R v Nagy - [2007] SASC 221

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NAGY
[2007] SASC 221
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Sulan and The Honourable Justice David)
21 June 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - DELAY BETWEEN OFFENCE AND SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Appeal against sentence – appellant previously sentenced to four years imprisonment with non-parole period of three years suspended upon the appellant entering a bond to be of good behaviour for three years – later plea of guilty to driving offences committed during period of bond – application for enforcement of the bond – suspension revoked, but term of imprisonment reduced to two and a half years with a non-parole period of 15 months – s 58(4) of the Criminal Law (Sentencing) Act 1988 – appellant of advanced age and ill health – significant delay between breaching offences and revocation of suspension – appropriate time for making application – whether the reduction of sentence was inadequate – consideration of effect of age and ill health – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 19A(1), s 19A(3); Road Traffic Act 1961 (SA) s 38, s 45; Motor Vehicle Act 1959 (SA) s 91; Australian Road Rules (SA) reg 287; Criminal Law (Sentencing) Act 1988 (SA) s 58(3), s 58(4); Magistrates Act 1983 (SA) s 23, referred to.
R v Suckling (1983) 33 SASR 133; Kernich v DPP (Cth) (1997) 68 SASR 454; R v Smith (1987) 44 SASR 587; R v Kovac (2006) 166 A Crim R 358, applied.
R v Penno (2004) 236 LSJS 457, distinguished.

R v NAGY
[2007] SASC 221
Court of Criminal Appeal: Bleby, Sulan and David JJ

THE COURT: This is an appeal against a sentence imposed upon the appellant for breaching a bond which he had entered as a condition of a suspended term of imprisonment.
The sentencing Judge who dealt with the breach of bond refused to excuse the breach. However, the original sentence was reduced. The appellant now argues that the amount of the reduction was inadequate. It is conceded that the sentencing Judge did not err in refusing to excuse the breach.
Chronology of Events
The appellant was the driver of a Ford motor vehicle which was involved in an accident with a Holden motor vehicle on 22 February 1998. As a result of this accident, two passengers in the Holden motor vehicle died and the driver was injured. The appellant was charged with two counts of causing death by dangerous driving pursuant to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of causing bodily harm by dangerous driving pursuant to s 19A(3) of the Criminal Law Consolidation Act. The matter proceeded to trial and the appellant was found guilty on all counts.
The appellant was sentenced by Prior J on 20 August 1999. A single sentence was imposed of four years imprisonment, with a non-parole period of three years. The appellant was also disqualified from holding a driver’s licence for eight years, i.e. until 19 August 2007. Prior J found that the deterrent aspect of punishment, for the type of offences committed by the appellant, made it difficult to suspend the sentence. However, given the appellant’s age of 72 years, his ill health and the ill health of his wife, he determined that the sentence should be suspended upon his entering into a bond in the sum of $1,000 to be of good behaviour for a period of three years. This bond was due to expire on 19 August 2002. The appellant was advised that if he committed any further offences before the expiration of the bond, he would be liable to serve the four year sentence of imprisonment which had been suspended.
On 21 March 2002 the appellant was involved in a motor vehicle accident. Police did not speak to the appellant immediately after the accident, and in fact did not speak to him until 3 May 2002. At that time the appellant denied that he had been driving the vehicle, saying that his wife was the driver of the vehicle. The appellant was charged with driving without due care pursuant to s 45 of the Road Traffic Act 1961 (SA), driving while disqualified pursuant to s 91 of the Motor Vehicles Act 1959 (SA), failing to truly answer pursuant to s 38 of the Road Traffic Act 1961 (SA) and failing to provide particulars to police about a motor vehicle collision pursuant to reg 287 of the Australian Road Rules (SA). It was the commission of these offences which constituted the breach of bond the subject of this appeal. We will refer to them as “the breaching offences”.
On 28 September 2002 the appellant was stopped by police while driving an unregistered motor vehicle which was not displaying any number plates. At this time the appellant advised the police that he believed he would get his driver’s licence back on 9 November 2002. He stated that he was driving because he needed to get parts for the vehicle. The appellant was summonsed to appear before the Coober Pedy Magistrates Court in relation to these offences, with a first return date of 13 December 2002. From the court file it appears that the appellant failed to appear on this occasion and that the matter was adjourned to 28 February 2003. The appellant again failed to appear and a warrant was issued. The appellant surrendered to police and came before the court with respect to these charges on 15 April 2003.
