Soroba v Police - [2005] SASC 259

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SOROBA v POLICE
Judgment of The Honourable Justice Layton
18 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant charged and pleaded guilty to three sets of driving offences on three different complaints over a 5 month period- cumulative penalty of licence disqualification for three years and nine months imposed by a magistrate- whether manifestly excessive- whether magistrate failed to have regard to the totality of the sentence- whether proceedings before the magistrate were fair as appellant unrepresented- financial and personal circumstances of the appellant considered- appeal allowed- sentence to be served concurrently.
Road Traffic Act 1961 (SA) s 42, s 45, s 47; Motor Vehicles Act 1959 (SA) s 98aab(2); Australian Road Rules r 73(2)(a), referred to.
Cooling v Steel (1971) 2 SASR 249; Cronssen v R (1936) 55 CLR 509; Cross v Police [2001] SASC 47; Day v Conn (1979) 22 SASR 372; Galic v South Australian Police (Unreported, Supreme Court of South Australia, Debelle J, 24 January 1997, Judgment No S5992); Griffiths v The Queen (1989) 167 CLR 372; Joanni v Police [2004] SASC 225; Mill v The Queen (1988) 166 CLR 59; Pietkun v Police (Unreported, Supreme Court of South Australia, Perry J, 15 December 1997, Judgment No S6490); Police v Nowak (2000) 76 SASR 551; R v Rossi (1988) 142 LSJS 451; R v Power [2003] SASC 288, considered.

SOROBA v POLICE
[2005] SASC 259
Magistrates Appeal

LAYTON J: This is an appeal against the decision of a Magistrate, made on 8 March 2005 imposing a cumulative penalty of licence disqualification of three years and nine months for a series of driving offences committed by the appellant in February, May and July of 2004.
The Facts
The appellant was charged and pleaded guilty to three sets of driving offences on three different complaints, namely 7 February 2004 (AMC-04- 4056) 27 May 2004 (AMC-04-12549) and 17 July 2004 (AMC-04-15913).
One count was subsequently withdrawn by the prosecution,[1] and the appellant pleaded guilty to and was tried on the following nine offences:
[1] (AMC-04-4056) 7 February 2004 Leave granted to dismiss for want of prosecution Count 1: failure to stop before reaching stop line at red traffic light.
On 7 February 2004 (AMC-04-4056), four offences, namely, failure to comply with a request to stop a vehicle contrary to s 42 of the Road Traffic Act 1961 (SA) (“the RTA”); driving without due care contrary to s 45 of the RTA; failure to comply with a direction of an alcotest/breath analysis contrary to s 47e of the RTA and failure to carry or produce a licence or permit when requested contrary to s 98aab(2) of the Motor Vehicles Act 1959 (SA) (“the MVA”).
On 27 May 2004, three offences, namely, driving with a blood alcohol level of 0.278 grams in a hundred millilitres of blood contrary to s 47b of the RTA; failing to give way to a vehicle travelling on a continuing road contrary to Rule 73(2)(a) of the Australian Road Rules and disobeying a provisional licence condition by driving with an excess concentration of alcohol contrary to s 81a of the MVA.
Two offences committed on 17 July 2004 at Mile End, namely driving with a blood alcohol level of 0.275 grams in a hundred millilitres of blood contrary to s 47b of the RTA and disobeying a provisional licence condition by driving with an excess concentration of alcohol contrary to s 81a of the MVA.
Preliminary issues
Four issues arose for consideration.
First, was an extension of time in which to appeal, which was granted with the consent of the parties.
Second, was an amendment to the grounds of appeal, which was also granted with the consent of the parties.
The third issue concerns the status and content of an affidavit sworn by the appellant and filed on 6 June 2005. This affidavit deposed to a number of issues and also annexed documents which were said to have been before the Magistrate at the time of sentencing. Counsel for the Director of Public Prosecutions (DPP) accepted that the five exhibits to the affidavits were indeed before the Magistrate and the appeal proceeded on that basis. Paragraph 8 of the said affidavit was a matter which was contradicted by paragraph 10 of an affidavit of Edward Collins, police prosecutor, filed herein on 20 May 2005, on the topic of whether or not the appellant had made oral submissions before the Magistrate. It was agreed by counsel for both parties that it was unnecessary for me to deal with this differing contention as both parties accepted that if the appellant had made any oral submissions they would have provided no further information than that which was contained in the documentation before the Magistrate. Paragraphs 9 and 10 of the said affidavit of the appellant were not the subject of contention, and for reasons set out hereafter, they are not relevant to the reasons for this decision. I therefore received this affidavit on that basis for the purposes of this appeal.
