Ryan v Police - [2008] SASC 175

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RYAN v POLICE
[2008] SASC 175
Judgment of The Honourable Justice Gray
2 July 2008
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
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Appeal against sentence - defendant pleaded guilty to possessing a prescription drug that was not lawfully prescribed, failing to enter logbook information when the driver of a heavy truck, and failing to provide his driving record to his employer - on the first count, Magistrate sentenced the defendant to a term of two months’ imprisonment, suspended on the defendant’s entry into a good behaviour bond - on the second count, Magistrate imposed a fine - on the third count, Magistrate imposed a fine and disqualified the defendant from holding or obtaining a driver’s licence for two months - defendant appealed only against licence disqualification - whether the Magistrate failed to have regard to the effect of a licence disqualification on the defendant’s employment - whether the Magistrate had unfairly taken an adverse and prejudicial view about the defendant from his alleged poor demeanour in court.
Held: appeal allowed - Magistrate had insufficient regard to the effect of a licence disqualification on the defendant's employment - Magistrate imposed penalty partly on the basis of the adverse view he formed of the defendant’s demeanour in court - defendant had not been given an opportunity to address this issue and was not on notice that the Magistrate would make an adverse finding in this respect - Magistrate's sentencing discretion miscarried - licence disqualification set aside - defendant to enter into suspended sentence bond with additional terms that he be under the supervision of a Correctional Services Officer for a period of 12 months, that he undergo courses for drug and alcohol abuse at the direction of that Officer, and that he not drive, other than for the purposes directly related to his employment, for a period of four months - the sentence imposed is otherwise affirmed.
Controlled Substances Act 1984 (SA) s 18(3); Road Traffic Act (Driving Hours) Regulations 1999 (SA) reg 52(1)(f) and reg 60(b), referred to.
R v McMillan (2002) 81 SASR 540; R v Martin (No 4) (2000) 78 SASR 140; House v R (1936) 55 CLR 499; Dinsdale v R (2000) 202 CLR 321, considered.

RYAN v POLICE
[2008] SASC 175
Magistrates Appeal
GRAY J

This is an appeal against sentence.
The defendant and appellant, Shane Thomas Ryan, pleaded guilty to possessing a prescription drug, dexamphetamine, that was not lawfully prescribed,[1] failing to enter logbook information when the driver of a heavy truck,[2] and failing to provide his driving record to his employer.[3]
[1] Contrary to section 18(3) of the Controlled Substances Act 1984 (SA).
[2] Contrary to regulation 52(1)(f) of the Road Traffic (Driving Hours) Regulations 1999 (SA).
[3] Contrary to regulation 60(b) of the Road Traffic (Driving Hours) Regulations 1999 (SA).
The Magistrate sentenced the defendant on the first count to a term of two months’ imprisonment. However, he exercised his discretion and suspended the sentence on the defendant’s entry into a three-year, $1000.00 good behaviour bond. On the second and third counts, the Magistrate imposed fines on each of $212.00 plus court costs, and on the third count he also disqualified the defendant from holding or obtaining a driver’s licence for two months.
The defendant’s offending came to light when he was stopped for the purposes of a routine check while driving his vehicle. This lead to the examination of his logbook, and to the discovery of dexamphetamine tablets. These tablets had not been prescribed for the defendant. Although the defendant had not used the tablets, he acknowledged that they were in the vehicle for the purpose of using them to prevent him from falling asleep.
The Magistrate took a very serious view of the defendant’s offending, as is evident from the following extracts from his remarks:
Sir I feel that I have to say that you represent [to the] ordinary drivers on these country roads in this community their worst fears about truck drivers. Someone who fudges their driving records, mechanically alters the speed limiter on the truck so you can exceed the speed limit for the truck and who also [has] substances in your possession that you are prepared to use to chemically keep you awake so that you can keep on driving past the safety limits of drivers of heavy vehicles. To the ordinary person [you] represent the possibility of them meeting a drugged tired truck driver on the highway.
…
The Dexamphetamine is a more serious charge and I can impose up to $10,000 fine or imprisonment for up to 2 years. I think this is a particularly serious offence and as I have said to the defendant in open Court before these proceedings. He really represents the worst fears of ordinary road users in terms of irresponsible truck drivers. I have warned the defendant repeatedly prior to commencing these proceedings of the need for legal advice and legal representation and he insists that he wished to proceed unrepresented. I … have warned of the possibility of imprisonment and or a substantial fine.
