Stainer v Police

[2011] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

STAINER v POLICE

[2011] SASC 30

Judgment of The Honourable Justice Duggan

4 March 2011

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - TO ADMIT NEW EVIDENCE

Appeal against sentence imposed by Magistrate – appellant charged with two counts of driving while disqualified contrary to s 91 of the Motor Vehicles Act 1959 (SA) and a further offence of driving a vehicle while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA) – sentence of eight months imprisonment imposed for each driving while disqualified charge to be served concurrently – no penalty imposed for drink driving charge – after sentencing appellant was psychiatrically examined – whether fresh evidence of appellant’s psychiatric state can be tendered on appeal against sentence – whether sentence was manifestly excessive – whether the Magistrate erred in failing to suspend part or all of sentence.

Held: appeal against sentence allowed – term of imprisonment for eight months to remain – appellant’s offending sufficiently serious to warrant a term of imprisonment of this duration – order that the appellant serve a period of four months imprisonment with the remainder of the sentence to be suspended upon appellant entering into a recognisance to be of good behaviour and to undergo psychiatric treatment – psychiatric report should be received as fresh evidence – obvious reason why appellant did not attempt to have investigations into psychiatric state at the time of proceedings in the Magistrates Court when he was unrepresented – report could have influenced the determination of the Magistrate as to the appropriate sentence had it been available.

Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) s 47A; Criminal Law (Sentencing) Act 1988 (SA) s 38(2a), s 38(2b), referred to.

STAINER v POLICE
[2011] SASC 30

Magistrates Appeal: Criminal

1. DUGGAN J:         The appellant appeals against a sentence imposed in the Adelaide Magistrates Court for two admitted offences of driving while disqualified contrary to s 91 of the Motor Vehicles Act 1959 (SA).

2. The appellant was sentenced to imprisonment for eight months on each of the driving while disqualified charges, the sentences to be served concurrently. The appellant pleaded guilty to a further charge of driving a vehicle while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA). However, no penalty was imposed in relation to that offence.

3. The offences were committed on 31 August 2010.  At approximately 2.50am on that day, the appellant was observed by police officers driving his vehicle along East Terrace, Adelaide.  He was stopped and told that he would be reported for driving while his licence was suspended.

4. The appellant was apprehended again at approximately 4.00am after he had driven from East Terrace to his home at Athelstone.  He told the police that he did not want to leave his vehicle parked in the city and that he was unable to get somebody to pick him up.  He underwent a breath analysis test which recorded a blood alcohol concentration of 0.030 grams in 100ml of blood.  The prescribed concentration of alcohol in relation to a person whose licence is suspended is any concentration of alcohol in the blood.[1]

   [1]    Motor Vehicles Act 1959 (SA) s 47A.

5. The appellant has a long list of driving offences including the following convictions for driving under disqualification:

Date of offence	Date of conviction	Penalty
12 April 2006	26 April 2007	Imprisonment for four months suspended.
9 February 2006	28 June 2006	Fine $900 (includes penalty for driving unregistered and uninsured vehicle).
31 January 1995	25 May 1998	Found proved - no penalty imposed.
9 December 1995	25 May 1998	Imprisonment for three months suspended.
31 January 1995	10 April 1995	Imprisonment for one month suspended.
14 November 1994	10 April 1995	Imprisonment for 14 days suspended.

1. In addition, the appellant has 13 convictions for driving an unregistered vehicle between 1999 and 2008.  On some of these occasions, the appellant was also convicted of driving an uninsured vehicle.

2. The Magistrate stated that the starting point for her consideration of the sentences for the offence of driving while disqualified was imprisonment for 10 months but this was reduced to eight months because of the pleas of guilty.  As stated above, the sentences were made concurrent.

3. The appellant was unrepresented in his appearance before the Magistrate.  The Magistrate suggested to him that he should seek legal assistance and adjourned the matter for that purpose.  However, when the hearing resumed, the appellant said he did not wish to be represented and the matter proceeded.

4. After being sentenced, the appellant sought legal advice and arrangements were made for him to be psychiatrically examined by Dr Raeside.  Mr Charman, for the appellant, has applied to tender Dr Raeside’s report as fresh evidence on the appeal.  I accept that there is adequate reason to explain why no psychiatric evidence was adduced before the Magistrate.  However, the question remains whether the evidence which the appellant wishes to tender on appeal would have been likely to affect the sentence.