The fourth issue concerned a medical report dated 6 February 2005 which had been filed by the appellant at a point after the appeal had been instituted but before he was legally represented. It was agreed by both appellant and respondent counsel that this was not a matter which amounted to “further evidence” on appeal and merely emphasised certain aspects of the material which was already before the Magistrate at the time of sentencing. I therefore do not receive this document on this appeal.
The Legislation
Section 47B of the RTA, provides the penalties for offences which involve a concentration of alcohol which is a category 3 offence, as was the case at bar, for the 27 May and 17 July offences:[2]
[2] Road Traffic Act 1961 (SA) s 47A Interpretation- “A category 3 offence means an offence against s 47B(1) involving a concentration of alcohol of .15 grams or more in 100 millilitres of blood.”
47B—Driving while having prescribed concentration of alcohol in blood
(1)     A person must not—
(a)    drive a motor vehicle; or
(b)    attempt to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.
Penalty:
For a first offence—
…
(c)being a category 3 offence—a fine of not less than $700 and not more than $1 200.
For a second offence—
…
(c)being a category 3 offence—a fine of not less than $1 200 and not more than $2 000.
(3)     Where a court convicts a person of an offence against subsection (1) (other than a category 1 offence that is a first offence), the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i) in the case of a first offence—
…
(B)being a category 3 offence—for such period, being not less than 12 months, as the court thinks fit;
(ii) in the case of a second offence—
…
(C)being a category 3 offence—for such period, being not less than 3 years, as the court thinks fit;
Grounds of Appeal
The amended grounds of appeal (the notice of appeal) contain three grounds. First, is that the licence disqualification of 45 months, based on cumulative sentences in respect of the three sets of driving offences, was manifestly excessive. Second, the Magistrate failed to give adequate consideration to the principle of totality. Third, the Magistrate failed to ensure that the proceedings were fair to the appellant who was unrepresented at the time.
The first two grounds of appeal are linked and I will therefore consider them together.
Totality and Manifestly Excessive
Sentencing principles
The principle of totality is well accepted and is a fundamental principle of sentencing. The principle has been articulated in both the High Court and in this Court.
The High Court in Mill v The Queen[3] approved of the description of the principle of totality in Thomas, Principles of Sentencing (2^nd ed, 1979) at pp 56-57 (omitting references):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [‘]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.
[3] (1988) 166 CLR 59.
In Griffiths v The Queen[4] Gaudron and McHugh JJ stated:
It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: …This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of head sentence appropriate to the total criminality with all other sentences to be served concurrently. In Attorney-General v Tichy King C.J. said:
The essential thing to be borne in mind is that if the sentences are made consecutive there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence.
But as Wells. J pointed out in the same case:
The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[4] (1989) 167 CLR 372 at 393 –394.
The principle of totality has also been accepted as applying to licence disqualification as well as to a period of imprisonment.[5]
[5] Joanni v Police [2004] SASC 225 per Gray J who in turn cited Warner, Sentencing in Tasmania, (2^ndedn., 2002) at 172 [6.321].
More recently, Debelle J noted in Galic v South Australian Police:[6]
The period of three years disqualification ordered for each offence was the prescribed minimum. It was open to the magistrate to order a higher period of disqualification. However, it is apparent that the magistrate has failed to have regard to the totality of the order which he had made. Although the magistrate was entitled to treat each of the offences as having occurred on quite separate occasions and, to that extent, to impose orders which operated cumulatively, it was equally necessary for the magistrate, having ordered the periods of disqualification, to have regard to the totality of the criminality involved in the appellant’s conduct and to determine whether the overall penalty was, in all the circumstances, appropriate.
[6] (Unreported, Supreme Court of South Australia, Debelle J, 24 January 1997, Judgment No S5992).
In relation to whether or not a sentence or period of disqualification is manifestly excessive, some further principles need to be considered.
In the situation where the legislation provides for a minimum period of disqualification for each offence, it has been said that the order shall ordinarily be cumulative.[7] Further, where there is more than one offence committed under s47B of the RTA a relevant factor to take into account is the intention of Parliament in imposing mandatory disqualification for each such offence.[8] However it is still a matter for discretion in all of the circumstances and the real issue is whether the periods of disqualification adequately reflect the seriousness of the particular offence.[9]
[7] Police v Nowak (2000) 76 SASR 551.
