STEVENS v Police - [2015] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STEVENS v POLICE
[2015] SASC 73
Judgment of The Honourable Justice Kelly
15 May 2015
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
Appeal against sentence. The appellant was convicted of driving dangerously to escape police pursuit contrary to s 19AC(1) of the Criminal Law Consolidation Act 1935 (SA). At the time of the offending the appellant was 20 years old. He had never before been sentenced to a term of imprisonment. It was likely that he would lose his employment if required to serve a term of imprisonment.
The appellant was sentenced to a term of three months imprisonment, and given a period of licence disqualification for three years. The sentencing Magistrate declined to exercise the discretion to suspend the sentence of imprisonment.
The appellant appeals only on the ground that the Magistrate erred in declining to exercise the discretion to suspend the term of imprisonment.
Whether the Magistrate erred in declining to exercise the discretion pursuant to s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA).
Held (allowing the appeal):
1. The exercise of the discretion to suspend the sentence of imprisonment was a very finely balanced matter. In such a case, especially where the offender is young and without prior relevant antecedents, it is incumbent on a Magistrate to explain with clarity why it is that prospects of rehabilitation do not militate towards the imposition of a suspended sentence. The Magistrate erred by failing to do so.
2. Proper exercise of a Magistrate’s discretion under s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) requires careful weighing of the deterrent effect of a suspended or immediate sentence of imprisonment against the appellant’s prospects of rehabilitation. It is difficult to see how the Magistrate could have properly weighed the appellant’s prospects of rehabilitation against deterrence, without first considering those prospects. By failing to first consider the appellant’s prospects of rehabilitation before weighing them against deterrence, the Magistrate erred.
3. The appeal is allowed. The part of the order made by the Magistrate refusing to suspend the term of imprisonment is set aside. The term of imprisonment of three months is suspended upon the appellant entering into a bond to be of good behaviour for a period of two years in the sum of $500.
Criminal Law (Sentencing) Act 1988 (SA) s 38(1); Criminal Law Consolidation Act 1935 (SA) s 19AC(1), referred to.
R v Scott [2014] SASCFC 131; The Queen v Weaver (1973) 6 SASR 265, considered.

STEVENS v POLICE
[2015] SASC 73
Magistrates Appeal: Criminal

KELLY J: The appellant appeals against a sentence of imprisonment imposed in the Port Lincoln Magistrates Court on 15 January 2015.
The appellant pleaded guilty to one count of driving dangerously to escape police pursuit contrary to s 19AC(1) of the Criminal Law Consolidation Act 1935 (SA). After hearing submissions, the Magistrate sentenced the appellant to a term of three months imprisonment and disqualified him from holding or obtaining a driver’s licence for a period of three years. The Magistrate declined to suspend the sentence of imprisonment.
The appellant now appeals the sentence imposed on the sole ground that the Magistrate erred in declining to exercise his discretion to suspend the term of imprisonment. No complaint is made about the imposition of the term of imprisonment or about the length of the licence disqualification.
The appellant submitted that the error made by the Magistrate was in failing to give adequate reasons as to why other sentencing options besides the imposition of an immediate term of imprisonment were not appropriate given the appellant’s age, lack of relevant antecedents, and the circumstances of the offending itself. The appellant submitted that the Magistrate erred in rejecting the submissions made that a suspended term of imprisonment in all of the circumstances would act as an effective deterrent outright, without explanation.
Proceedings in the court below
It would appear from the affidavits filed on appeal, including the affidavit of Mr Semmens filed belatedly on 24 April 2015, that the plea, submissions, and sentence all occurred within a relatively short period of time. The prosecutor made no submissions in relation to penalty. The solicitor acting for the appellant in the court below made submissions concerning the personal circumstances of the appellant including his age at the relevant time, family background, and schooling and working history. Specific mention was made of the appellant’s employment in two places of work: on a prawn boat (obviously seasonal work), and at a fish processing factory in Port Lincoln, with the inference that he would lose that employment if required to serve an immediate term of imprisonment. The Magistrate accepted those submissions.
Further reference was made to the circumstances in which the appellant committed the offence. It was conceded that it was a very serious example of the offence, occurring in circumstances where the lives of other road users were put at risk. It took place in a built-up area near a school and at times the appellant was driving on the wrong side of the road. Nevertheless, the submission was made that in light of the appellant’s background, the fact that drugs and alcohol were not factors in his offending, and that there were no relevant antecedents, there were good reasons to suspend any sentence of imprisonment.
