Villani v Police - [2022] SASC 88

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
VILLANI v POLICE
[2022] SASC 88
Judgment of the Honourable Justice Kimber (ex tempore)
16 August 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against the sentence imposed by a Magistrate for Driving under Disqualification contrary to s 91(5) of the Motor Vehicle Act 1959 (SA) (MVA). The appellant gave evidence before the Magistrate to the effect he did not believe he was disqualified as after receiving the relevant notice of disqualification he received a second notice which related to a period after the driving the subject of the offence. The evidence of the appellant was he had made an honest mistake. At the time of sentence, the appellant had three previous convictions for Driving under Disqualification. After a reduction of 30 per cent for the plea of guilty, the Magistrate imposed a sentence of six weeks to be served on home detention.
The Notice of Appeal set out two grounds to the following effect:
1. The Magistrate did not give ‘due consideration’ to the honest mistake of the appellant.
2. The sentence was manifestly excessive.
Held per Kimber J, dismissing the appeal:
1.A complaint that a relevant matter was not given ‘due consideration’ is not an appealable error.

2. The sentence was not manifestly excessive.
Motor Vehicles Act 1959 (SA) s 91; Sentencing Act 2017 (SA) s 3, referred to.
House v The King (1936) 55 CLR 499, applied.
Police v Chilton (2014) 120 SASR 32; Eldridge v Bates (1989) 51 SASR 532; Police v Cadd (1997) 69 SASR 150; Coombe v Douris (1987) 47 SASR 324, considered.

VILLANI v POLICE
[2022] SASC 88
Magistrates Appeal: Criminal
Kimber J:
Introduction

Mr Villani has appealed the sentence imposed by a Magistrate on 30 November 2020 for Driving Under Disqualification contrary to s 91(5) of the Motor Vehicle Act 1959 (SA) (MVA). The offence was committed on 7 June 2019. As this was a subsequent offence, the maximum penalty available was imprisonment for two years. After a reduction of 30 per cent for the plea of guilty, the Magistrate imposed a sentence of six weeks to be served on home detention.
At the time of the plea of guilty, submissions and sentence, the appellant was represented. He was not represented on this appeal.
I dismiss the appeal. The grounds filed are without merit.
Background
The proceedings in this Court have an unfortunate history. Given the time which has passed since sentence it is appropriate to set out some of that history.
The notice of appeal was filed on 23 December 2020. The first date fixed for the hearing of the appeal was 8 February 2021. On 4 February 2021 the appellant wrote to the Court requesting an adjournment of six to eight weeks. On 5 February 2021 the hearing of the appeal was adjourned to 12 April 2021. On 29 March 2021 the hearing of the appeal was adjourned to 20 April 2021. On 20 April 2021 the appellant appeared unrepresented, but indicated he wished to be represented. The appeal was adjourned to 26 May 2021. Due to court availability, on 25 May 2021, the date was changed to 28 May 2021. On 27 May 2021 the appellant asked for the hearing to be adjourned due to his ill health. The appeal was then listed for hearing on 6 July 2021. That date was later changed to 20 July 2021. On 19 July 2021 that date was adjourned for reasons which are not obvious. It is also unclear why the matter did not advance until May 2022. On 16 May 2022 the appellant was contacted by the Court. The appellant confirmed he wished to pursue his appeal and the matter was referred to the list of Magistrates Appeals to be heard in June 2022. On 30 May 2022 the matter was listed for hearing on 23 June 2022. On 20 June 2022, the appellant advised he had tested positive for COVID-19 and a new hearing date of 29 June 2022 was fixed.
On 29 June 2022 the appellant appeared before me. He was unrepresented and sought an adjournment. I granted an adjournment to today. Mr Villani told me that Mr Richards, the solicitor who acted for him before the Magistrate, would act for him in this appeal. The hearing of the appeal was re-listed on 16 August 2022. On 29 June 2022 I told the appellant he should not expect the hearing listed on 16 August 2022 would be adjourned. I also told him that if he came without Mr Richards, he could expect the appeal would be heard with him not being represented. On 16 August 2022, the appellant sought an adjournment. The appellant said Mr Richards had declined to act due to a conflict. The appellant said he had spoken to another solicitor who was prepared to act, but could not be present as he was in another court. The appellant said he had first spoken to that solicitor today. I refused the application for an adjournment.