[8]Police v Nowak (2000) 76 SASR 551; Pietkun v Police (Unreported, Supreme Court of South Australia, Perry J, 15 December 1997, Judgment No S6490)
[9] Police v Koolmatrie (2002) 218 LSJS 173.
For a sentence or penalty to be manifestly excessive it must be so out of the range of appropriate sentences for that type of offence that there was an error in the exercise of the courts discretion.[10]
[10] Cranssen v R (1936) 55 CLR 509; Griffiths v The Queen (1989) 167 CLR 372.
The characterisation of a sentence as being manifestly excessive has also been expressed as having an overall effect which is “so crushing as to call for merciful intervention”, as King CJ described in R v Rossi[11] in the context of the principle of totality:
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect …
[11] (1988) 142 LSJS 451 at 453.
This approach was taken by Perry J in the case of Pietkun v Police.[12]The case concerned a 20-year-old university student who appealed against licence disqualifications each of three years which were imposed on separate counts of riding a motor bicycle at a speed dangerous to the public. The offences had been committed on successive nights, namely four counts on one night and a separate complaint on the following night. He also had prior convictions for similar offences within the previous five years. There were two periods of licence disqualification for three years which were cumulative and a fine of $1000. For reasons set out in the judgment, Perry J concluded that "the cumulative nature of the two periods of suspension operates excessively harshly in all of the circumstances".[13]
[12] (Unreported, Supreme Court of South Australia, Perry J, 15 December 1997, Judgment No S6490)
[13] Ibid at 5.
When considering whether a sentence is manifestly excessive, there are further elements of specific and general deterrence. In the case of Galic, a decision of a magistrate to disqualify the appellant from driving for nine years on three counts of driving under the influence was the subject of an argument on appeal as to whether the sentences served cumulatively was manifestly excessive. In holding that the licence disqualification was manifestly excessive, Debelle J had regard to the observations of Mitchell J in Day v Conn;[14]
In so far as the disqualification from holding a driver’s licence may act as a general deterrent, lengthier disqualifications may have some effect upon those who would otherwise offend although the effect is not likely to be proportionate to the length of the disqualification. In so far as it constitutes a deterrent of the defendant it is liable to be self-defeating…The balance must be struck between imposing such penalty as will reflect the degree of blame which should be attached for a particular breach of the law and at the same time, will act as a deterrent and imposing a penalty which is so severe that it may lead the defendant into a further breach of the law and which in any event raises the penalty beyond what is appropriate for the particular offence committed by the particular individual.
[14] (1979) 22 SASR 372 at 375.
Debelle J, whilst considering the offences as serious, noted that the magistrate did not have regard to the totality of the orders of disqualification on the appellant and that having regard to his circumstances particularly his matrimonial difficulties and the relatively short space of time in which the offences occurred, the disqualification periods should be served concurrently not cumulatively.
Circumstances of the offending
At the hearing before the Magistrate, the appellant was unrepresented. The prosecutor sought leave to withdraw count one on the first set of offences occurring on 7 February 2004. The other charges were read and the appellant entered a plea of guilty.
The circumstances of the appellant’s offending are set out in the said affidavit of Edward Collins. In paragraph 8 of that affidavit, he deposed that although he could not now recall word for word what he said, he did believe that the submissions he made were to the following effect:
In relation to AMC-04-4056
…Your Honour, at about 2.15 am on Saturday 7 February 2004 at Adelaide Police, whilst on uniform mobile patrol in a marked Police vehicle, were stationary at a red stop light at the intersection of Frome Road and North Terrace in traffic heading south. At this time the light changed to green and just as Police were about to drive off a blue Ford Laser sedan, SA registration VFV 519, drove into the intersection against the red light for traffic heading east.
Police immediately followed the vehicle and activated the dome lights. The vehicle continued to drive. Police then activated the vehicle horn and sirens and flashed their headlights. The defendant did not stop the vehicle but continued to drive. Police pulled up alongside the driver as he was driving and wound the window down and called out to the defendant to pull over. The defendant looked over at Police quickly and continued to drive. Police pulled back in behind the vehicle still with dome lights and sirens activated and the vehicle continued to drive turning south into Hutt Street. At this time a second marked Police vehicle drove alongside the passenger side of the defendant’s vehicle, also with dome lights activated. The vehicle continued to drive. The defendant was straddling lanes, accelerating and then slowing down, but not stopping. The vehicle slowed down when the second Police vehicle drove in front of the defendant’s vehicle. The defendant initially stopped his vehicle as the first patrol pulled in behind him, however he then accelerated into the Police vehicle in front, colliding with that vehicle.