The Magistrates approach
The Magistrate correctly regarded the appellant’s offending as very significant, the circumstances of which were extremely serious. The Magistrate recognised that the appellant was entitled to a discount of 30 per cent on account of his early plea. He then said:
Having given very careful consideration to all the information before me, in particular, whether to exercise my discretion to suspend imprisonment, I have decided not to do so. The circumstances of this offending in my view are very much toward the upper end of the seriousness scale and the potential for the defendant’s driving causing death or injury was very high. In my view general deterrence in this instance overrides arguments in favour of the defendant’s rehabilitation. It seems to me that a relatively short period of imprisonment will reinforce to the defendant the seriousness of his behaviour and at the same time send a message to others in the defendant’s community and generally, that driving of this nature which puts innocent members of the community at considerable risk is unacceptable and will not be tolerated by the courts.
These remarks demonstrate that, in the Magistrate’s view, the seriousness of the offence meant that the necessity of deterring the community and the appellant from this form of dangerous offending must inevitably outweigh the appellant’s rehabilitation.
I understand and agree with the Magistrate’s characterisation of the appellant’s offending as extremely serious in the circumstances. However, notwithstanding the Magistrate’s proper characterisation of the offending, there is much in the appellant’s personal circumstances to suggest that a suspended sentence would be a salutary and rehabilitative sentence. The appellant was 20 years old at the time of the offending. He had never before been sentenced to a term of imprisonment. It is likely that he would lose one or both of his current jobs if imprisoned. I understand that submission was put to the Magistrate although, to be fair, it is not clear from Mr Semmens’ affidavit just how forcefully it was made. There are, of course, some cases in which the only effective deterrent, even for a first offender, is an immediate term of imprisonment. However it is not clear from the information that was before the Magistrate during sentencing that the appellant’s case fell into that category.
It is therefore my view that, in light of the circumstances of the offending and the appellant’s personal circumstances, the exercise of the discretion to suspend the sentence of imprisonment was a very finely balanced matter. In such a case, having considered all of the circumstances surrounding the appellant’s offending and submissions made on sentence by counsel for the appellant, especially where the offender is young and without prior relevant antecedents, it is incumbent on a Magistrate to explain with clarity why it is that prospects of rehabilitation do not militate towards the imposition of a suspended sentence. The Magistrate did not do so, and it is not apparent to me how he concluded that a suspended sentence could not operate as an effective deterrent, and an immediate custodial sentence was required for that purpose.
Being so finely balanced a case, proper exercise of the Magistrate’s discretion under s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) required a careful weighing of the deterrent effect of a suspended or immediate sentence of imprisonment, against the appellant’s prospects of rehabilitation. Although the Magistrate referred briefly to the appellant’s rehabilitation, I am not satisfied, on the information before me, that such an evaluation took place. Even allowing for the necessary brevity of sentencing remarks in the Magistrates Court, and I do not mean that as a criticism, it is not clear to me that the Magistrate properly weighed the competing factors.
In Mr Stevens’ case, an important factor was his youth. It is settled law that when young adults come before the criminal courts, particularly as first offenders, rehabilitation should be a prominent sentencing consideration.[1] The Magistrate’s sentencing remarks do not reveal whether the Magistrate thought the appellant’s prospects of rehabilitation were good, poor, or otherwise. It is difficult to see how the Magistrate could have properly weighed the appellant’s prospects of rehabilitation against deterrence, without first considering those prospects.
[1] The Queen v Weaver (1973) 6 SASR 265 at 267; R v Scott [2014] SASCFC 131 at [19].
For these reasons I consider that the Magistrate was required, in the balanced circumstance of this case, to carefully weigh competing factors, including the appellant’s prospects of rehabilitation, when considering whether to exercise his discretion to suspend the sentence of imprisonment, and clearly explain that reasoning. By failing to do so, I consider that the Magistrate erred, and the sentencing discretion must be exercised afresh.
Having considered all of the circumstances, including the offending itself and the appellant’s personal circumstances, I have reached the firm conclusion that in the case of this young man a suspended sentence will act as an effective deterrent. There is no doubt that the offending was serious and that there is a need to deter this kind of behaviour in the community. However, in Mr Stevens’ case I am in no doubt that effective deterrence can be achieved through the imposition of a suspended sentence.
Accordingly, the appeal must be allowed. That part of the order made by the Magistrate refusing to suspend the term of imprisonment is set aside. The term of imprisonment of three months will be suspended upon the appellant agreeing to enter into a bond to be of good behaviour for a period of two years in the sum of $500. In all other respects the order of the Magistrate is confirmed.