The Grounds of Appeal
The grounds of appeal as set out in the appellant’s Notice of Appeal are as follows:
1.The Honourable Magistrate erred in not giving due consideration to the notice of disqualification served on the defendant by the Services SA.
2.Sentence was manifestly excessive.
The appellant did not file any written submissions, nor make oral submissions despite being given the opportunity to do so.
Ground 1 – Failure to give ‘due consideration’ to a mistaken belief
To understand this ground, it is necessary to set out some history of the appellant’s disqualification. On 26 March 2019 the appellant was served with a notice of disqualification and he acknowledged receipt of that notice. That disqualification commenced twenty-eight days after the notice was served. On 7 June 2019 the appellant was stopped by police at Vale Park. Checks on his licence revealed the disqualification the subject of the notice served on 26 March 2019. The appellant produced to the police paperwork for a licence disqualification to commence on 23 August 2019 which was to extend to 22 November 2019. There is no dispute the paperwork produced by the appellant related to a different disqualification than the one the subject of the notice received on 26 March 2019 and which made him disqualified on 7 June 2019. It is the belief of the appellant about the effect of the paperwork for the licence disqualification commencing on 23 August 2019 which the appellant contends was not given ‘due consideration’ by the Magistrate.
An Information charging the appellant with the breach of s 91(5) of the MVA on 7 June 2019 was filed in the Magistrates Court on 11 February 2020. The appellant appeared in the Magistrates Court on 25 March 2020 and 5 May 2020. On both dates the appellant was represented and the matter adjourned. There were further adjournments, apparently for the ordering of the reports, before the matter was finalised on 30 November 2020.
The appellant’s evidence before the Magistrate
On 30 November 2020 the appellant was represented. The appellant gave evidence. During his evidence, the appellant agreed he had received the notice in March 2019, knew the disqualification was to start in about a month and that he had spoken to his employer about that disqualification. Particularly relevant to ground 1, the appellant agreed that before 7 June 2019 he received a letter setting out that he was disqualified from 23 August 2019. On that matter, his evidence included:[1]
AI did and there’s the honest mistake. I thought it was starting on the 23^rd, which I should have read better or got a lawyer to have a look at it. So I just presumed that my disqualification started on 23 August.
[1] AMC-20-1933 Transcript of Proceedings, 3 August 2022, p. 2.
The appellant also said he would not have driven on 7 June 2019 had he known he was disqualified.
As might be obvious, the purpose of the evidence of the appellant was to establish a matter in mitigation. In short, that he had not deliberately driven while disqualified, but had made an honest mistake as he believed he was only disqualified from 23 August 2019.
Sentencing
After the appellant had given evidence, the Magistrate proceeded to sentence. The sentencing remarks show the Magistrate did not overlook the evidence of the appellant about an honest mistake. The Magistrate said ‘what I have been told is there was some misunderstanding on your part and you thought you were not suspended, at least not suspended immediately’.[2] The Magistrate also referred to what he described as a ‘concession’ by counsel for the appellant that ‘at best’ the appellant was ‘reckless about (his) ability to drive’.[3]
[2] Remarks on Penalty of Magistrate Fahey, 30 November, p. 1.
[3] Ibid.
Discussion
Ground 1 must be dismissed. The contention the Magistrate failed to give ‘due consideration’ to the mistaken belief of the appellant is a complaint about the weight given to that issue. In accordance with the principle in House v The King,[4] it is not an appealable error that a sentencing Magistrate has placed too little or too much weight on one or more relevant sentencing consideration.[5] It is in the nature of the sentencing discretion that different decision makers will evaluate considerations relevant to its exercise in different ways.[6]
[4] House v The King (1936) 55 CLR 499.
[5] Police v Chilton (2014) 120 SASR 32, [17].
[6] Ibid.
Notwithstanding Ground 1 is dismissed, I will treat the issue of the mistaken belief of the appellant as a particular of ground 2. Ground 2 is a complaint of ‘outcome error’.
Ground 2 – Manifest Excess
The contention the sentence was ‘manifestly excessive’ is a complaint the sentence is ‘unreasonable or plainly unjust’ such that it can be inferred that ‘in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’.[7]
[7] House v The King (1936) 55 CLR 499, 505.
