Van Lammeren v Police* No. Scgrg-98-1131 Judgment No. S6920

VAN LAMMEREN v POLICE
[1998] SASC 6920

Full Court: Millhouse, Olsson and Debelle JJ

MILLHOUSE J. I agree with the reasons of Justice Olsson.
OLSSON J. This is an appeal, by leave, against an order of a single Judge of this Court in relation to the outcome of a prosecution appeal against a sentence imposed by a magistrate on the appellant.
The appellant had pleaded guilty before the learned magistrate to no less than thirteen offences, committed on some five separate dates. Summary details of those offences were:-
Count 1     (14.01.98)         Forging a birth certificate
         Count 2     (14.01.98)         Furnishing false information
         Count 3     (14.03.98)         Furnishing false information
Count 4     (23.05.98)         Driving whilst disqualified
Count 5     (23.05.98)         Driving an uninsured vehicle
Count 6     (23.05.98)         Driving an unregistered vehicle
         Count 7     (23.05.98)         Failed to truly answer questions
         Count 8     (01.06.98)         Driving whilst disqualified
         Count 9     (01.06.98)         Driving an uninsured vehicle
         Count 10   (01.06.98)         Driving an unregistered vehicle
         Count 11   (02.06.98)         Driving while disqualified
         Count 12   (02.06.98)         Driving an uninsured vehicle
         Count 13   (02.06.98)         Driving an unregistered vehicle

The learned magistrate elected, pursuant to s18A of the Criminal Law (Sentencing) Act 1988, to impose a single sentence in respect of all offences. She imposed a custodial sentence of 6 months imprisonment, suspended on entry by the appellant into a bond to be of good behaviour for a period of 18 months. That bond was subject to various terms, one of which required the appellant to perform 80 hours of community service during its term.
The prosecution appealed against the suspension of the sentence on the ground that the sentence imposed was manifestly inadequate. The learned judge upheld that contention and ordered the appellant to serve an immediate term of six months imprisonment.
The present notice of appeal complains that the learned Judge did not give proper effect to the principles governing prosecution appeals and appeals against sentencing discretion. It also seeks to challenge the sentencing approach adopted by him, quite apart from those issues.
As the learned Judge pointed out, this 21 year old appellant came before the court with an extensive prior offending background, albeit that the offences in question were road traffic offences rather than offences of dishonesty. Details of the prior offending history placed before the learned magistrate were:-

Date	Offence	Penalty
12.01.98	Driving in reckless or dangerous manner	Fined $400. Disqualified for 3 years.
12.01.98	Due care	Fined $200
12.01.98	Undue noise, disorderly behaviour, fail to duly answer, resist police	Fined $200
12.01.98	Two counts of no ‘P’ plates	Fined $100
23.07.97	Exceeding speed limit	Fined $105
14.07.97	Exceeding speed limit. Fail to carry provisional licence	Fined $219
30.06.97	No ‘P’ plates	Fined $106
02.06.97	Exceeding speed limit	Fined $110
17.01.97	No safety helmet on bicycle	Fined $40
24.12.96	No ‘P’ plates	Fined $50
09.02.96	Unregistered and uninsured vehicle and no licence	Fined $120 and disqualified for 21 days
30.01.96	Drive in dangerous manner	Fined $350 and disqualified for 8 months
30.11.95	Unregistered and uninsured vehicle. No licence.	Fined $120. Disqualified for 14 days.
24.08.95	Disobey provisional licence condition	Fined $35
16.08.95	Disobey learner’s permit	Fined $106
10.08.95	Fail to wear seat belt	Fined $75
06.07.95	Due care	Fined $200

