Seeley v Police - [2016] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SEELEY v POLICE
[2016] SASC 143
Judgment of The Honourable Justice Lovell
2 September 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
The appellant pleaded guilty to two counts of driving whilst disqualified. The offending breached a suspended sentence bond imposed of three weeks. The learned Magistrate estreated the bond and ordered the appellant to serve five months imprisonment cumulatively upon the three weeks.
On appeal, the appellant argued, amongst other grounds, that the sentence was manifestly excessive.
Held: Appeal allowed.
1. The sentence imposed by the learned Magistrate was manifestly excessive.
2. The appellant is to be resentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 38, s 58; Motor Vehicles Act 1959 (SA) s 91, referred to.
R v Buckman (1988) 47 SASR 303; R v Pham [2003] SASC 386, applied.
Police v Chilton (2014) 120 SASR 32; Police v Carusi [2002] SASC 240; Wood v Police [2015] SASC 109; Police v Nissen (2014) 120 SASR 50; Police v Cadd & Ors (1997) 69 SASR 150, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Manifestly excessive"

SEELEY v POLICE
[2016] SASC 143
Magistrates Appeal: Criminal
LOVELL J.
Overview

On 1 and 6 March 2015, the appellant breached the conditions of his suspended sentence bond by driving whilst disqualified.[1] The appellant had prior convictions for driving whilst disqualified. The learned Magistrate was told that the appellant was suffering from a major depressive disorder, social anxiety and was abusing drugs. The appellant had completed 10 of the 12 months of the period of the bond. The learned Magistrate remarked that the appellant needed a “wakeup call” and revoked the bond and ordered that the appellant serve the 21 days of imprisonment. For the two offences of driving whilst disqualified he imposed a sentence of eight months imprisonment reduced to five months imprisonment for an early plea, that sentence to be served cumulatively at the expiration of the 21 days imprisonment.
[1] Motor Vehicles Act 1959 (SA) s 91.
The appellant complains, amongst other grounds, that the sentence was manifestly excessive. I heard the appeal on 28 August 2015. On 4 September 2015, I announced my decision that the sentence was manifestly excessive. Accordingly, the appellant is to be re-sentenced. The following are my reasons for allowing the appeal. I have heard further submissions on sentence. Further submissions occurred on 17 November 2015, 11 December 2015, 18 December 2015, 9 February 2016, 10 March 2016, 16 June 2016 and 2 September 2016.
Grounds of appeal
The appellant relies upon the following amended grounds of appeal:
1.      The sentence was manifestly excessive;
2.      The learned sentencing Magistrate erred in failing to wholly suspend the sentence;
3. The learned Magistrate erred by failing to consider reducing the term of the appellant’s suspended sentence of imprisonment pursuant to section 58(4) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”);[2] and
4. The learned Magistrate erred by failing to partially suspend the sentence of imprisonment pursuant to section 38(2a) of the Sentencing Act.
[2]    On appeal, it was accepted by counsel for the appellant that this was not raised at first instance; T 6.
Background of offending
On 20 May 2014 the appellant was convicted of two offences of driving whilst disqualified. He received a fine for the first offence and a suspended sentence of 21 days imprisonment for the second. The sentence was suspended on him entering into a bond to be of good behaviour for a period of 12 months.
In February 2015 the appellant was stopped by police for speeding. At that time, the appellant was given an instant loss of licence for a period of six months. The police officer served the appellant with a written notice of the disqualification, which he signed.
On 1 March and 6 March 2015 the appellant subsequently drove in contravention of that suspension. In doing so the appellant also breached the suspended sentence bond which had been imposed upon him on 20 May 2014. Before dealing with the submissions advanced on appeal it is appropriate to summarise the circumstances of the offending.
The first March offending
On 1 March 2015 at about 6.10 pm police were on uniform patrol when they observed the appellant travelling south along Hallett Road, Burnside. Registration and licence checks on the vehicle confirmed that the registered owner of the vehicle was suspended from driving. Police subsequently stopped the vehicle. The appellant claimed that he was not told by the police officer who stopped him for speeding in February 2015 that his driver’s licence would be suspended. He also stated that he did not read the paperwork that was given to him on that previous occasion. It is clear from the remarks that the learned Magistrate did not accept this explanation.
