TURNEY v Police - [2010] SASC 282

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
TURNEY v POLICE
[2010] SASC 282
Judgment of The Honourable Justice White (ex tempore)
7 September 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
Appellant pleaded guilty to driving without a licence on four separate occasions - sentenced to six months imprisonment and a series of licence disqualification - appellant submitted that the sentence was manifestly excessive, and that the Magistrate erred in his application of s 18A of the Criminal Law (Sentencing) Act 1988 (SA).
Held: Appeal upheld - sentence manifestly excessive - Magistrate erred in the application of s 18A by imposing a single sentence of imprisonment, but separate periods of licence disqualification - appellant re-sentenced.
Motor Vehicles Act 1959 (SA) s 74; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 9; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Road Traffic Act 1961 (SA) s 46, s 47B, referred to.
The Queen v Capalbo [2005] SASC 47, distinguished.
Valenzuela v Police (1998) 70 SASR 275, discussed.
House v The King (1936) 55 CLR 499; S, JC v Police (2007) 96 SASR 432; O, C v Police [2007] SASC 346; A, MC v Police (2008) 102 SASR 151; Oliver v Police [2004] SASC 8; R v Thach and Chau [2010] SASCFC 16, considered.

TURNEY v POLICE
[2010] SASC 282
Magistrates Appeal (ex tempore)

WHITE J. The appellant was sentenced for four offences of driving a motor vehicle while unlicensed. Each offence was a contravention of s 74(2) of the Motor Vehicles Act 1959 (SA) (MVA), as the appellant has never been licensed in this State or elsewhere to drive a motor vehicle on a road. An offence against s 74(2) is the more serious of the two offences established by s 74 of the MVA.
The offences were committed on 17 and 23 March, 28 June and 28 August 2009. All four offences were committed in Naracoorte, where the appellant lives, and all were committed during daylight hours. One offence involved the use of a motorcycle and three, the use of a car.
The Magistrate in Mount Gambier sentenced the appellant to a single sentence of imprisonment for six months. He directed that the sentence to be taken to have commenced on 31 March 2010, that being the date upon which the appellant was taken into custody in consequence of his failure to answer his bail at an earlier hearing. In addition, the Magistrate imposed separate licence disqualifications in relation to each offence. Disqualifications for a period of three years were imposed in relation to each of the first three offences and a disqualification for three years and six months in respect of the fourth. The Magistrate ordered that all of the disqualifications should commence on the day of sentence, 20 July 2010, which effectively meant that they were to operate concurrently. Acting under s 9 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA), the Magistrate also imposed impounding fees totalling $751.25.
In relation to a separate offence of carrying an offensive weapon, committed on 17 August 2009, the Magistrate recorded a conviction without imposing any further penalty.
The appellant appeals against the sentence of imprisonment imposed for the four s 74(2) offences, contending that it is manifestly excessive. He complains about the length of the sentence and the Magistrate’s failure to suspend the sentence. He also complains that the Magistrate erred in his application of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA).
The appellant was born in August 1987 and so was aged 21 years at the time of the first three offences and 22 years at the time of the fourth. He was unemployed, but had previously worked as a meat worker. The appellant has two previous convictions for driving while unlicensed, one committed on 2 December 2006 and another committed on 15 January 2007. Both of those offences involved contraventions of s 74(2).
The appellant was sentenced for those offences and others on 22 May 2007 and ordered to perform 96 hours of community service. As each of the four 2009 offences was committed within three years of those previous offences, each was a subsequent offence for the purposes of determining penalty.[1] This meant that the maximum penalty for each offence was a fine of $5,000 or imprisonment for one year.
[1] Motor Vehicles Act 1959 (SA) s 74(6).
The appellant well knew that he was not entitled to drive without a licence. It seems that he chose simply to disregard the law precluding him from doing so. On one occasion he told the police that he was driving because he had “to go up the street” and on another occasion, he said that he was driving because “he had things to do”.
The Magistrate considered that the appellant’s offending in 2009 indicated a contemptuous attitude to the licensing regime and to the law. In addition, because the appellant had not had to learn the road rules and to demonstrate that he could handle a motor vehicle safely, his driving undermined the protection which the requirement for persons to be licensed to drive on roads affords to the community. The Magistrate considered that deterrence, both personal and general, were particularly important considerations in the sentence to be imposed. I respectfully agree with the Magistrate’s characterisation of the appellant’s offending and with his statement of the importance of deterrence.
The Magistrate was entitled to treat the later offences committed in 2009 as aggravated by the former. Being reported for the earlier offences should have brought home to the appellant the wrongfulness of his conduct and the potential for serious consequences to him. Despite this, and despite the opportunities which he had to reflect upon the situation, the appellant chose to offend again and again.
There was no evidence before the Magistrate that the appellant had taken any steps at all to obtain a driver’s licence. It cannot be said that the appellant’s offending was mitigated by the fact that there was some justification for it such as an emergency or a crisis. In short, I consider that the appellant’s conduct evidenced a disdain, if not contempt, by him for his legal obligations with respect to driving.