Police ran to the driver’s door of the defendant’s vehicle where the keys were taken from the ignition and the defendant taken out of the vehicle.
Police advised the defendant that he was to submit to an alcotest and he was directed on how to do so. The defendant failed to blow correctly. The defendant was shown how it was done by one of the Police officers and given another try. The defendant still failed to blow correctly.
The defendant was not carrying his provisional licence as required by is conditions as a Probationary licence holder. The defendant’s only identification was a pension card which did contain a photo.

In relation to AMC-04-12549
Your Honour, at about 11.40 am on Thursday 27 May 2004 the defendant drove a blue Ford Laser sedan, SA registration VFV 519, south east on Victoria Street, Klemzig, and failed to give way to a north west bound vehicle on O.G. Road. As a result a road crash occurred. Police attended the scene and detected a moderate smell of liquor about the defendant. The defendant was submitted to an alcotest and recorded a positive result. A subsequent B.A. test recorded a result of 0.278. The defendant produced his provisional licence as proof of identity.
The defendant stated that he was the driver of the blue Ford Laser sedan involved in the crash and in answer to a question as to his failure to give way he stated that the other vehicle was travelling about 90 km/h. He stated that he had only consumed two small glasses of Lambrusco after 11.00 am the previous day and that he suffered from rheumatism and severe headaches. The defendant stated that he was taking sandomigran for the headaches. In reply to the charges he stated: “You are the law. The law is the law. There is nothing I can do. Nobody is above the law”.
In relation to AMC-04-15913
Your Honour at about 7.15pm on Saturday 17 July 2004 the accused drove a motor vehicle on Henley Beach Road, Mile End where he was stopped by a Random Breath Test unit. The defendant submitted to an alcotest and recorded a positive reading. Police presented the defendant to the Breath Analysis operator where the defendant submitted to a breath analysis. The defendant recorded a result of 0.275. Police further established that the defendant held a Provisional drivers licence. The defendant was cooperative and signed the police notes.
In addition, the prosecutor advised the Magistrate that the appellant had no prior offending history and made no further penalty submissions.
The appellant tendered five documents before the Magistrate, as follows:
·A letter addressed to the Magistrate dated 30 September 2004 signed by the appellant (being annexure “A” to the affidavit of the appellant sworn on 3 June 2005);
·Three letters from the appellant’s doctor, Dr R Tawi dated 25 June 2004, 26 July 2004 and 30 August 2004 (being annexures “B”, “C” and “D” of the affidavit of the appellant);
·A preliminary assessment summary from the Adelaide Magistrates Court Mental Health Diversion Program dated 19 January 2005 (being annexure “E”).
The Magistrate after hearing the submissions and receiving the documentation, adjourned the matter until 2.15 pm later on the same day, in order to consider penalty.
On resumption, the Magistrate sentenced the appellant. A summary of the sentence is contained in paragraph 4 of an affidavit of Andrew Paech sworn herein on 18 May 2005, in the following terms:
His Honour proceeded to sentence the appellant. His Honour ordered that the appellant be convicted on all counts.
With respect to court file AMC-04-4056, His Honour ordered that in relation to Count 2 the appellant be fined $100.00. In relation to Count 3 His Honour ordered that the appellant be fined $100.00. In relation to Count 4 His Honour ordered that the appellant be fined $700.00 and have his licence disqualified for a period of 12 months. With respect to Count 5 the appellant was convicted without further penalty.
With respect to court file AMC-04-12549, His Honour ordered that in relation to Counts 1 and 3 that the appellant be fined $700.00 and have his licence disqualified for a period of 15 months, cumulative upon the licence disqualification imposed on court file AMC-04-4056. In relation to Count 2 His Honour ordered that the appellant be convicted without further penalty.
With respect to court file AMC-04-15913, His Honour ordered that in relation to Count 1 the appellant be fined $700.00 and have his licence disqualified for a period of 18 months, cumulative upon the licence disqualification imposed on court files AMC-04-4056 and AMC-04-12549. In relation to Count 2 His Honour ordered that the appellant be convicted without further penalty.