The second March offending
On 6 March 2015 at about 12.15 pm police observed the appellant travelling south along Prospect Terrace and then east along Gloucester Street, Prospect. Again, registration and licence checks on the vehicle confirmed that the registered owner of the vehicle was suspended from driving. The appellant was stopped and subsequently arrested and charged with driving whilst disqualified. When the appellant was interviewed by police he stated that he was aware that he was suspended from driving due to speeding. The appellant told the police that he drove because he “didn’t care”.
Appeal
In addition to the sentencing remarks of the Magistrate I had before me the following documentation that was tendered into evidence; namely:
i.      Affidavit of Michelle Louise Barnes, barrister, sworn, dated 19 August 2015;
ii.      Addendum psychological report by Dr Loraine Lim dated 25 August 2015;
iii.     Affidavit of Ryan Mark Boyle, assistant police prosecutor, sworn, dated 13 August 2015;
iv.     Affidavit of Sharon Fulcher, assistant police prosecutor, sworn, dated 4 August 2015;
v.      Remarks on penalty of former Chief Magistrate Bolton, dated 20 May 2014;
vi.      Apprehension report 14/L77497 of Brandon Seeley.
Personal circumstances
The appellant is currently 22 years old. He is a single man and lives with his parents who are both very supportive. The appellant suffered literacy and reading issues at school which contributed to his decision to leave early. Having left school at 14, the appellant went to work in his father’s construction company as a steel-fixer where he continues to work up to four days per week. The appellant also acts as a subcontractor. It is not disputed that the appellant has a good work record.
During early adolescence, the appellant experienced several traumatic incidents. Sadly, his best friend committed suicide. At about this period of time, the appellant was also witness to an accidental shooting while attending a house party. He was the only bystander to administer first aid to the victim, and later accompanied the victim to the hospital. At the age of 18, the appellant became involved in a dysfunctional relationship with a woman that subjected him to both physical and emotional abuse. On one occasion this led to a presentation to hospital with minor physical injuries after his ex-girlfriend tried to run him over with her car.
In relation to criminal antecedents, the appellant has some unrelated offences, namely; fail to comply with bail agreement and disorderly behaviour. The appellant also has a poor driving record, including; driving unlicensed and disqualification by demerit points.
At the sentencing hearing the appellant tendered without objection a report from the psychologist Dr Lim. I set out the important parts of her report dated 9 June 2015.
Presentation And Behaviour During Assessment
Mr Seeley presented as casually dressed 20 year old male of average height. He had a skinny build, a thin crescent-shaped scar on his forehead, and a tattoo on his right arm. Mr Seeley maintained a mostly sullen demeanour throughout the interview process, which was interspersed with occasional bouts of tearfulness, as well as very limited eye contact. Right from the start, he informed me that he did not need a psychological assessment because he was “fine” and did not require help. He explained that he had been “forced” to attend this appointment by his parents, in the same way that they had “forced” him to obtain a lawyer for his current court matters. It took considerable encouragement for Mr Seeley to agree to participate in the clinical interview, but even so, his responses were terse and superficial. Mr Seeley also declined to complete a number of psychological tests on this occasion. Overall, he was observed to be significantly depressed with a restricted range of emotional affect.
…
Current Charges and Offending History
Mr Seeley was reportedly aware that he had been disqualified from driving a motor vehicle when he was stopped by the police on 06/03/2015. He stated that he had been on his way home from visiting a friend who lived near Prospect Road at the time. When asked why he drove a vehicle knowing that he did not possess a valid driver’s licence, Mr Seeley said, “I drove because I wanted … I wanted to hang out with my mate”. He further remarked, “I took the risk because I don’t care”.
…
Information Obtained from Mr Stephen Seeley (Father)
Mr Stephen Seeley reported that he had observed a progressive deterioration in his son’s mental state and behaviour over the last 2 to 3 years, which he believed, stemmed from Brandon’s relationship with his ex-girlfriend, “Taylor”, whom he described as a “nightmare”. He stated that she was “controlling and manipulative” and frequently perpetrated violence against Brandon.