On 27 May 2003 the appellant was again stopped by police while driving. He advised that he was aware of his disqualification from holding a driver’s licence. He indicated that he was driving the vehicle to warm it up. It appears that the appellant was taken into custody and released on bail, on the condition that he appear before the Adelaide Magistrates Court on 24 June 2003. The appellant failed to appear on that date. The matter was adjourned to 22 July 2003, when he appeared for the first time with respect to these charges.
Eventually all these offences, including the breaching offences, were dealt with together in the Adelaide Magistrates Court.
The appellant was referred by that Court to the Mental Health Diversion Program on 27 July 2005. He was assessed as unsuitable for the program because of his age and poor health, the possibility that he was not fit to plead and the fact that he did not reside in the metropolitan area. For reasons which are not apparent, he was re-referred to the program on 22 November 2005 following confirmation that he was fit to plead. It appears that the referral was returned as being inappropriate in view of the earlier conclusion reached and expressed in a report as recently as 19 September 2005.
On 11 July 2006 the defendant pleaded guilty to the breaching offences. In addition he pleaded guilty to the offences of driving while disqualified, driving an unregistered vehicle, driving an uninsured vehicle and driving a motor vehicle without number plates attached, which arose out of the incident on 28 September 2002. He also pleaded guilty to one count of driving while disqualified which arose out of the incident on 27 May 2003. He was referred yet again to the Mental Health Diversion Program. He was involved in the program for only four months. The final report of the Clinical Liaison Officer of the Program states that the appellant had limited insight into his mental health and offending behaviour, which negatively affected his response to treatment. His period of participation had had a “limited impact upon his functioning and progress has been minimal”.
The appellant was sentenced in the Magistrates Court on 9 February 2007. In relation to the three counts of driving while disqualified, the appellant was sentenced to 18 weeks imprisonment and was disqualified from holding a driver’s licence for one year. The sentence was suspended upon his entering into a bond in the sum of $1,000 to be of good behaviour for a period of 12 months. In relation to the charge of driving while uninsured on 28 September 2002 he was disqualified from holding a driver’s licence for seven days. With respect to all other offences a conviction was recorded without further penalty.
On 4 September 2006 the Director of Public Prosecutions made an application for enforcement of a breached bond as a result of the breaching offences to which the appellant had pleaded guilty on 11 July 2006. The matter came before a Judge of this Court on 6 November 2006, at which time the appellant admitted the breach. The appellant was sentenced for the breach of bond on 19 February 2007. The sentencing Judge held that there was no material before the Court which would allow the breach to be excused pursuant to s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”). However, the Judge did hold that there were special circumstances which justified a reduction in the length of the sentence pursuant to s 58(4) of the Act, in particular the appellant’s age and ill health. The suspension of the appellant’s sentence imposed on 20 August 1999 was revoked, and the term of imprisonment was reduced to two and a half years with a non‑parole period of 15 months, to commence forthwith.
The present appeal is against the reduced sentence imposed by the sentencing Judge. The appellant does not argue that the breach was trivial or that there are grounds on which the breach should have been excused pursuant to s 58(3) of the Act.
Circumstances of the Appellant
At the time of sentencing for the initial offences the appellant was 72 years old. When sentenced for the breach of bond in February 2007 he was 79 years old. He is separated from his wife. He resides in Mintabie in the far north of this State, but often stays with his wife in Adelaide when he has to attend medical appointments.
Although the appellant had a number of convictions prior to 1999, none were considered to be relevant to his sentencing for the 1999 offences. At the time that the breach of bond application was heard, he had convictions relating to the incidents which occurred on 21 March 2002 (the breaching offences), 28 September 2002 and 27 May 2003.
The appellant has a number of medical conditions. His general practitioner, Dr Douglas Townsend, reports that he has had Type II non-insulin dependent diabetes for at least seven years. This condition had been controlled with medication and diet in the past, but now requires the injection of insulin on occasion. The appellant also complains of pain and limited range of movement of the shoulders, the pain being treated with Panadeine Forte and Mobic. He also has difficulty walking because of poor circulation in his right leg. He makes use of a walking stick and gopher. The appellant also suffers from hypertension. A psychiatrist, Dr Craig Raeside, reports that the appellant has a history of depression, but that he has not sought any psychiatric treatment for this condition. In addition, a neuropsychologist, Mr Colin Field, has assessed the appellant as having a mild cognitive impairment.