It seems to me this offending must be very severely dealt with. There ought to be a very clear personal deterrent to you and a very substantial deterrent to people who might be like-minded to commit this same offending in relation to the unlawful possession of drugs whose purpose is to keep you awake artificially whilst driving.
The reference by the Magistrate to the defendant having mechanically altered the speedometer on the truck to enable him to exceed the speed limit for the truck related to the police having found a mechanical device in the truck. That particular offence had been the subject of an expiation notice, on which the defendant had been separately punished.
On appeal the defendant initially complained about the sentence of imprisonment, and the licence disqualification. However, on the hearing of the appeal, the complaint about the suspended term of imprisonment was abandoned.
Two primary complaints were advanced to support the appeal against the licence disqualification. It was said that the Magistrate had failed to have regard to the effect of a licence disqualification on the defendant’s employment. It was further submitted that the Magistrate had unfairly taken an adverse and prejudicial view about the defendant from his alleged poor demeanour in court. It was said that the Magistrate’s sentencing discretion had miscarried.
Counsel for the police submitted that, when viewed in their entirety, the sentencing remarks disclosed no error, and that even if error had occurred, the sentence was the appropriate sentence in any event.
The Magistrate’s observations about the dangers to other road users from irresponsible driving practices of heavy transport drivers were fully justified. As Doyle CJ observed in McMillan:[4]
It is well known that some truck drivers use amphetamines and other unlawful substances to keep them awake while they are driving long distances. It is also generally accepted that this is a practice that carries with it dangers to other persons on the road. I consider these matters to be sufficiently well known for them to be matters by which the Judge was entitled to act.
However, it is to be borne in mind in the present case that the defendant’s offending did not involve any aberrant driving, nor the use of any drug.
[4] R v McMillan (2002) 81 SASR 540 at [10].
This appeal has an unusual feature. The imposition of a term of imprisonment in the present case could be viewed as being manifestly excessive. In McMillan, the Court set aside a sentence of imprisonment imposed on a truck driver who was in possession of amphetamines, and released him on a good behaviour bond.[5]
[5] R v McMillan (2002) 81 SASR 340 at [12]-[19] (Doyle CJ), at [24]-[37] and [104]-[168] (Gray J).
Counsel for the defendant submitted that the acceptance of the suspended sentence of imprisonment was a clear indication that the defendant was prepared to change his ways, wished to rehabilitate himself and proposed to adopt a responsible approach to heavy vehicle driving in the future. In my view, a suspended imprisonment term for the defendant’s offending was a heavy punishment, and his acceptance of this punishment is an indication of the defendant’s recognition that he needs to change his ways.
I have reached the conclusion that the Magistrate was influenced to impose this penalty, as well as to suspend the defendant’s driver’s licence, in part because of the adverse view he formed based on the defendant’s demeanour in court. In his remarks, the Magistrate reached the conclusion that he was satisfied that the defendant did not regard the proceedings seriously:
I have been utterly dismayed by your attitude in court this afternoon. You have considered these proceedings as somehow hilarious all the way through. I have tried to make what allowance I could for perhaps nervousness and I am satisfied that you do not regard these proceedings seriously and are disbelieving of what is going on here.
The defendant explained, in an affidavit filed on the appeal, that the Magistrate had misunderstood his demeanour in court, and had acted unfairly in reaching his adverse conclusions. In particular, the defendant complained that he had been given no opportunity to address this issue, and was not on notice that the Magistrate would make an adverse finding in this respect.
In Martin (No 4),[6] the Court considered the circumstances in which it was permissible for a judicial officer to rely upon undisclosed observations of appearance and conduct of a party. Perry J reviewed the relevant authorities, and observed:
[6] R v Martin (No 4) (2000) 78 SASR 140 at [34]-[36] (footnotes omitted).
So far as in-court observations are concerned, I would summarise the relevant principles as follows:
(a)The trial judge is entitled to take into account the demeanour and physical presentation of any witness or party while they are in the witness box.
(b)The appearance of a party or witness or his or her behaviour when approaching the witness box or sitting in the body of the court may likewise be taken into account.
(c)Whether in the circumstances postulated in (a) or (b) the trial judge should draw the attention of counsel to his or her observations is a matter for the judge's discretion, bearing in mind the judge's obligation to maintain procedural fairness. If what he or she has observed was not in full view of counsel or may have escaped counsel's attention, the matter should be disclosed to counsel in time for counsel to comment and, if thought proper, to call or recall the party or witness concerned.