…
Mr Seeley indicated that the entire family have been extremely supportive of Brandon’s life difficulties and they intend on continuing to support him through his issues regardless of his oppositional and defiant behaviours, as well as frequent run-ins with the law. He noted that Brandon had changed from a “funny, caring, and happy teenager” to someone who is withdrawn, frustrated, angry, and hypersensitive to criticism all the time.
…
Information Obtained from Mrs Yvonne Seeley (Mother)
Mrs Seeley was able to provide vital information in relation to Brandon’s developmental trajectory on this occasion which has help to further enhance my formulation of his clinical picture. She confirmed her husband’s reports of Brandon being a happy and well-adjusted child for the most part of his childhood until the age of 12. Mrs Seeley explained that Brandon has experienced a series of traumatic events in his life beginning from early adolescence, all of which she believed have remained unresolved and have contributed to his current low self-esteem, as well as his withdrawn and angry nature. Reportedly, Brandon’s best friend committed suicide when he was approximately 13 years old. She said that Brandon has flatly refused to discuss his feelings in relation to that suicide even though they have tried to broach that topic with him on numerous occasions. A short while after this event, Brandon reportedly witnessed one of his friends being accidentally shot in the chest with a homemade shot gun, at a house party that he was attending. Mrs Seeley reported that Brandon was just a bystander at the time but he had been the one to apply pressure to the wound and organised for an ambulance to take his friend to hospital.
…
Opinion and Recommendations
...
Mr Seeley’s seemingly typical developmental trajectory, from adolescence to young adulthood, appears to have been was marred by a cumulative number of traumatic incidents which have culminated in his development of mental health difficulties and by association, behavioural problems. Although he actively denies it, Mr Seeley’s clinical presentation on this occasion in conjunction with information provided by his parents, is consistent with a Major Depressive Disorder which has been complicated by unresolved grief and loss issues, as well as psychological trauma. It is my opinion that there is also an underlying element of Social Anxiety which is contributing to his low self-esteem and impacting on his ability to establish constructive friendships and sustain his pre-existing interpersonal relationships in the community. It would appear that Mr Seeley has attempted to mask his mental health problems with the use of dysfunctional and unhealthy behavioural repertoires such as engaging in substance abuse, minimising the overt signs of his difficulties with defensiveness and anger whilst externalising blame for his actions, as well as actively resisting professional assistance.
…
It is therefore my view that Mr Seeley’s current driving offence was a reckless and impulsive act that had been motivated by his overwhelming sense of hopelessness and loss of interest in life, which are the key features of his clinical depression. At the time, he clearly had no thought for the consequences of his actions other than the temporary alleviation of his negative mood which he had hoped to achieve from spending time with a friend.
Mr Seeley is a troubled and conflicted youth who would benefit from long-term intensive psychological and psychiatric assistance to assist him to address his mental health and substance use issues. While he is likely to be facing a term of imprisonment on this occasion, given the repeated and serious nature of his offending behaviours, it is my opinion that prison would only serve to aggravate his pre-existing mental health difficulties and result in his feelings of worthlessness and other negative self-beliefs to become even more firmly entrenched. In that context, Mr Seeley’s risk of recidivism is also unlikely to be reduce as it may lead to a ‘nothing to lose’ mentality which he already displays to a certain extent. Furthermore, he would be unlikely to receive the rehabilitation that he urgently needs in a custodial setting.
The learned Magistrate’s reasons
The learned Magistrate, using section 18A of the Sentencing Act, imposed a single sentence of eight months imprisonment for the two driving offences. The sentence was reduced to five months imprisonment on account of the appellant’s guilty pleas. In his remarks, the learned Magistrate made reference to the circumstances of the offending, and to the appellant’s personal circumstances, including the number of traumatic incidents he experienced as a youth and his subsequent abuse of illicit substances. The learned Magistrate set out in summary form the mental health problems faced by the appellant and gave his reasons for imposing the sentence of five months in these terms;
I have sympathy for you and the difficulties that have led you to this offending but I think it is time that you realise you cannot continually flout the law ... What I am really hoping is that this will be a wakeup call to you, that when you get out you will change your life and you will get the help that is on offer.
