SELLERS v Police - [2004] SASC 379

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SELLERS v POLICE
Judgment of The Honourable Justice Besanko (ex tempore)
19 November 2004
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 - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against sentence imposed by a Magistrate – the appellant was convicted of driving whilst disqualified from holding or obtaining a licence, without reasonable excuse contravening a term or condition of a bail agreement, driving an unregistered motor vehicle and driving a motor vehicle contrary to the terms of a defect notice – where the appellant was on parole when he committed the offences – where the Magistrate sentenced the appellant to six months imprisonment cumulative upon the unexpired portion of parole creating a new head sentence of one year, 10 months and 21 days and fixed a non-parole period of 15 months – where the appellant had a significant criminal record, particularly in terms of driving offences – whether the sentence imposed, and particularly the non-parole period, was manifestly excessive – whether the Magistrate failed to take into account, as part of the appellant’s personal circumstances, the unexpired portion of the appellant’s previous sentence – appeal dismissed.
Magistrates Court Act 1991 s 42; Motor Vehicles Act 1959 s 91, 9; Bail Act 1985 s 17; Road Traffic Act 1961 s 160, referred to.
House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; R v McFarlane (1999) 105 A Crim R 121, considered.

SELLERS v POLICE
[2004] SASC 379
Magistrates Appeal

BESANKO J: This is an appeal against a sentence imposed by a Magistrate. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
The appellant was charged on complaint with four offences committed on 8 August 2004. The first charge was that the appellant drove a motor vehicle on a road, namely Martins Road while he was disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act 1959 (“MVA”).
The second charge was that the appellant, without reasonable excuse, contravened a term or condition of a bail agreement entered into by him at Elizabeth on 4 August 2004, contrary to s 17 of the Bail Act 1985. The third charge was that the appellant drove a vehicle, namely a motor vehicle, on a road, namely Martins Road, the registration of such motor vehicle not then being in force, under the provisions of Part II of the MVA, contrary to s 9(1) of the MVA. The fourth charge was that the appellant drove a vehicle, namely a motor vehicle, on a road, namely Martins Road, contrary to the terms of a defect notice issued under s 160 of the Road Traffic Act 1961 (“RTA”), contrary to s 160 of the RTA.
The appellant pleaded guilty to the charges.
The appellant was on parole when he committed the offences. One of the designated conditions of his parole was that he not drive without a licence. The unexpired portion of the sentence was one year, four months and 21 days. The Parole Board of South Australia cancelled the appellant’s parole on 19 August 2004.
On 2 September 2004, the Magistrate sentenced the appellant in relation to the four offences referred to above. When sentencing in relation to count one, the Magistrate said that he took into account count two. He sentenced the appellant to imprisonment for six months, cumulative upon the unexpired portion of parole. The new head sentence was one year, 10 months and 21 days from 19 August 2004. The Magistrate fixed a non-parole period of 15 months from 19 August 2004. In relation to count two, the Magistrate convicted the appellant without penalty, although he said he had taken that count into account when imposing sentence in relation to count one. In relation to counts three and four, the Magistrate convicted the appellant without penalty.
I turn to consider the circumstances surrounding the offending and the appellant’s personal circumstances. They may be briefly stated. At about 10.40 pm on Sunday, 8 August 2004, police officers witnessed a motor vehicle travelling west on Martins Road, Salisbury. The vehicle turned left into the Little Para Hills Golf Course, the entry of which was blocked by a boom gate. The vehicle stopped and the appellant, who was the driver of the vehicle, alighted from the vehicle and ran. He was chased by police officers and arrested on Onkaparinga Drive, Salisbury.
The Magistrate was told by counsel for the appellant that he was driving on the night of the offence because the original driver, Mr Benjamin Crawford, became intoxicated. The Magistrate was told that the appellant does not drink alcohol. It was conceded by the appellant that the offending is contumacious.
The appellant was disqualified from driving a motor vehicle from 1 March 2002 to 28 February 2007. As I have said, at the time he committed the subject offences, the appellant was on parole, with a designated condition that he not drive a motor vehicle without a licence. The vehicle being driven by the appellant had been unregistered since 21 July 2004. A defect notice had been issued in relation to the vehicle on 22 July 2004, and it provided that the vehicle could be driven for only one hour after that time, to take it for repairs. The vehicle had been defected for unsafe tyres, lights not working, warning device not working, body unsafe, and unsafe steering, handles and locks. Repairs to the vehicle had not been completed as specified.
The appellant was born on 14 June 1981 and was 23 years of age at the time of the subject offences. He is not married and he has no children. The appellant has completed a pre-vocational automotive course at an educational institution and had work available, upon his release from prison, at Ingham’s Chickens. The appellant has a bad criminal record, particularly in terms of driving and his use of motor vehicles.
His record may be summarised as follows:
(1)On 1 March 2002, the appellant was disqualified from driving for a period of five years on a second offence of driving in a reckless manner;
(2)The subject offence was the appellant’s seventh offence of driving while disqualified and was his fifth such offence in a period of 16 months, and his third such offence in a period of eight months;
(3)The appellant has had the benefit of good behaviour bonds on three occasions and, on each occasion, he has failed to comply with the bonds;
(4)The appellant has been paroled on four occasions and, on each occasion, has breached his parole;
(5)The subject offences involved a breach of the appellant’s parole and a breach of the bail agreement he entered into on 4 August 2004.
I turn now to the Magistrate’s remarks on penalty. The Magistrate referred to the four offences. He said that the appellant had an appalling record in that regard. He noted that the appellant had had previous periods of imprisonment which would appear to have had little deterrent effect upon him. He noted that the appellant was sentenced in relation to offending on 20 January 2004 for two counts of driving disqualified to commence 30 April 2004. He noted that the appellant came before the court charged with a further offence of driving disqualified some four months later, which must have been very shortly after his release on parole.
The Magistrate said:
“The defendant takes the view that he does not have to have regard to the orders of the court or the legal system. There is nothing by way of mitigation that has been put to me in relation to this offending.”
The Magistrate then proceeded to impose the penalties to which I have already referred.
The appellant submits that the sentence imposed by the Magistrate, and, in particular, the non-parole period, is manifestly excessive. The appellant must identify an error of the relevant type. The principles as to the type of error which must be shown before this Court will intervene are well-known. I refer to House v The King (1936) 55 CLR 499 at 505, and Dinsdale v The Queen (2000) 202 CLR 321 at 324-325.
The appellant referred to R v McFarlane (1999) 105 A Crim R 121 and said that the unexpired portion of the previous sentence was part of his personal circumstances which ought to be taken into account in considering the sentence which was imposed. The appellant submitted that the Magistrate failed to take into account, as part of his personal circumstances, the unexpired portion of the previous sentence.
I do not accept the appellant’s submission. The appellant has, as noted by the Magistrate, an appalling record in terms of driving motor vehicles. The first offence was committed while the appellant was on parole and it was a condition of the parole that the appellant not drive without a licence. As I have said, it was also a breach of his bail agreement entered into only four days earlier. The sentence imposed by the Magistrate was within the range of appropriate sentences, having regard to the appellant’s record. Although the appellant is a young man, he has what the Magistrate accurately described as an appalling record. He has been given short non-parole periods in the past, but he has continued to act in blatant disregard of the law. In my opinion, the Magistrate did not act upon a wrong principle, nor did he allow extraneous or irrelevant matters to guide or affect him. He did not fail to take into account a material consideration. His sentence is not unreasonable or plainly unjust. In those circumstances, the appeal must be dismissed. I dismiss the appeal.