(d)Likewise, there should generally be disclosure of matters which have the potential to have a significant effect on the outcome of the trial, for example, where physical movements of a party under observation by the trial judge might have a tendency to support or throw doubt on other evidence as to the party’s condition.
(e)On the other hand, the trial judge may take into account patent physical conditions which are equally obvious to counsel relating to a witness or party, such as the height of the party or witness, his or her build, or the colour of their eyes, without the need for any particular comment by the trial judge.
It must be accepted that when a party is unrepresented every care must be taken to ensure that he or she is not disadvantaged unduly in presenting their case. I use the word “unduly”, as in any case where a party is unrepresented, there is a level of disadvantage which cannot be eliminated.
But in the case of an unrepresented party, the same principles should apply to the question of observations by the trial judge, although their application may vary. For example, where a party is unrepresented, the judge should obviously err on the side of caution and raise any matter the significance of which, if undisclosed, might not be apparent to a person lacking legal expertise.
[emphasis added]
In the present case, it is possible, as counsel for the police contended, that the Magistrate did not allow his views of the defendant’s demeanour to influence penalty, but was concerned that the defendant was not taking the proceeding seriously and needed to understand that he had to comply with the terms of the suspended sentence bond and also comply with the order for disqualification. Regrettably, if this was in fact the reason for his remarks, the Magistrate did not make clear that he had only used his observations in this way.
The remarks do leave the impression that the Magistrate had formed an adverse view about the defendant because of his demeanour and attitude in court, and that those conclusions, either consciously or subconsciously, impacted on his view about penalty. It would have been a simple matter for the Magistrate to have drawn his perceptions of the defendant to the defendant’s attention, and to have given the defendant the opportunity to offer an explanation. This did not occur. In my view, in the circumstances, the Magistrate has allowed an extraneous matter to intrude into the sentencing process.[7]
[7] House v R (1936) 55 CLR 499; Dinsdale v R (2000) 202 CLR 321.
On the hearing of the appeal, a detailed affidavit was filed addressing the defendant’s employment circumstances. In the affidavit it was explained that the defendant had been a heavy transport driver for most of his working life and that the loss of his licence directly jeopardised his present and future employment.
The Magistrate made no reference at all to the effects of disqualification on the defendant’s employment. It is difficult, as counsel for the police submitted, to reach a conclusion that the Magistrate failed to have regard at all to this consideration. However, given the importance of the defendant’s licence to his employment, it is a circumstance to which full weight was not given. The option of imposing a suspended sentence bond that precluded the defendant from driving other than for the purposes of his employment does not appear to have been considered.
On the hearing of the appeal, the police placed further evidence before the Court relating to the defendant’s antecedents. This material disclosed one earlier offence involving a prohibited substance. This had been dealt with by way of a bond. The antecedent record also disclosed many minor driving offences, including logbook offences, generally the subject of expiation notices. The accumulation of demerit points had led to a licence disqualification in late 2001.
When regard is had to public safety, an important consideration is the long-term rehabilitation of the defendant, and in particular his acceptance of the need to adopt a responsible attitude toward heavy transport driving. He needs to understand that the maintaining of his logbook and the provision of that record to an employer is an important matter, and that the use of inappropriate stimulants to keep a driver alert are unacceptable and create serious risks to road safety. The past regime of expiation notices, fines, and a licence disqualification do not appear to have delivered the appropriate message to the defendant. There is an opportunity in the present proceedings to assist the defendant’s long term rehabilitation through the terms of a suspended sentence bond.
The sentencing discretion of the Magistrate miscarried. The Magistrate failed to pay proper regard to the effects of the defendant’s employment of a loss of licence, and in particular failed to consider the option of providing, through the suspended sentence bond, for a condition that the defendant only drive in the course of his employment. Further, it appears that the Magistrate took an adverse view of the defendant’s demeanour, and drew a conclusion that the defendant was not taking the proceedings seriously, without giving the defendant the opportunity to address and explain his demeanour and conduct within court. There is a real risk that this led the Magistrate to take a more serious view of the punishment to be imposed than might otherwise have been the case.
I allow the appeal, and set aside the licence disqualification. I require the defendant to enter into a three-year, $1,000.00 suspended sentence bond, to include the further terms that he be under the supervision of a Correctional Services Officer for a period of 12 months, that he undergo courses for drug and alcohol abuse at the direction of that Officer, and that he not drive, other than for the purposes directly related to his employment, for a period of four months. I otherwise affirm the sentence imposed.