(My underlining)
He later stated:
You drove in a contumacious manner on both occasions with no good excuse and really, in my view, a rather poor explanation in that whilst people can rely on their mental state for committing an offence, the problem is that you have committed the offence twice within one week.
(My underlining)
Failure to suspend sentence
This was initially raised as a ground of appeal. However, during the course of submissions, counsel for the appellant accepted[3] that having decided to revoke the suspended sentence and impose a term of imprisonment to be served cumulatively for the fresh offending; the legislation[4] did not permit the learned Magistrate to wholly suspend the sentence. I would therefore dismiss this ground of appeal.
[3] T 20 lines 25-30.
[4] Criminal Law (Sentencing) Act 1988 (SA) s 38(2)(a).
Manifest excess
On appeal, counsel for the appellant submitted that the sentence of five months imprisonment was manifestly excessive. The learned Magistrate correctly took the view that a period of imprisonment was warranted in respect of the two driving offences. Counsel for the appellant in the Court below accepted that an order for imprisonment was appropriate, but submitted that it should be wholly or partially suspended.[5]
[5] Criminal Law (Sentencing) Act 1988 (SA) s 38(2a).
The maximum penalty for the offence of driving whilst disqualified is imprisonment for six months. For a subsequent offence, it is imprisonment for two years.[6] Given the offences represented third and fourth occasions, it was submitted by counsel for the respondent that his Honour imposed an appropriate sentence. Counsel for the appellant argued that the sentence of eight months as a starting point, later reduced to five months on account of the guilty pleas was too high. A number of decisions[7] were referred to, which suggested that, the sentence was well outside the appropriate range for this kind of offending. Emphasis was placed on the fact that the appellant had experienced a number of traumatic incidents as a child, and had suffered from a drug and alcohol problem. More importantly, the appellant had undiagnosed mental health problems and had never sought professional treatment until just prior to sentence.
[6] Motor Vehicles Act 1959 (SA) s 91.
[7] Police v Chilton (2014) 120 SASR 32; Police v Carusi [2002] SASC 240; Wood v Police [2015] SASC 109.
The learned Magistrate held that the driving was in the circumstances contumacious.[8] In sentencing, the learned Magistrate remarked:
The offences were contumacious. They may have been ‘reckless’ but they were in wilful defiance of the instant loss of licence and the direction given by the police officer on that occasion...I have taken into account that you are, in effect, a recidivist offender. You drove in a contumacious manner on both occasions.
[8] Police v Nissen (2014) 120 SASR 50.
As stated by this Court in Police v Cadd & Ors,[9] “contumacious” is given a particular legal meaning, namely, it is;
something more than a mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it.
(My underlining)
[9] (1997) 69 SASR 150, 152.
It was open for the learned Magistrate to make such a finding despite the opinion of Dr Lim. Dr Lim opined that the appellant’s driving offences were;
… reckless and impulsive act[s] that had been motivated by his overwhelming sense of hopelessness and loss of interest in life, which are the key features of his clinical depression. At the time, he clearly had no thought for the consequences of his actions other than the temporary alleviation of his negative mood...
While I accept that the opinion of Dr Lim was important, it does not, of itself, negate the finding of the learned Magistrate that the driving was in the circumstances contumacious.
Dr Lim’s opinions however, still had an important role to play in the sentencing process. They provided the Court with a reason for why the appellant behaved the way he did. It explains why he had the attitude of “total disregard of the disqualification in disobedience to the authority which imposed it”. While a finding that the driving was contumacious is important in sentencing, and in particular to the role of general deterrence, it does not necessarily overwhelm the personal circumstances of the appellant.

While a prison sentence was inevitable, the uncontested evidence showed that the appellant was and had been suffering at the time of the offending a major depressive disorder. Further, the opinion of Dr Lim was that serving a prison term was likely to aggravate the condition as the appellant would not receive treatment while in prison. They are significant personal factors relevant to sentencing.
As mentioned earlier the learned Magistrate, when sentencing the appellant, stated that he hoped his sentence would be a “wake up” call. He further said that the appellant’s mental state was a “rather poor explanation” for committing two offences within a week.