It is to be noted that with regard to AMC-04-12549, the affidavit of Andrew Paech refers to the Magistrate ordering a fine and licence disqualification in respect of counts one and three and dismissing count two. There appears to be some confusion in the Magistrate’s reasons for decision as to which counts the penalties related. In paragraphs 6 and 7 of his remarks on penalty, the Magistrate does not refer to count three at all. In the absence of any contrary information, I accept the most likely explanation is that set out in the affidavit of the prosecutor to the effect that count three was included in the penalty for count one in relation to that set of offences.
It is to be noted that having regard to all three sets of offences, the totality of the licence disqualification was 45 months and the total penalty for all fines was a sum of $2,300. The quantum of this penalty was raised by me at the hearing on this appeal. Counsel for the appellant responded that his client did not seek to alter the fines as any alternative, such as community service, would inhibit his client’s ability to be able to seek employment, which is his goal. The appellant on appeal therefore did not seek to challenge the total amount of the fines as manifestly excessive in spite of his impecunious circumstances. The appeal was limited to the cumulative effect of all of the licence disqualification periods for the offences.
The documentation tendered by the appellant before the Magistrate contained a number of important background and mitigating circumstances of the appellant which can be summarised as follows.
Circumstances of Offender
The appellant is a 29-year-old Sudanese man who left Sudan in 1994, arrived in Australia in October 2002 as a refugee, and is now a permanent citizen in Australia. He was a victim of torture and trauma in Sudan as a consequence of being raised as a Christian in a country which had been ruled by an Islamic regime. Following a student demonstration he was imprisoned for an indeterminate period during which he endured regular beatings and systematic torture. He escaped from prison and went to Kenya. He left all of his family behind and soon after escaping from Sudan, he heard that his mother and father had been killed, apparently as reprisal for his escape. He also learned that three of his brothers had fled to Uganda as refugees.
After moving to Adelaide, the appellant found employment in the kangaroo meat processing industry and financially assisted his three brothers. He hoped his brothers would be able to join him in Australia.
In early 2004, the appellant had devastating news that all three of his brothers had been killed by poisoning as part of the ongoing conflict in the region. This news, in addition to all of the trauma he had already suffered, contributed to the commission of these offences.
The medical reports and also the preliminary assessment from the Magistrates Court Diversion Program evidenced that the appellant was experiencing symptoms of a major depressive disorder in addition to chronic symptoms of Post Traumatic Stress Disorder. His medical practitioner described him as almost suicidal and the preliminary Assessment Summary referred to the appellant having had admissions to hospital following possible overdoses of alcohol and medication. His medical practitioner indicated that as at 30 August 2004, as a result of treatment, the appellant was motivated to get better, he was almost 80 per cent better and was committed to attending therapy sessions. The medical practitioner reported that the appellant was visiting him twice per week and was receiving antidepressant medication as well as counselling. It was also reported that he enjoyed the support of his local Christian church.
Documentation before the Magistrate also made some reference to the effect of any licence disqualification on the appellant’s ability to be employed, particularly having regard to the extent of his financial indebtedness. In the letter addressed to the Magistrate, Exhibit A, there is reference to his licence having been recently reinstated, and of the appellant’s intention in September 2004 to go back to work as a process worker at Gourmet Poultry. The medical report dated 30 August 2004 being Exhibit D, stated,
…it is important that his driving license be restored to him so he could easily get to work to earn some money. This would definitely have a positive effect on him, as it would relieve him of some financial stress and hopefully would help prevent relapse of depression.
The medical report, Exhibit E also referred to the appellant being “unemployed due to difficulties travelling to the kangaroo meat works…”
Approach of the Magistrate
The Magistrate in his reasons for penalty made specific reference to a number of factors of personal circumstance in paragraphs 1 and 2 of the remarks on penalty. Curiously the Magistrate refers to the appellant being a 35‑year-old man whereas the appellant’s submission to the Magistrate was that he was aged 29. Nothing specifically turns on this. The Magistrate refers to the circumstances of the appellant’s refugee status and of his family as well as his alcohol consumption, depression and one suicide attempt. The Magistrate accepts that after finding out about the death of his brothers, the appellant became reckless and this included the occurrence of the drink driving offences before the court. His economic situation was also noted. The Magistrate also stated “I will treat you as leniently as the law allows me to be.”[15]
[15] South Australia Police v Soroba (Remarks on Penalty of Mr R Snopek SM 8 March 2005) at [2].
