Robert John Foster v SA Police No. SCGRG 96/1526 Judgment No. 5755 Number of Pages 6 Criminal Law

[1996] SASC 5755

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - sentencing - non-parole period - appeal by a 22 year old man against the refusal by a Magistrate to set a non-parole period with respect to a total head sentence of 13 months imposed with respect to admitted offences of driving whilst disqualified and driving under the influence - long criminal record and history of defiance by the appellant of previous efforts directed towards his rehabilitation - held that the refusal to fix a non-parole period was fully justified. Criminal Law (Sentencing) Act 1988s32, referred to. Flentjar v Wright and Ors 42 SASR 246; Martin v Police (1993) 168 LSJS 344, considered.

HRNG ADELAIDE, 13 August 1996 #DATE 13:8:1996 #ADD 17:9:1996

Counsel for appellant:     Mr B Dixon

Solicitors for appellant:    Dixon Gallasch Pty Ltd

Counsel for respondent:     Miss J Olsson

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 PERRY J The appellant appeals against the failure by the learned sentencing magistrate sitting in the Magistrates Court at Elizabeth to fix a non-parole period with respect to terms of imprisonment imposed upon the appellant on various admitted traffic offences.

2. He came before the court charged on two complaints.

3. The first alleged that on 27 July 1995 at Smithfield he drove a motor vehicle whilst disqualified. Following a plea of guilty to that charge, he was convicted and imprisoned for a term of two months.

4. On the other complaint, on his plea of guilty, he was convicted of having, on 11 January 1996, at Davoren Park driven whilst disqualified and further that on the same occasion, he drove while under the influence of alcohol. On those offences he was sentenced to one penalty under s18A of the Criminal Law Sentencing Act (1988), namely, a term of imprisonment for a further four months cumulative upon the sentencing imposed upon the other complaint.

5. In addition he was disqualified from holding or obtaining a driving licence for three years commencing from 21 February 1996.

6. At the time he committed both of the offences the appellant was serving a period of parole having been released on parole on 7 May 1995 following his incarceration in prison for an offence of robbery. It followed that the appellant was obliged to serve the balance of the term of imprisonment with respect to which he had been released on parole, that is to say the balance remaining at the time of his commission of the earliest of the two offences upon which he was before the court. That period was seven months and five days.

7. The two sentences of imprisonment imposed on the present charges were directed to be cumulative, both as between themselves and upon the term of seven months and five days, with the result that the overall head sentence was a period of 13 months and five days. That period being in excess of one year, it was necessary for the learned sentencing magistrate to consider the fixation of a non-parole period in accordance with the provisions set out in s32(1).

8. He declined to do so. The appeal is confined to that aspect of the matter. In particular, in his notice of appeal, the appellant complains that "the Learned Magistrate erred in law in the exercise of his discretion by failing to fix a non-parole period for the sentence imposed".

9. As Mr Dixon quite properly submitted on the hearing of the appeal, there is an obligation upon the court to fix a non-parole period in such circumstances, with the qualification that a court may by order decline to do so in the event that one or other of the matters set out in s32(5)(c) gives rise to an opinion on the part of the sentencing court that it would be inappropriate.

10. I have had the benefit of affidavits from counsel who appeared for the appellant in the court below and from the police prosecutor.

11. It appears from this material that, with respect to the first offence, that is the offence which occurred in July 1995, the attention of a mobile police patrol was attracted to a panel van being driven by the appellant. When the vehicle was stopped the appellant was questioned. When it appeared that he was driving under disqualification, that disqualification having been imposed on 20 December 1994, nearly four years before, the only explanation which the appellant gave was that he "wanted to go to the shops" so he drove.

12. So far as the second offence is concerned, that is the offence which occurred in January 1996, the appellant again came under the attention of a mobile police patrol at Elizabeth, this time while driving a sedan motor car. The vehicle appeared to be proceeding erratically as it approached a roundabout. It was skidding and drifting off to the left of the road and swerved sharply to miss a parked vehicle. After the car was stopped, the appellant stumbled as he got out of it and remained unsteady on his feet. He had watery eyes and slurred speech.

13. There were two passengers in the front passenger seat, five passengers in the rear and one other male teenager in the boot, so in total there were nine people in the car.

14. A little later the appellant became abusive and was arrested. Later again he submitted to a blood alcohol test, which resulted in a reading of 0.163 grams in 100 millilitres of blood.