It can be accepted that Magistrates have to sentence offenders quickly and usually in the midst of a very busy list. Sentencing remarks need to be read in that context. However, in my view the two matters mentioned demonstrate that the learned Magistrate failed to have proper regard to the report (uncontested) of Dr Lim.
I accept that in some cases hoping that a sentence may cause a change in behaviour is not an unreasonable expectation. However, in this matter the appellant was clearly struggling with a major depressive illness. He is still a very confused young man who needed assistance rather than a “wake up call”, certainly not a “wake up call” that would be for a period of imprisonment for almost six months. Expecting a person suffering from a major depression to understand that they needed to “wake up”, and that a prison sentence of just under six months may achieve that end, indicates insufficient consideration was given to the opinion of Dr Lim.
Further, the suggestion by the learned Magistrate that the appellant’s mental health issues provided a “poor explanation” for his offending further demonstrates a failure to give appropriate weight to the opinion of Dr Lim. The opinion actually provided an explanation for what was otherwise poor behaviour.
If the learned Magistrate was not inclined to accept the opinion of Dr Lim it would have been preferable for him to have alerted counsel.
The report of Dr Lim was highly relevant to the reason for driving and as such important to the questions of both personal and general deterrence.
In my view, taking into account all of the circumstances in this matter, the starting point of eight months imprisonment was manifestly excessive. I would allow this ground of appeal.
Failure to reduce suspended sentence
A further complaint was advanced on appeal. Counsel for the appellant submitted that the learned Magistrate erred in having determined that there were not proper grounds[10] to refrain from revoking the suspended sentence (21 days); he failed to then consider whether special circumstances existed justifying a reduction in the term of the suspended sentence pursuant to section 58(4) of the Sentencing Act, which provides;
Where a court revokes the suspension of a sentence of imprisonment, the court—
(a) may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b) may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
…
[10] Criminal Law (Sentencing) Act 1988 (SA) s 58(3).
This position was not put to the learned Magistrate during submissions. I would not be prepared to infer that he did not consider such a position simply because he did not mention it.
However, I do not need to consider this ground as due to my earlier finding the appellant has to be re-sentenced which will include consideration of this aspect.
Failure to partially suspend
Again, given my earlier finding I do not need to consider this aspect of the appeal.
Resentence
I have to sentence the appellant afresh. He is now 22 years of age. I note that he spent seven days in custody prior to obtaining bail pending this appeal. Since being released from prison he has made attempts to obtain treatment.
I received an addendum psychological report from Dr Lim. On her re-assessment she considered that the appellant may have had more of a problem with the use of illicit drugs than she realised. Dr Lim made a number of recommendations and in particular that he undergoes psychological counselling.
The appellant initially attended at the psychologist Ms Hunter. There was a reluctance by the appellant to accept that he needed assistance or that indeed he was suffering from any particular depressive or anxiety symptomology.
Eventually the appellant was referred to Dr Carroll, a psychologist. Dr Carroll has embarked on psychological treatment with the appellant and noted that he engaged meaningfully in the therapy.
Dr Carroll assessed the appellant’s cognitive function. She opined that the appellant has intellectual functioning that is best viewed as comprising two distinct components. His verbal functioning is equivalent to that of a 13 year old but his non-verbal abilities fall in the average range.
Taking that fact into account and the history given to her by the appellant she stated:[11]
With poor verbal skills and being the youngest and possibly most intellectually challenged of 3 siblings, the young Mr Seeley found himself being criticised and directed, often feeling frustrated and resulting in him feeling poorly about himself. This is a common cycle/experience for children with poor verbal skills/learning issues. Mr Seeley’s frustration would escalate to anger and aggression and, I understand from Mr Seeley, that this served him well at home in that his anger resulted in him getting what he wanted/things his way. Anger and aggression are very primitive responses that require little to no thinking and anger works well in small groups and families to obtain a positive result.
Mr Seeley agreed with my diagnosis and opinion that he learned when young to use anger to solve problems including emotional problems. In my opinion, based on the history provided, Mr Seeley found it easier to control his environment using aggression than by facing facts and talking issues through.