An appropriate starting point for consideration of this ground is what has been said by this Court about sentencing for this offence. It has been held that the ordinary punishment for Driving Under Disqualification is imprisonment.[8] This does not mean however that every offender convicted of Driving Under Disqualification must be imprisoned. As Doyle CJ observed in Police v Cadd:[9]
….but this does not mean that every offender must be imprisoned, nor does it mean that the power under s 18 of the Sentencing Act is effectively displaced in relation to this offence. The ordinary punishment is applicable to the ordinary case. The ordinary punishment is an approximate standard to be applied making due allowance for the circumstances of the particular case. An offender who is aware that he or she is in breach of the law, who has no substantial excuse for the breach, in effect admits to indifference to the law's requirement in favour of the offender's own convenience. The need to deter others from committing the same offence, and the corrosive effect upon licence disqualification as a punishment of this offence, combine to require severe punishment in such cases unless the law is to be mocked. But the circumstances of the offence and the circumstances of the offender may disclose matters which provide a basis for a less severe approach, quite apart from the relevance of the circumstances of the offender to the question of suspension.
[8] Eldridge v Bates (1989) 51 SASR 532, 533-534; Police v Cadd (1997) 69 SASR 150, 166, 173, 179.
[9] Police v Cadd (1997) 69 SASR 150, 166-167.
Before being sentenced for the offence the subject of this appeal, the appellant had three prior convictions for Driving Under Disqualification. Two had resulted in suspended terms of imprisonment. The appellant was not to be sentenced again for his past offending, but those convictions are relevant to the leniency the Magistrate could extend, the need for personal deterrence, whether good reason existed to suspend the sentence and the suitability of the appellant to serve a sentence on home detention. The history of the appellant was also relevant to the need to protect the community. The protection of the safety of the community is the primary purpose for sentencing and has importance in sentencing for Driving Under Disqualification.[10] As King CJ observed in Coombe v Douris,[11] driving while disqualified ‘nullifies the effect of the order of disqualification which is imposed for the protection of the public’.
[10] Sentencing Act 2017 (SA) s 3.
[11] Coombe v Douris (1987) 47 SASR 324, 325.
In Police v Chilton,[12] the appellant had been sentenced to imprisonment for six weeks for driving disqualified. He had two prior convictions. Kourakis CJ held:[13]
It can be accepted that imprisonment is a sentencing option of last resort. However, that common law and statutory, principle is not applied by a sentencing judicial officer in each individual case free of the consideration of its application to offences of the kind in question by other courts and the Full Court of this Court in particular. The reasons of this Court in Cadd, which was recently considered by this Court in Police v Nissen, show that such is the need for personal deterrence and general deterrence for offences of this kind that a recidivist offender with no compelling reason to drive can, in the ordinary course, expect to be imprisoned notwithstanding that statutory and common law principle. To put it bluntly, so great is the need to ensure that disqualification orders operate as an effective sanction in ensuring compliance with the rules of the road that imprisonment will, generally, be resorted to in the case of offenders who repeatedly flout judicial or administrative orders of disqualification.
[12] Police v Chilton (2014) 120 SASR 32.
[13] Ibid [21].
The Chief Justice further observed: [14]
It certainly cannot be that a moderate sentence of six weeks imprisonment against a maximum penalty of two years imprisonment for a third offence of drive disqualified, in the absence of a compelling reason to drive, is manifestly excessive.
[14] Ibid [23].
In this case, there was no ‘compelling reason to drive’. This is not to overlook the Magistrate found there had been ‘some misunderstanding’ on the part of the appellant about whether he was suspended on 7 June 2019. That was a matter in mitigation, but it was a matter which had to be balanced with all other relevant matters. The evidence of the appellant was to the effect that, although he had made an ‘honest mistake’, he should have read the letter received about a disqualification from 23 August 2019 with more care. Given the history of the appellant, it was open to the Magistrate to conclude, as he did, that ‘prudence’ demanded the appellant be more careful.
Given the history of the appellant, the conclusion of the Magistrate the appellant should have been more careful and the importance of general and personal deterrence, the sentence imposed was not manifestly excessive.
Ground 2 must be dismissed.
Orders
1. The appeal is dismissed.