Delay
Before turning to the arguments on appeal, it is important to say something about the question of delay. The appellant first appeared in the Adelaide Magistrates Court on 3 October 2002 for the breaching offences. It appears that this and most subsequent appearances were through his then solicitor. He appeared before the court on 24 further occasions, before pleading guilty on 11 July 2006. The application for enforcement of a breached bond was not made until 4 September 2006. This is a delay of four years between his first appearance for the breaching offences and the application being made for enforcement of the bond.
The reason for the delay in finalising the breaching offences is not clear, however the Certificate of Record provides some insight. It appears that the appellant initially disputed all counts on the Complaint and the matter was listed for a pre-trial conference and a one day trial. The trial was scheduled for 21 July 2003 but did not proceed. Instead, the appellant entered a plea of guilty to the charges of driving without due care, failing to truly answer and failing to give particulars. He did not enter any plea to the charge of driving while disqualified. The matter was adjourned and when it next came before the court on 19 September 2003 the appellant withdrew his guilty plea. A number of adjournments followed over the next 20 months as a result of the court ordering a variety of medical reports to determine the appellant’s fitness to plead. Following the intimation of a guilty plea, the appellant was first referred to the Mental Health Diversion Program on 27 July 2005. He was determined to be ineligible for the Program. When the matter came before the court again on 20 September 2005 the Magistrate ordered further medical reports. Reference has already been made to the further adjournments and referrals to the Mental Health Diversion Program. The prosecution first advised the court of the possibility that an application for enforcement of a breached bond may be made at the hearing on 19 December 2005. On 23 January 2006 the appellant withdrew his agreement to the objective facts of the offence of driving while disqualified and the matter was again listed for trial. The trial date was vacated and the appellant pleaded guilty to all charges on 11 July 2006, and he was again referred to the Mental Health Diversion Program. He was not sentenced in the Magistrates Court until 9 February 2007.
When sentencing the appellant for the three counts of driving while disqualified (including the breaching offences), the sentencing Magistrate touched on the question of delay when he said:
It is not now clear to me why this matter has taken as long as it has to come to court. It is clearly most unsatisfactory that offending that took place in 2002 is finally being addressed in February 2007. I have suspicions what may have happened but at the end of the day I am faced with the fact that I am today to sentence you for offending that took place almost five years ago.[1]
On the same topic, the sentencing Judge said:
The prosecution of the breaching offences has a long and unhappy history in the Magistrates Court. It appears from a certificate of record which I have that the matter was first mentioned on 24 June 2003 when, although you were not present, you were represented by Mr Pertl. I note that, on 22 November 2005, when the prosecution of the charges had been referred to the Mental Health Diversion Program, Mr Pertl acknowledged on your behalf the objective facts of the charges. However, it seems that on 23 January 2006 that acknowledgement was withdrawn. It appears that on 11 July 2006 you entered a guilty plea to those charges through your counsel, although it is not clear to me that this is more than an acknowledgement, again, of the objective elements. Anyway, the matter was again referred to the Mental Health Diversion Program. It appears that you were not accepted for that program ultimately and, on 9 February 2007, you were dealt with in the Magistrates Court for the breaching offences and, additionally, for the subsequent offences. In relation to the three charges of driving disqualified, Mr Wilson SM sentenced you to imprisonment for 18 weeks but suspended that sentence. In relation to the other offences you were discharged without penalty.
I mentioned the unhappy history of the prosecution for the breaching offences. On the material before me it took one year and three months for the matter first to be mentioned in court. From there it took about three years and eight months to reach finalisation. The elapse of those years is, of course, a matter of significance in a man of your age and ill health. As will appear, there has been a deterioration in the state of your health since the original breaching offences and your first appearance in court.
It is significant to note that the prosecution has not put to me that the fault for protraction of these proceedings rests with you. Doubtless some responsibility would lie with each side. Having said that, it seems to me that the least that can be said is that no great effort has been made by you or your advisers to expedite the matter.
[1] Police v Nagy (Unreported, Magistrates Court of South Australia AMC-03-9098, AMC-06-10535, AMC-02-12878, Wilson SM, 9 February 2007), 4.