I concur with Dr Lim that Mr Seeley is a troubled and conflicted youth whose depression and anxiety surfaces more in the form of aggression. When distressed and challenged, he tends to “act out” rather than “act in”. In my opinion, he demonstrates poor emotional intelligence, having little understanding of his own emotional experiences and how to handle himself emotionally. He is also poor at understanding another’s perspective and working cooperatively and respectfully alongside those with a different point of view.
[11] Dr Carroll's report dated 5 June 2016 p 7.
In her report of 29 August 2016 Dr Carroll was of the opinion that the appellant was managing “himself better”.[12] She noted that he had participated meaningfully in therapy but that the therapy was in its relative infancy and that such therapy should continue.
[12] Dr Carroll's report dated 29 August 2016 p 4.
Dr Carroll was also of the view, as was Dr Lim, that if the appellant was required to serve a further custodial sentence, his poor mental health was likely to be aggravated and his poor self-esteem further exacerbated.
Since being released on bail the appellant has not reoffended and indeed he has not reoffended since 6 March 2015. Of more recent times he has endeavoured to manage his anger by focussing on work, boxing and weight lifting. He is preparing to undertake a three day Master Builder’s Association contractor’s license course for certification in steel fixing and concreting. He is currently working in that industry.
I will deal first with the suspended sentence imposed by the former Chief Magistrate on 20 May 2014. Obviously the psychological reports were not available for consideration when Chief Magistrate Bolton imposed her sentence. Therefore a consideration of section 58 of the Sentencing Act is required.
Mr Henchliffe, and later Ms Shaw QC for the appellant accepted that the bond had to be estreated. That concession was properly made. However, it was submitted that in the circumstances of this case special reasons existed and I should reduce the term of the suspended sentence pursuant to section 58(4) of the Sentencing Act.
I have read the remarks of the former Chief Magistrate made when sentencing the appellant on 20 May 2014. There is no mention in her remarks about the appellant suffering from a major depressive disorder, anxiety or indeed any problems with his cognitive functioning. That is hardly surprising as these matters were not diagnosed at the time although they were certain to have been present and obviously would have been relevant to sentencing. The former Chief Magistrate was not aware of this condition at the time of sentence.
I have considered the relevant authorities[13] in deciding the question of whether special circumstances exist pursuant to section 58 of the Sentencing Act.
[13] R v Buckman (1998) 47 SASR 303; R v Pham [2003] SASC 386.
I am satisfied that special reasons exist here to reduce the sentence. Undoubtedly, at the time of the offending the appellant was suffering from serious but undiagnosed mental health issues I described earlier in these reasons. They have subsequently become apparent, diagnosed and appropriate treatment undertaken. In my view the additional psychological information and the appellant’s psychological issues render the original sentence inappropriate. Had the former Chief Magistrate been aware of those existing mental health problems is it likely that she would have imposed a lesser sentence.
In all of those circumstances I reduce the sentence imposed to one of seven days imprisonment. The appellant has already served that sentence.
In relation to the two offences of driving whilst disqualified, like the learned Magistrate, I will use section 18A of the Sentencing Act and impose one sentence. Had it not been for the appellant’s pleas of guilty, I would have imposed a head sentence of five months imprisonment. The learned Magistrate accepted that the appellant was entitled to up to 40 per cent discount for his pleas of guilty. To take into account the pleas I reduce the sentence to one of three months imprisonment.
Taking into account all of the matters mentioned I find good reason exists to suspend that sentence and I will do so on the condition that the appellant enter into a bond to be of good behaviour for a period of 18 months. It will be a condition of the bond that he be under supervision of a community corrections officer for the period of the bond and that he attend such psychological counselling as reasonably recommended by his assigned community corrections officer.
Order
The sentence of the learned Magistrate is set aside. In relation to the suspended sentence of 21 days imposed by the former Chief Magistrate I estreat the bond. I find special circumstances exist and reduce the sentence of imprisonment to seven days. I note the appellant has already served that term.
In relation to the two counts of drive whilst disqualified, I impose a sentence of three months imprisonment. That sentence is to be suspended on the appellant entering into a bond to be of good behaviour in the sum of $500, for a period of 18 months. It will be a condition of the bond that the appellant be under the supervision of a community corrections officer for the period of the bond and attend such psychological counselling as reasonably recommended by his community corrections officer.