5. The appellant is 38 years of age.  He is single and lives at home with his parents.  The appellant’s parents have been concerned for some time that he is unable to look after his financial affairs.  The appellant’s father has recently applied to the Guardianship Board seeking an order that the appellant’s financial affairs be administered by an independent party.  This order has now been made and, as from 11 January 2011, the Office of the Public Trustee has exercised control over the appellant’s financial affairs.

6. Dr Raeside stated in his report of 28 December 2010 that the appellant did not display any overt psychotic features such as perceptual disturbances, delusional ideas or psychotic thought disorder.  He summarised his assessment of the appellant as follows:

   Based on the information available to me and from my interview with Mr Stainer I was unable to find any clear evidence of a psychiatric disorder at present.  Neither his own account, or on mental state examination, was there any clear evidence of a mood disorder or a psychotic disorder, such as Schizophrenia.  However, the history from his family, as well as from Mr Stainer, suggests that there may be some underlying mental health problems, most likely depressed mood, manifest by irritability.  Although it is possible that he may have a prodromal and subclinical Schizophrenia, his age would be unusual for this.

   Despite a history of behavioural difficulties and the recurrent offending, I would not be prepared to diagnose a personality disorder.

   Offending Behaviour

   As noted, I could not find any clear psychiatric reason for the recurrent driving offences. However, I suspect that Mr Stainer has chronic low-grade depressive symptoms, manifest by irritability and a “couldn’t care” type attitude which has led to his behavioural difficulties, including the current offending.  Alcohol abuse also has obviously been a problem at times.  He appears to minimise his various difficulties (such as his financial problems), and seems to have a general psychological defence of denial in relation to his various problems, which effectively prevents him taking appropriate action to resolve them.

   …

   Treatment and Prognosis

   Despite the clear [absence] of any formal psychiatric disorder at present I would recommend that Mr Stainer have ongoing psychiatric treatment.  If his appeal was successful I would suggest a bond with conditions of outpatient psychiatric treatment to enable his mental state to be monitored, as well as to institute any psychiatric treatment as needed.  Participation in an appropriate anger management program would also be useful.  Participation in a drug and alcohol program would also be warranted.

   I would be concerned that should Mr Stainer be incarcerated he is unlikely to get any psychiatric or psychological treatment whilst in custody.  This would be compounded by being released without any conditions of requirement for such treatment.

7. It is apparent that Dr Raeside was unable to make any clear psychiatric diagnosis.  However, he recommends ongoing psychiatric treatment and suggests outpatient treatment to enable the appellant’s mental state to be monitored. 

8. There is enough in Dr Raeside’s report to suggest that the appellant’s mental condition may be a contributing factor to his behaviour.  At the very least, there would seem to be merit in his suggestion that further investigation of the appellant’s mental condition should take place.  I am not confident that the appellant would undergo such an investigation voluntarily.  However, court ordered supervision is an option. 

9. In my opinion, the aspects of general and personal deterrence are important considerations in the circumstances of this case.  The appellant’s refusal to obey court orders has taken place over a lengthy period of time.  His behaviour has been wilful and he has acted in obvious contempt of the courts and the authorities.  The offending is serious enough to warrant a term of imprisonment.  However, I think an attempt should be made to assist the appellant to break his cycle of offending and to determine whether ongoing psychiatric treatment is indicated.

10. I have reached the conclusion that Dr Raeside’s report should be received as fresh evidence.  There was an obvious reason why the appellant did not attempt to have these investigations made at the time of the proceedings in the lower court.  According to Dr Raeside, the appellant has little insight into his problems.  Furthermore, I am of the view that, if the Magistrate had been given the benefit of Dr Raeside’s view, it would probably have influenced the determination as to the appropriate sentence.  It is necessary, therefore, for this Court to consider the matter afresh.

11. The appellant’s continuous disregard for the law warrants a term of imprisonment. In my view, the term of imprisonment for eight months should remain. However, I think it is also appropriate to give effect to Dr Raeside’s views by directing, pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), that the appellant serve a period of imprisonment for four months and that the remainder of the sentence be suspended upon him entering into a recognisance to be of good behaviour and to undergo such psychiatric treatment as is directed by a probation officer.

12. Periods of supervision ordered under s 38(2a) of the Sentencing Act are of limited duration by reason of s 38(2b) which provides that the term of the bond cannot extend beyond the period of the suspended sentence. However, the short period will at least enable some further psychiatric assessment.

13. The appeal is allowed for the purpose of partially suspending the sentence pursuant to s 38(2a) of the Sentencing Act.  The terms of the recognisance can be discussed when these reasons are delivered.