Since the breaching offences were committed on 21 March 2002, there have been 25 appearances in the Magistrates Court before a total of 10 different judicial officers. Eleven medical reports have been generated by eight medical practitioners. Two reports have been provided by a psychologist and five reports by clinical advisers to the Mental Health Diversion Program. It took almost five years from the date of the offence until sentence was passed in a court of summary jurisdiction, despite a number of reported requests by the appellant that his case be finalised so that he could “go home”. What is of greater concern is that, as a result, the penalty of imprisonment for the offence committed on 22 February 1998 was commenced on 19 February 2007, three days short of nine years after the offence.
Delays of that order in the delivery of summary justice for the prosecution of summary offences are quite unacceptable and inexcusable. The costs involved both to the appellant and to the community are quite out of proportion to the nature of the offending. From the information available to this Court, it is not possible to identify precisely the cause or causes. We cannot say whether it was due to incompetent advice, lack of co-operation by the appellant, a failure of successive busy magistrates properly to review the file, a deliberate attempt to postpone the inevitable, the remoteness of the appellant’s residence, a misplaced concern for the appellant’s welfare or a combination of any of those. We can only observe that, if the ultimate plea of guilty to the offences was justified, justice would have been far better served if it were entered on 3 October 2002.
Whatever may have gone wrong throughout the sorry history of the matter in the Magistrates Court, the satisfactory resolution of proceedings was not assisted and was probably aggravated by the failure to commence proceedings for the breach of bond until 4 September 2006, almost four and a half years after the breaching offences. We were told that the prosecution was awaiting resolution of the Magistrates Court proceedings, and that proceedings were commenced within a reasonable time of the appellant entering his plea of guilty in the Magistrates Court on 11 July 2006.
One can understand the reason for not attempting to prove the breach until the breaching offences are dealt with. However, that is no reason for delaying the application to enforce the bond and to call upon a probationer to show cause why he or she should not be dealt with according to law for the alleged breach of the bond. In this case, the appellant faced the prospect of having to serve a term of imprisonment for four years with a non-parole period of three years as a result of the breaching offences. Yet it seems that the first time that the Magistrates Court was informed of that possibility was on 19 December 2005, with the actual application being made over nine months later. Had the application been made in 2002, as it should have been, it may well have helped the appellant and the Magistrates Court to focus more clearly on the consequences of delay. Timely service of an application for breach of bond may well be relevant to a decision as to the plea to be entered for the breaching offence or offences. The fact that serious consequences may flow from the proceedings because of the breach of bond will enable a Court to be alive to the possibility of tactical moves by a defendant or his or her advisers to delay proceedings unreasonably in order to be able to put a submission of leniency based on delay[2] where the defendant faces a sentence of imprisonment.
[2] See R v Suckling (1983) 33 SASR 133; Kernich v DPP(Cth) (1997) 68 SASR 454.

Had the proceedings been instituted earlier, the Magistrates Court would have been aware at an early stage of the need for expeditious resolution of the proceedings. A Judge of this Court, as the relevant probative court, could have exercised some influence over the proceedings to ensure that they were progressed in a timely fashion even, if necessary, by dealing with the summary offences in exercise of the powers conferred by s 22 of the Magistrates Act 1983 (SA). A probative court has a responsibility to ensure that breaching offences are dealt with expeditiously, in order that it may deal with what may have far greater consequences than the penalty for the breaching offences. There is no excuse for delaying the commencement of the breach of bond proceedings for so long.
Arguments on Appeal
The appellant now argues that the reduced sentence does not give sufficient allowance for those matters personal to the appellant, namely his health and his age. He also argues that over and above that, the sentencing Judge should have adopted a more merciful approach, consistent with the decision of this Court in R v Penno.[3] In that case Gray J held that:
[3] R v Penno (2004) 236 LSJS 457; [2004] SASC 354.
Outside of the principles of mitigation and totality, sentencing authorities have an inherent discretion to grant leniency under the doctrine of mercy. In Cobiac v Liddy Windeyer J observed:
“The whole history of criminal justice has shewn that severity of punishment begets the need for a capacity for mercy. … This is not because mercy, in Portia’s sentence, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.”
In R v Miceli the Victorian Court of Appeal recognised the doctrine of mercy as relevant to the exercise of sentencing discretion and upheld the observations of King CJ in R v Osenkowski where it was observed:
“…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.”
This statement has been approved by Winneke P and Hayne JA in R v Carter and R v Clarke.