I have dwelt on those prior convictions at some length because they disclose what can only be described as a cavalier attitude on the part of the appellant to his legal responsibilities in relation to the driving of motor vehicles. Moreover, it is readily apparent that he consistently failed to respond to initial quite lenient treatment accorded to him.
The pattern of offending now under consideration indicates an even more serious course of conduct.
The initial offences charged on this occasion relate to a deliberate subterfuge embarked on by the appellant to overcome the period of disqualification imposed on him on 12 January 1998. In essence, he somehow obtained a blank birth certificate form and forged details on it to indicate a fictitious identity of “Matthew James Vanderlaans”. He initially used this to open a bank account and obtain an ATM card in that name. He also procured a letter from the bank certifying that, in that name, he was a customer of it.
Using the materials so brought into existence the appellant applied for and obtained a learner’s permit in the false name. He later passed a practical driving test and received a probationary licence as Matthew James Vanderlaans.
On 23 May 1998 the appellant was seen driving a vehicle on an occasion when his brother was arrested. He gave the fictitious name used by him and produced the false licence. Subsequent investigations led to the bringing of both the charges related to his adoption of the false identity and also the other charges against him in relation to his activities whilst the holder of a licence in the name of Vanderlaans.
As the learned Judge pointed out, the train of events from which the present counts arise was embarked on only two days after the licence suspension for driving in a reckless and dangerous manner. It was a quite deliberate and contumacious course of conduct, specifically designed to circumvent the orders of the Magistrates Court. It also reflected a continuation of the appellant’s lengthy history of contempt for the law and his obligations under it.
There can be no doubt that a substantial custodial sentence was called for. In my opinion, the period of six months imposed was plainly appropriate. Indeed, as a global sentence in respect of the 13 counts against him, it was quite moderate.
The learned Judge noted that the sentencing magistrate obviously gave considerable weight to certain mitigating facts which had been put to her.
Great stress had been placed by counsel for the appellant on what were said to have been his loyalty and social obligations to his brothers and his uncle (who was suffering from Parkinson’s disease); and also to the appellant’s unhappy family background. It was also put to the sentencing magistrate that the appellant himself had severe medical problems which required him to enter hospital for a period of cardiac investigations.
Whilst acknowledging the seriousness of the offending and the primary factor of deterrence which needed to be recognised, the sentencing magistrate felt that “the final clinching factor” (as she put it) was the health of the appellant coupled with the potential effect of imprisonment on those family members said to be “dependent” on him. These, she considered, combined to warrant a suspension of the custodial sentence which was plainly called for.
The learned Judge found himself unable to accept that reasoning, particularly having regard to the inherently serious and deliberate nature of the offending, viewed against the appellant’s antecedent background.
In the course of his reasons the learned Judge made these points:-
On one only of the three occasions of driving disqualified was there any suggestion of mitigating circumstances to justify the driving. It was said that the appellant had been worried about his brother and the possibility of there being trouble concerning the latter. (Even this was, on the face of it, a somewhat unconvincing explanation);

The distance travelled on at least two occasions was quite considerable;

Although it was suggested that the appellant’s uncle had come to rely on the appellant to assist in his day to day exigencies of living and his work, the fact was that the uncle was still able to conduct a business activity;

It was an overstatement to describe the appellant’s two brothers and uncle as his “dependents”. The two brothers were aged 20 and 17 respectively and there was no evidence of any particular need for his support or help. The conduct of the business by the uncle did not lend credence to any significant dependency on the appellant, so far as he was concerned; and

There was no evidence to indicate that a custodial sentence would cause any significant health threat by reason of the appellant’s present medical condition.

