. In all other respects the orders of the judge should stand.
[28] The appellant having already served six months of the suspended sentence bond imposed by the sentencing judge.