It has also been established that the discretion to adopt a merciful approach to sentencing should only be used in circumstances where weight should be given to factors which are ordinarily not regarded as relevant mitigating circumstances. For example, the principle of mercy is often sought to relieve or compensate for hardship which resulted from the offence or would result from the sentence imposed. In order to demonstrate sufficient hardship in this context, there is a need to identify a significant burden to be borne in addition to punishment - for example a substantial economic, social or other disability. In some cases, circumstances personal to a defendant may give rise to the exercise of mercy to relieve excessive hardship.[4]
(Citations omitted)
[4] Ibid at 457-8, [52]-[54].
In the circumstances of this case neither argument can be made out. It must be remembered that age and ill health have a limited role to play in any sentencing process. As King CJ said in R v Smith:[5]
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.
[5] (1987) 44 SASR 587 at 589. See also R v Kovac (2006) 166 A Crim R 358; [2006] VSCA 229.
The original offence was a very serious one and it could be said that the original sentencing Judge took a very merciful approach in suspending the sentence that was imposed. The breaching offences were at the heart of the sentence which was imposed, namely a deliberate breach of his bond and contempt of the order of the original sentencing Judge that he be disqualified from holding a driver’s licence. Significantly, no submission was put to the sentencing Judge or to this Court based on delay or remoteness from the original offending. Such a submission would, in this case, have amounted to double counting, as the primary thrust of the appellant’s submissions was based on the deterioration of his health since the original sentence was imposed.
The sentencing Judge in this matter clearly took into account the age and health of the appellant when she said:
You will turn 80 on 29 June this year. I have a good deal of information about the state of your health, most notably from your physician, Dr Townsend. Dr Townsend reports that you suffer from Type II diabetes, which is non-insulin dependent, and which you have had for the past seven years. You have notable urinary tract symptoms, but there is no evidence of prostatic cancer. You suffer from arthritis of the back and right arm, which is a consequence of the road accident in 1998. For at least the last five years you have had hypertension and there is evidence of previous anterior myocardial infarction. Since before the motor vehicle accident you have suffered from impaired memory, cognitive problems and anxiety attacks. You have a history of suffering from depression which seems to date from since the traffic accident. You have longstanding insomnia. You have problems with your right leg which impairs your ability to move and, at least occasionally, you use a frame to assist your walking. There is some difficulty with vision.
Having regard to these conditions, particularly your diabetes, arthritis, hypertension, insomnia and poor blood supply in your right leg, Dr Townsend considers you would find prison a great burden. As to your general prognosis, Dr Townsend expresses the view that it is “quite fair in a patient of 79” but you need to keep good control of your diabetes, weight and hypertension. All in all, whilst it cannot be said that you are in a robust state of health, nor does your condition preclude you from going to prison. I have no doubt that, to some extent, your depression is related to your concerns about the outcome of this application.
It has been put to me that your physical condition may not amount to “special circumstances” within the meaning of the section, since much of your ill health pre-dates your sentencing by Prior J. I accept that would be so to an extent but, plainly, those conditions which were existent at that time have deteriorated. Moreover, I do not have before me precise details of material upon which Prior J relied in 1999. Anyway, as I said, I think it is apparent that, to the extent that there has been deterioration in your various conditions and one or two new ones added, that does amount to special circumstances. In a sense, too, the fact that you are much older than you were at that time is significant. Even had this matter been prosecuted promptly, both in the Magistrates Court and in this court, I would have expected that you would have been about four years older than you were at the time of sentencing. For a man in his seventies, four years can make a lot of difference.
In the circumstances, the only option available to the Judge under s 58(4) of the Act was to reduce the term of the original sentence. That could only be done if the Court considered that there were special circumstances justifying that course. On the grounds of the appellant’s age and ill health the Judge found that there were special circumstances. Those special circumstances still had to be balanced against the seriousness of the original offence and the contumacious nature of the breach. Each one of us might have reached different conclusions as to what the extent of the reduction should be. However, no error has been demonstrated in the exercise of the Judge’s discretion as to the extent of the reduction that was fixed.
The Judge clearly took into account everything that was put in favour of the appellant. The reduction in sentence from four years to two and a half years and in the non-parole period from two and a half years to 15 months was substantial.
Conclusion
The sentencing judge took a merciful approach in substantially reducing both the head sentence and the non‑parole period. No error in the application of s 58 of the Act has been identified.
The appeal is dismissed.