TALIANGIS v Police - [2008] SASC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TALIANGIS v POLICE
[2008] SASC 3
Judgment of The Honourable Justice David
18 January 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appeal against sentence – driving while disqualified – two prior convictions for driving while disqualified – prior conviction for driving in a reckless or dangerous manner – depression – addiction – employment – sentence of imprisonment not suspended – whether fresh evidence can be adduced on appeal – effect of fresh evidence on appeal against sentence.
Held: Appeal dismissed – fresh evidence should be received where in existence at the time of sentencing but not known to sentencing court – unclear whether appellate court can interfere merely because magistrate may have imposed a different sentence if fresh evidence known – fresh evidence would not have affected magistrate’s decision – no error in magistrate’s decision not to suspend sentence.
Criminal Law (Sentencing) Act 1988 (SA) s 38(1); Motor Vehicles Act 1959 (SA) s 91, referred to.
R v Brain (1999) 74 SASR 92; R v Smith (1987) 44 SASR 587, applied.
House v King (1936) 55 CLR 499, discussed.

TALIANGIS v POLICE
[2008] SASC 3
Magistrates Appeal
DAVID J.
Introduction

The appellant pleaded guilty to driving whilst disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the Motor Vehicles Act 1959 (SA). On 30 October 2007, he was sentenced to 21 days imprisonment. The magistrate declined to suspend the sentence. The appellant appeals against the magistrate’s decision not to suspend the sentence.
Background
The appellant has two prior convictions for driving while disqualified. The first was on 6 February 2003. On that occasion he was sentenced to imprisonment for a period of one month, which was suspended upon him entering into a bond, to be of good behaviour for 12 months. The second was on 25 June 2003, when he was placed on a three year good behaviour bond.
On 16 August 2005, the appellant was convicted of driving in a reckless or dangerous manner and was disqualified from driving for a period of three years. That disqualification will end on 15 August 2008. The present conviction is in relation to driving during that period of suspension.
On 4 April 2007 the appellant was driving a Suzuki motorcycle on Marion Road, Ascot Park. Police stopped him to question him about the ownership of the motorcycle, and subsequent enquiries revealed that he was disqualified from driving. The appellant stated that, at the time he was stopped, he was driving from a friend’s house, which was located nearby. He also stated that he knew that he was disqualified from driving at the time.
In sentencing, the magistrate said:
It is not disputed by your counsel that the driving was contumacious. The submission put to me today is that any sentence of imprisonment should be suspended on a supervised bond.
That submission relied upon the following personal circumstances. You suffer from depression and are receiving treatment. You are working full-time and have been for the last three months and imprisonment would jeopardise that employment. You are receiving assistance in dealing with alcohol and drug problems. You provide care for your mother. You no longer drive a car and are riding a bike to and from work. A sentence of imprisonment may well result in problems with the mortgage that you are solely responsible for. Finally, it was put that you had previously successfully completed the bonds you were placed on.
The offending was a blatant disregard of the order of the Court made on 16 August 2005. You have previously had the benefit of a suspended sentence of imprisonment. A sentence that deters you from this type of offending is called for.
I am satisfied, particularly when I look at your prior convictions, that a sentence of imprisonment is the only realistic option.
I will take into account your personal circumstances which I have briefly outlined and fix a short sentence of one (1) month’s imprisonment which I reduce to 21 days on account of your plea of guilty. I have considered your personal circumstances in the context of the submission that I suspend the term of imprisonment. The blatant disregard of the Court order and the opportunity you have previously been given with a suspended sentence of imprisonment, mitigate against suspension of [the] term of imprisonment.
In my view there is no proper basis to suspend the sentence of imprisonment.
Fresh Evidence
The appellant seeks to adduce new evidence relevant to sentencing. In R v Brain,[1] Doyle CJ said:
On an appeal against sentence, the Court may receive fresh evidence if that evidence puts before the Court facts which existed when the sentence was passed, but were not known to the sentencing judge.[2]
[1] R v Brain (1999) 74 SASR 92.
[2] Ibid 104.
In R v Smith,[3] Duggan J said:
The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, and fresh evidence is therefore not receivable to establish the occurrence of such events.[4]
[3] R v Smith (1987) 44 SASR 587.
[4] Ibid 588 (footnotes omitted).
In this case, the appellant seeks to adduce fresh evidence in the form of a letter from a medical practitioner. The appellant attended the practitioner on 29 October 2007, the day before the appellant was sentenced, but the letter was not prepared until 12 December 2007. As such, there were additional matters identified in the letter that were facts in existence at the time of sentencing, but were not known to the magistrate. The respondent therefore correctly concedes that it is appropriate for this Court to admit the fresh evidence.
Suspended Sentence
The appellant appeals on the basis that the sentence of imprisonment should have been suspended.
The magistrate’s sentencing remarks indicate that he took into consideration the appellant’s submissions that:
·he was working on a full-time basis and that his employment may be jeopardised if he was incarcerated;
·he was responsible for mortgage repayments and his ability to pay these may be jeopardised if he was incarcerated;
·he had medical conditions and addictions, for which he was receiving treatment at the time; and
·he provided care to his mother.
The doctor’s letter outlines the following additional information, which it appears was not made available to the magistrate:
His relationship with his girlfriend had finished. He had been denied access to the support of his best friend as a bail condition.
…
He had made a suicidal [sic] attempt (by hanging) a few weeks earlier but denied suicidal intent at this time.
…
… He is worried about the possibility of imprisonment. This would adversely affect his depression and anxiety symptoms.
As already discussed, this Court must take into account this fresh evidence when determining whether the sentence imposed should have been suspended.[5]
[5] R v Brain (1999) 74 SASR 92, 104; R v Smith (1987) 44 SASR 587, 588.
However, the appellant has two prior convictions for driving while disqualified. He has previously had the benefit of receiving a suspended sentence. When he committed this offence he was aware that he was disqualified from driving.
The power to suspend a sentence is discretionary.[6] Ordinarily, for a decision not to suspend a sentence to be overturned on appeal, an appellate court cannot simply find that it would have decided to suspend the sentence. Instead, the court must find that the magistrate was in error in failing to suspend the sentence.[7] However, where fresh evidence is adduced on appeal, it is unclear whether an appellate court can interfere merely because the magistrate may have imposed a different sentence, had he or she known about the additional evidence, or whether an error must be found.[8]
[6]    Criminal Law (Sentencing) Act 1988 (SA) s 38(1).
[7]    House v King (1936) 55 CLR 499, 504‑505.
[8]    R v Brain (1999) 74 SASR 92, 105-107.
In the present case, it is not necessary to resolve this issue, as there is no error in the magistrate’s decision not to suspend the sentence and my view is that the fresh evidence could not have altered the magistrate’s decision concerning suspension. The additional information is insufficient to warrant a further suspended sentence. The appellant has had a number of chances to rehabilitate and has chosen to continue to offend.
Conclusion
The appeal is dismissed.