The Magistrate adopted, appropriately, the technique of indicating the notional sentences which he would have imposed had he been sentencing for the four offences separately. His notional starting point was 50 days and 80 days imprisonment respectively for the first two offences and imprisonment for 100 days for each of the third and fourth offences. The Magistrate then reduced each starting point by 10 days with the effect that the four notional sentences were 40 days, 70 days, 90 days and 90 days. The total was 290 days or just over nine months imprisonment. The Magistrate reduced that total to six months and imposed that period as a single sentence under s 18A of the CLSA. As I noted earlier, the appellant contends that the Magistrate erred in his application of s 18A.
The circumstances in which a Court will interfere with a sentencing decision of the present kind are well-known.[2] An appellant must demonstrate that the Magistrate made some error of principle or allowed extraneous or irrelevant matters to guide or affect his decision, or mistook the facts, or failed to take some material consideration into account. If an appellant is not able to demonstrate one or other of those matters this Court will only interfere if it can be said that the sentence imposed by the Magistrate was manifestly excessive.
[2] See eg. House v The King (1936) 55 CLR 999.
In relation to the submission that the sentence of imprisonment was manifestly excessive, the appellant made two principal submissions. The first was that, viewed objectively, a sentence of imprisonment for six months was excessive. The second was that the Magistrate failed to attach significance, or sufficient significance, to his age and to the fact that he had already spent approximately three and a half months in custody at the time of sentencing. It was submitted that those errors by the Magistrate led him to overestimate the need for his sentence to reflect elements of personal deterrence in this case. The period in custody had, so it was submitted, served to bring home to the appellant the seriousness of his offending and the gravity of the consequences for him should he continue to offend in this way.
Counsel also emphasised the expressions of contrition made by the appellant and the family support which he now has which should assist him in avoiding future offending.
The affidavit from the appellant’s counsel at the time of sentencing indicates that the matters which I have just summarised formed a prominent part of the submissions made to the Magistrate. As I have said, the submission on appeal is that the Magistrate either overlooked these matters or, alternatively, failed to attach sufficient weight to them.
I consider that there is force in this submission. The service of a period of approximately three and a half months in custody must have been significant for the appellant as a young man. The Magistrate mentioned the period spent in custody on only one occasion, namely, when he ordered that the period of imprisonment which he had imposed should commence on 31 March 2010.
In my opinion, the period which the appellant had already spent in custody and the prospect that it may have served to bring home to him the seriousness of his conduct should have been taken into account in the fixing of the length of an appropriate sentence and not just in the fixing of its starting point. The Magistrate’s sentencing remarks do not indicate that he considered the significance of the period served in custody in this way.
Often this Court is reluctant to conclude from the absence of any specific mention by a sentencing magistrate of a particular matter that it was something which was overlooked by the Magistrate. This Court appreciates the circumstances in which Magistrates carry out their work and, in particular, that it is not always practical for them to mention every single matter raised during sentencing submissions. Accordingly this Court does not readily accede to a submission that, simply because something is not mentioned in the sentencing remarks, it was overlooked by the Magistrate.
However, in the present case, the appellant’s counsel’s submissions concerning the significance to be attached to the time already served appear to have been a prominent feature in the sentencing submissions. That being so, it is surprising that the Magistrate did not advert to it specifically. This Court has previously said that, at least in those cases in which a custodial sentence is being imposed, it is a reasonable expectation that the sentencing remarks will disclose not only the sentencing court’s reasons for the particular sentence being imposed, but will also address the principal matters put in mitigation.[3]
[3] S, JC v Police (2007) 96 SASR 432 at 442; O, C v Police [2007] SASC 346 at [44]; A, MC v Police [2008] SASC 279 at [35]; (2008) 102 SASR 151 at 159.
The Magistrate’s failure to mention what seems to have been a prominent feature of the sentencing submissions leads me to conclude that it is a factor which was overlooked by him. That is to say, I am satisfied that the Magistrate failed to take a material consideration into account. Accordingly, circumstances justifying this Court’s intervention have been demonstrated and it is appropriate for this Court to resentence the appellant.
In my opinion, the period of four months and 13 days which the appellant has now served in custody is a sufficient penalty. It is a period of four months and 13 days because the appellant was in custody continuously from 31 March 2010 until his release on bail pending the determination of this appeal on 13 August 2010.
Like the Magistrate, I should indicate the notional basis for sentencing, upon which I have concluded that a sentence of four months and 13 days is a sufficient penalty. If the appellant was being sentenced only for the first offence committed on 17 March 2009, it is probable that a court would have sought to avoid the imposition of a term of imprisonment or, if satisfied that such a term was appropriate, have imposed a short period only, say 14 days. I think it likely that some sentencing option other than imprisonment would have been invoked if the appellant was being sentenced only for the first of the 2009 offences.
However, as previously indicated, the later offences indicate some contempt for the law and disregard of the appellant’s legal obligations. They are aggravated by the fact that the appellant had already been reported for the earlier offences.