I am conscious of the fact that matters in the Magistrates Court are numerous and that it is not always possible for a magistrate to set out each and every matter considered by him or her in the process of sentencing.[16] Having said that, I note that the following matters are not reflected in the Magistrate’s reasons:
[16] Observations made by Olsson J in Cross v Police [2001] SASC 47 at [21] “It is important not to be unduly critical and wise after the event in relation to busy magistrates who have to grapple with very lengthy lists on a day to day basis”.
·The Magistrate makes no reference to the clear remorse expressed by the appellant in his personal letter to the Magistrate as well as noted by the Magistrates Court Diversion Programme Assessment Summary.
·Related to this matter, the Magistrate does not refer to the fact that the appellant has since July 2004 given up alcohol and also has not been involved in any further driving offences.
·The Magistrate does not advert to the effect of a long period of disqualification on the appellant’s ability to obtain and retain employment. This is also connected to the means by which the appellant is to pay the totality of the fines imposed namely $2,300.00.
The absence of a remark on each of these matters taken individually does not necessarily mean that the individual matter was not taken into account by the Magistrate. However, the absence of all of these factors, which are very important features of this particular case, does suggest that insufficient regard was given to these factors. This is probably most relevant when considering the issue which was raised on appeal, namely, whether the Magistrate failed to have regard to the totality principle in sentencing.
It would appear that notwithstanding the Magistrate’s expressed intention to treat the appellant as leniently as the law allows, his Honour nonetheless proceeded to impose fines which were at the level of the minimum on the major offences and were close to the minimum in relation to the disqualification period and then mathematically added them together. Apart from mentioning in paragraph 8 that the total licence disqualification was 45 months, there is no overall reference to the total effect of either the licence suspension or of the significant amount of the fines.
The Magistrate does not appear, after considering the minimum sentences in each set of driving offences, to have “stood back” and looked at the totality of the criminality involved in the appellant’s conduct and then determine whether the overall penalty was in all the circumstances appropriate.[17] The failure to consider the principle of totality in deciding whether or not to make all of the disqualification periods cumulative or whether to make them either partially or totally concurrent, suggests a failure to have regard to this important principle of sentencing. The net result is that in all of the circumstances of the offending and the particular circumstances of the appellant, the totality of the length of disqualification was, in my view, excessive having regard to the gravity of the total criminal conduct of the appellant.
[17] Joanni v Police [2004] SASC 225.
In particular, the offending took place over a relatively short period, and they were separate sets of offences but linked as to their nature and as to their cause. Fortunately, no injury was caused to any third person. The conduct of the appellant, following the third set of offences, demonstrates significant rehabilitation.
In all of the circumstances, balancing general deterrence, personal deterrence and the fact that there are statutory specific minimum disqualification periods set with regard to each of the major offences, the licence disqualification which I consider should have operated on the appellant is that all three disqualification periods should have been made concurrent rather than cumulative. The appellant is already suffering significantly by reason of the monetary penalty imposed.
By reason of the above, I consider it appropriate to allow the appeal for the limited purpose of making the total licence disqualification a period of 18 months. This would be achieved by making the disqualification period with regard to the first two sets of offences, to be cumulative with the disqualification period for the third set of offences.
Procedural Fairness
As a consequence of the above conclusion, there is no need for me to specifically address the third ground of appeal. I do, however, express my concern that it appears that the Magistrate did not invite the appellant to seek legal advice, particularly when the appellant in his written submissions adverted to factors which suggested that the offence of failure to submit to an alcotest may have been the subject of a defence. Nor did the Magistrate appear to indicate in advance the potentiality of a long total period of disqualification.[18]
[18] See example of approach indicated in Peitkun v Police (Unreported, Supreme Court of South Australia, Perry J, 15 December 1997, Judgment No S6490) at 4 and the principles expressed in Cooling v Steel (1971) 2 SASR 249.
Order
The appeal is allowed for a limited purpose of setting aside the orders made in respect of the cumulative imposition of licence disqualification. In lieu of those orders for disqualification I order:
1.That for the two offences committed on 17 July 2004 (AMC-04-15913), a licence disqualification as from 8 March 2005 for a period of 18 months.
2.That for the three offences in counts two to four committed on 7 February 2004 (AMC-04-4056), a licence disqualification as from 8 March 2005 for a period of 12 months to be served concurrently with that imposed in AMC-04-15913.
3.That for the two offences in counts one and three committed on 27 May 2004 (AMC-04-12549), a licence disqualification as from 8 March 2005 for a period of 12 months to be served concurrently with that imposed in AMC-04-15913.
This making a total disqualification period of 18 months.