15. When questioned the appellant stated that he had been drinking beer, Jim Beam and Coke at an address from which, for reasons which remain obscure, he thought he should drive everyone home. He gave no satisfactory explanation for having driven again while disqualified.

16. The learned sentencing magistrate had before him a copy of the appellant's record of prior offences. He has an appalling record of offending dating from offences for which he came before the Elizabeth Children's Court in 1986. He had been convicted of a considerable number of break and enter offences, larceny offences, offences of damaging property, illegal use and a number of offences of driving under disqualification. Despite the fact that he is still a young man of 22 years of age he has been sentenced to imprisonment on at least twelve occasions. He has a history of breaching bonds and having failed to comply with bail agreements.

17. Although the learned sentencing magistrate had the benefit of a pre-sentence report, indeed two such reports, the second being a recent update of an earlier report given in 1994, there was nothing in either of the reports to give the court any encouragement to think that the appellant would respond favourably to a period on parole.

18. The second report notes that the appellant breached conditions of parole requiring him to attend at rehabilitation programs, and also by not attending a course on substance abuse and what is described as "anger management". For those breaches he was apparently incarcerated from 11 January 1996 until 9 February 1996, shortly before he came before the court for the purpose of consideration of the sentences now under appeal.

19. The second of the pre-sentence reports concludes:
    "In summary Mr Foster has lacked the commitment and
    motivation to address his offending behaviour whilst on
    parole. He has been unreliable in his reporting and
    unwilling to accept responsibility for and address his
    offending. It is the writer's opinion that unless there has
    been a substantial change in Mr Foster's attitude to
    supervision a further period of supervision is unlikely to
    be effective."

20. In the course of his sentencing remarks the learned sentencing magistrate, after imposing the terms of imprisonment to which I have referred, went on to say:
    "No non-parole period fixed. I do not regard a non-parole
    period as appropriate having regard to your breaches of
    parole, offending while on bail and your record of abuse of
    bail."

21. That passage was challenged by Mr Dixon in the course of his submissions in support of the appeal. He suggested that it was indicative of a failure by the learned sentencing magistrate properly to address the criteria set out in s32(5)(c). In my opinion that argument is not made out. Mr Dixon suggested that the offending which brought the appellant before the court was of a different order and of a different kind from the more serious offences which punctuated the appellant's lamentable record, and therefore should not have been regarded as giving rise to circumstances justifying the adverse exercise of the discretion conferred by s32(5)(c).

22. In my opinion the learned special magistrate was entitled to look at the whole of the background of the appellant, the whole of his prior offending, particularly his behaviour during any previous release on parole, that being a factor expressly referred to in the sub-sections, his criminal record, that being also an express factor and "any other circumstances". The words `any other circumstances' are a general import and are not to be read down either by reference to the matters described in the preceding sub-sections or by any other gloss.

23. The learned sentencing magistrate's remarks were extempore and one should not assume, simply because everything which could have been mentioned was not expressly referred to, that the learned special magistrate did not apply his mind to the relevant circumstances for the purpose at hand. It is far too easy to suggest when busy magistrates give short extempore reasons that, for one reason or another, they have failed to apply their mind to something which they do not expressly refer to.

24. This was an experienced magistrate who was considering the unusual course of refusing to set a non-parole period. It is inconceivable that he did not have regard to the terms upon which the discretion is cast within s32, or for that matter, to the principles which find expression in cases such as Flentjar v Wright and Ors 42 SASR 246.

25. I have also been referred during the course of argument to the judgment of Cox J in Martin v Police (1993) 168 LSJS 344.

26. Amongst other things the authorities support the view that the exercise of the discretion to refuse to set a non-parole period is more readily invoked in the case of sentences of 12 months or a little more than 12 months than would be the case where a longer prison sentence is fixed.

27. Be that as it may, for the reasons which I have given, it appears to me that no error has been demonstrated in the approach of the learned special magistrate. If there is any failing in what he had to say, it was that he could have said a lot more. He could have identified a number of other factors which would support the exercise of the discretion, that is, which would support the refusal to set a non-parole period. It could hardly be a matter which supports the appellant's appeal that the learned special magistrate failed to refer to all of the circumstances which he could have relied upon in taking the course which he did.

28. True it is that the appellant was still a young man, but over a relatively short time he had built up a long criminal record. He had established a pattern of offending behaviour and defiance of court orders. He had again and again rejected opportunities for help in extricating himself from what could only be described as an almost hopelessly fixed pattern of offending.

29. The learned sentencing magistrate had every justification for taking the course which he did. The appeal is dismissed.