In my opinion, those offences did call for the imposition of custodial sentences. Starting points for sentences of imprisonment for the second, third and fourth offences may have been of the order of 35 days, 50 days and 70 days imprisonment respectively. A reduction of 10 to 15 per cent on account of the appellant’s pleas of guilty to each offence would have been appropriate, suggesting a total period of imprisonment of approximately 140 days. On my calculations, the appellant has already served 135 days and accordingly, I consider the period already served to be an adequate punishment. In those circumstances, it is unnecessary for me to address the submissions of counsel concerning suspension.
I set aside the order of imprisonment for six months made by the Magistrate. In lieu of that sentence, I impose under s 18A of the CLSA a single sentence of imprisonment of four months and 13 days. I direct that the appellant be taken to have commenced serving that sentence on 31 March 2010 with the effect that the appellant completed the sentence on 13 August 2010.
I turn now to the submission concerning the Magistrate’s use of s 18A. Section 18A of the CLSA permits a sentencing court to impose one penalty for a number of offences. If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all, or some, of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
In Valenzuela v Police,[4] Olsson J held that when a court invokes s 18A, it is to do so in relation to all elements of the sentence imposed for the group of offences in question. That meant, in the circumstances of Valenzuela, that the court could not use s 18A to impose a single fine for a number of offences, but separate periods of licence disqualification in relation to those same offences. Once s 18A is invoked, if a court is to impose a fine, it is to impose a single fine for a number of offences and, if it is to impose disqualifications, it is to impose a single period of licence disqualification for those offences. I note that in Oliver v Police,[5] Gray J adopted the same view of s 18A as did Olsson J in Valenzuela.
[4] (1998) 70 SASR 275.
[5] [2004] SASC 8.
In the circumstances of Valenzuela, the court was required to impose licence disqualifications by ss 46 and 47B of the Road Traffic Act 1961 (SA). I am unable to discern any feature of s 74 of the MVA, in particular s 74(5), which would distinguish it in a relevant way from the provisions considered by Olsson J in Valenzuela.
I should mention that in The Queen v Capalbo,[6] the Court of Criminal Appeal declined to follow one aspect of the decision in Valenzuela. However, that related to that part of the decision which concerned the accumulation of periods of licence disqualification and not to the proper application of s 18A.
[6] (2005) SASC 47 at [83].
Accordingly, I am satisfied that the appellant has made good his contention that the Magistrate’s decision to impose separate licence disqualifications after invoking s 18A so as to impose a single sentence of imprisonment was an inappropriate application of s 18A. That means that the sentencing discretion with respect to the licence disqualifications should also be exercised afresh.
S 74(5) of the MVA requires that a minimum licence disqualification of three years be imposed. It is understandable that the Magistrate considered it appropriate to impose a licence disqualification longer than the minimum in relation to the fourth offence. It was the most serious of the four offences, being aggravated by the commission of the first three offences, and by the fact that it was committed after the appellant had been reported for each of those first three offences.
On the other hand, it does not follow that when a lengthy licence disqualification must be imposed, that the deterrent effect of such a disqualification is increased by extending the minimum disqualification. The imposition of lengthy periods of licence disqualification can be counterproductive. The Court of Criminal Appeal referred to these issues in the recent decision of The Queen v Thach and Chau.[7]
[7] [2010] SASCFC 16.
In the present case, I consider that the greater culpability of the appellant in relation to the fourth offence is reflected in the higher notional prison term which would be imposed for that offence, as I outlined earlier. It is not necessary that the period of licence disqualification imposed for the fourth offence should also reflect that greater culpability. I am satisfied that a single licence disqualification for the minimum period of three years is appropriate for this offence as well.
Accordingly, acting under s 18A of the CLSA, I impose a single period of licence disqualification for three years for all of the four offences. The period of disqualification is to commence on 20 July 2010.
It is also appropriate that a single amount by way of impounding fees be imposed. Acting under s 9 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act I direct that the appellant pay impounding fees totalling $751.25. The Magistrate’s orders with respect to court costs, prosecution costs and the Criminal Compensation Levy are to stand.
Accordingly, the orders which I make today are these:
1. I allow the appeal.
2. I set aside the sentences for the four offences which were imposed by the Magistrate.
3.In lieu of those sentences I enter convictions for each offence and impose under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) a single sentence of imprisonment of four months and 13 days.
4.I direct that that sentence be taken to have commenced on 31 March 2010 with the effect that the appellant completed service of that sentence on 13 August 2010.
5.I impose under s 18A of the Criminal Law (Sentencing) Act 1988 a single period of licence disqualification of three years and direct that that period of disqualification be taken to have commenced on 20 July 2010.
6.I direct that the appellant pay impounding fees totalling $751.25.
7.With respect to court fees, prosecution costs and the Criminal Injuries Compensation levy, the orders made by the magistrate are to stand.
8.I direct that the respondent pay the appellant’s costs of, and incidental to, the appeal which, by the agreement of the parties, I fix in the sum of $250.