The learned Judge drew specific attention to the following excerpts from the sentencing remarks of the learned magistrate:-
“One of the defendant's brothers (who doesn't have a licence and doesn't know how to drive) the youngest of the family, had shortly beforehand been committed to a hospital with acute depression.
The hospital admission followed a period of residence in Western Australia which appears to have re-opened old issues from the very unhappy childhood these boys had. It seems to be this hospitalisation of his younger brother, which precipitated the defendant's stupid decision that the best way to be loyal to his family, and to be able to meet their needs even when driving a car was involved, was by creating a false identity. In this very unusual case, I have no doubt that that is a fair summary of what this defendant was trying to do.
The defendant himself has severe medical problems, and, as I understand it will shortly have to enter hospital for a period of cardiac investigations.
It is that factor which is the final clinching fact (over and above the effect on his dependents) which in my view makes suspension of the prison sentence appropriate.”
He then went on to say:-
“In my opinion that passage is indicative of appealable error. It seems to me that looking at the matter broadly, the learned sentencing magistrate must be taken to have under-rated the seriousness of the charges to which the respondent had pleaded guilty, and his long history of defiance of the traffic laws. Furthermore, she appears to have given too much weight to the evidence as to the respondent's medical condition and home situation. Although, no doubt, the respondent’s medical condition is serious, there is nothing in that condition which would justify the imposition of a suspended term of imprisonment as opposed to a custodial term ... ”
Whilst recognising the effect of the authorities touching on the approach proper to be adopted to prosecution appeals (including the associated problem of double jeopardy) the learned Judge expressed the view that the sentencing discretion plainly miscarried. He felt that the degree of leniency given by the sentencing magistrate was at odds with what he described as “the deliberate, devious and fraudulent” conduct of the appellant, seen against his prior offending background. He was therefore moved to quash the suspension of the custodial sentence.
Whilst it is true that, conformably with what fell from the High Court in Everett v The Queen (1994) 181 CLR 295, an appellate court ought to be slow, on a prosecution appeal, to interfere with the exercise of a sentencing discretion, nevertheless it will not hesitate to do so where it appears that there has been a manifest error of principle and there is a need to establish principles for the guidance of sentencing courts. An error of principle is established if it can be demonstrated that there has been a departure from proper sentencing standards leading to manifest inadequacy (Police v Castelluzzo (1997) 193 LSJS 13 at 17). Whilst Mr Kourakis QC, of senior counsel for the appellant, sought to derive some comfort from what fell from King CJ in Uznaski v Searle (1981) 26 SASR 388 at 389 as erecting a very narrow basis of principle for the interference by an appellate court with the exercise of a discretion to suspend there can be no doubt that the relevant principles relating to sentence appeals derive from what fell from the High Court in House v The King (1936) 55 CLR 499 at 505. As the Court there pointed out, if upon the facts, an order made is unreasonable or plainly unjust, an appellate court is justified in inferring that, in some way, there has been a failure properly to exercise the relevant discretion. This is so despite the fact that the nature of the error may not immediately be apparent.
A central issue which arose in the instant case was whether the approach adopted by the sentencing magistrate could be reconciled with what fell from the specially constituted Full Court in Police v Cadd & Ors (1997) 69 SASR 150. Whilst the separate judgments in that case are not readily reconcilable in certain respects, I adhere to the following comments which I recently made in Valentincic v Police (Olsson J, 4 December 1997, S6477, unreported):-
“The Full Court in Cadd seems to have approached the matter on the basis that a custodial sentence will normally flow from conviction if the relevant driving was ‘contumacious’ in the relevant sense. There is, of course, an interesting semantic debate which has ensued, both at the time of Cadd and in subsequent decisions, as to what is meant by “contumacious”. For sentencing purposes, I do not propose to embark upon a fully definitive discussion of that issue, but it does seem to me that the situation really requires some consideration of whether or not there has been a flagrant and wilful disobedience of an order of suspension, in the sense that a person deliberately drives a motor vehicle in circumstances which are more than trivial, and which involve a knowing and, in a sense, defiant breach of any order of disqualification or any statutory provision.
So much really stems from what fell from Perry J in Bates v the Police. My comments are an imperfect analysis of what he said. For present purposes, a critical consideration arising from Cadd is that which was discussed by Mullighan J in the course of his judgment. What he said with regard to the approach to imposition of penalty and to potential suspension was this; that there can be no basis, in principle, to set this type of offence apart from nearly all others, so that the fundamental principle of punishment, having to fit both the crime and the circumstances of the offender, is to be disregarded. As he argued, the use of such a severe punishment as imprisonment, to the exclusion of all other sentencing options in order, to establish efficacy of a court order is wrong in principle. I do not think that that is in conflict with anything else which fell from the other judges comprising that special Full Court. I would personally associate myself with those sentiments.”
It is stating the obvious to say that it was a pre-requisite to the exercise of the discretion to suspend conferred by s39 of the Criminal Law (Sentencing) Act that the sentencing magistrate must fairly have been entitled, on the basis of the evidence before her, to conclude that “good reason” existed for such exercise.
As Lander J pointed out in Police v Castelluzzo, because the majority of the Full Court in Police v Cadd & Ors were of the view that it would only be in circumstances where the offending was contumacious that a sentence of imprisonment ought to be imposed, it necessarily follows, in a consideration of whether “good reason” exists, that a court could not overlook that the offending was, in fact, contumacious.
That is not to say that it is not also necessary to pay due regard to all matters relevant under s39. These will include aspects such as the previous character of the offender, his or her age, the existence or otherwise of persons dependent on him or her and the likely impact of actual imprisonment on such persons, the extent of genuine contrition exhibited and other relevant personal circumstances.
As the learned Judge obviously concluded in the course of his extempore judgment, the key difficulty which the appellant faced in the present case was that not only was this a case of contumacious offending, but also it is difficult to conceive of a more serious example of such offending. What places this situation in the most serious category of its type is the taking of very serious, fraudulent steps, within two days of the relevant suspension, to establish a fictitious identity and thereafter to secure a licence to which the appellant well appreciated he was not entitled.
The appellant’s appalling prior record disentitled him to leniency. In addition, his apparent lack of true contrition and his reliance upon what can only be described as apparently fairly specious mitigating circumstances - certainly as they applied to persons asserted to be dependent on him - told strongly against him. Whilst it is true that he himself had a medical condition, the material before the sentencing magistrate fell short of establishing that a requirement to serve a custodial sentence would cause grave problems with his health.
In short I entertain no doubt that the learned Judge was undoubtedly correct when he assessed that the course adopted by the sentencing magistrate so far ignored proper sentencing standards that it could not be allowed to stand. Such mitigating circumstances as were identified were simply incapable, as a reasonable exercise of discretion, of justifying a suspension of the custodial sentence given the inherent gravity of the offending and the need to recognise the factors of general and personal deterrence.
I agree with the learned Judge that the exercise of discretion was not consistent with either what fell from the Full Court in Police v Cadd & Ors, or a proper application of s39 of the Criminal Law (Sentencing) Act. There was simply no good reason to suspend the custodial sentence which the offending conduct patently attracted. The relevant circumstances were such that the sentence imposed fell far short of recognising the enormity of the appellant’s conduct to the point that it would quite properly promote community outrage.
In the notice of appeal some criticism was directed at the adoption by the learned Judge of the period of imprisonment fixed by the sentencing magistrate and an alleged failure to review that period. All that need be said about that is that I would regard the period in question as relatively modest in relation to the totality of the offending conduct.
In my opinion there is no substance in this appeal. I would order that it be dismissed.
DEBELLE J. I agree with the substance of the reasons of Olsson J. I agree that the appeal should be dismissed.

[1998] SASC 6920

4 November 1998