WHEELER v Police - [2013] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHEELER v POLICE
[2013] SASC 80
Judgment of The Honourable Justice White
31 May 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - INSULTING, ABUSIVE, UNSEEMLY OR THREATENING LANGUAGE AND BEHAVIOUR
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
A Magistrate sentenced the appellant to 26 months imprisonment, with a non-parole period of 16 months, for nine separate offences: three offences of driving while disqualified; four offences of breaching a condition of bail; one offence of resisting arrest; and one of threatening to cause harm - the appellant complained that the sentence is manifestly excessive.
Held (dismissing the appeal):
(1) The appellant's extensive criminal history meant that he was not entitled to any leniency on account of good character and personal deterrence had to be prominent in the sentencing (at [19]).
(2) The Magistrate's notional sentences for each of the pairs of driving while disqualified and breaching a condition of bail were within an appropriate range in the appellant's circumstances - the fact that the third pair was committed after the appellant had been apprehended for the earlier offences was an aggravating factor, with the appellant choosing to offend again in a seemingly contemptuous way (at [29]-[30]).
(3) Given the multiple incursions into criminal conduct, the Magistrate was justified in determining that the notional sentences should be served cumulatively (at [31]).
(4) The Magistrate's notional sentence of 12 months imprisonment for the threaten harm offence should not be characterised as manifestly excessive (at [44]).
(i) The Magistrate was justified in proceeding on the basis that the incident must have been distressing to the victims, despite the absence of victim impact statements - the absence of evidence that the victims suffered psychological harm was not a circumstance of mitigation (at [38]).
(ii) This was not a case in which the appellant's intoxication was mitigatory - the appellant's criminal history indicates that violent conduct is not out of character for him and, in many respects, his intoxication may have made the threat more frightening (at [40]).
(iii) Licensees and the staff of licensed premises are entitled to expect the protection of the law in the discharge of their duties under the Liquor Licensing Act 1997 (SA) - accordingly, it is appropriate that sentences imposed for offending in those circumstances reflect this added need for protection and operate as a suitable general deterrent to others (at [43]).
(5) The Magistrate was correct in deciding not to reduce the aggregate of 26 months on account of the totality principle - there is no feature in the present case which justified a reduction on this basis,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WHEELER v Police

Details

AGLC: WHEELER v Police [2013] SASC 80
Case: [2013] SASC 80
Decision Date: 31 May 2013

CaseChat Overview and Summary

The appellant appealed against his sentence of 26 months imprisonment, with a non-parole period of 16 months, for nine separate offences, including driving while disqualified, breaching a condition of bail, resisting arrest, and threatening to cause harm. The appellant argued that the sentence was manifestly excessive. The court examined whether the Magistrate had made any errors in law or whether the sentence was manifestly excessive or inadequate.

The court concluded that the Magistrate was correct in not reducing the aggregate of 26 months on account of the totality principle. The appellant's extensive criminal history meant that he was not entitled to any leniency on account of good character and that considerations of personal deterrence had to be prominent in the sentencing. The court also found that the Magistrate's notional sentences for each of the pairs of driving while disqualified and breaching a condition of bail were within an appropriate range in the appellant's circumstances. The Magistrate was justified in determining that the notional sentences should be served cumulatively. The court further found that the Magistrate's notional sentence of 12 months imprisonment for the threaten harm offence should not be characterised as manifestly excessive.

The court dismissed the appeal and upheld the sentence of 26 months imprisonment, with a non-parole period of 16 months, for the appellant's nine separate offences. The court found that the sentence was not manifestly excessive or inadequate, and there was no feature in the present case that justified a reduction on account of the totality principle. The court held that the aggregate of 26 months was not so high as to be crushing.

Orders

Orders of the court

Held (dismissing the appeal):

(1) The appellant's extensive criminal history meant that he was not entitled to any leniency on account of good character and personal deterrence had to be prominent in the sentencing (at [19]).

(2) The Magistrate's notional sentences for each of the pairs of driving while disqualified and breaching a condition of bail were within an appropriate range in the appellant's circumstances - the fact that the third pair was committed after the appellant had been apprehended for the earlier offences was an aggravating factor, with the appellant choosing to offend again in a seemingly contemptuous way (at [29]-[30]).

(3) Given the multiple incursions into criminal conduct, the Magistrate was justified in determining that the notional sentences should be served cumulatively (at [31]).

(4) The Magistrate's notional sentence of 12 months imprisonment for the threaten harm offence should not be characterised as manifestly excessive (at [44]).

(i) The Magistrate was justified in proceeding on the basis that the incident must have been distressing to the victims, despite the absence of victim impact statements - the absence of evidence that the victims suffered psychological harm was not a circumstance of mitigation (at [38]).

(ii) This was not a case in which the appellant's intoxication was mitigatory - the appellant's criminal history indicates that violent conduct is not out of character for him and, in many respects, his intoxication may have made the threat more frightening (at [40]).

(iii) Licensees and the staff of licensed premises are entitled to expect the protection of the law in the discharge of their duties under the Liquor Licensing Act 1997 (SA) - accordingly, it is appropriate that sentences imposed for offending in those circumstances reflect this added need for protection and operate as a suitable general deterrent to others (at [43]).

(5) The Magistrate was correct in deciding not to reduce the aggregate of 26 months on account of the totality principle - there is no feature in the present case which justified a reduction on this basis, and the aggregate of 26 months is not so high as to be crushing (at [53]).

Background

Background to the litigation

The appellant did not dispute the accounts of the bar attendant and patron but said that he was heavily intoxicated at the time.Background The appellant is 33 years old and was born in country South Australia. He left school at the age of 15 years. The appellant has an extensive criminal history, having committed more than 170 offences before his commission of the current offences. As an adult, the appellant has been convicted of some 18 separate offences of violence. In addition, he has 14 convictions for failing to comply with a bail agreement. He has numerous convictions for traffic offences and offences of dishonesty. The appellant has been sentenced to imprisonment on 13 separate occasions. On three of those occasions, the sentences were suspended upon the appellant entering into a bond to be of good behaviour. It is a matter of aggravation that all but two of the offences for which the Magistrate sentenced the appellant were committed whilst he was subject to the suspended sentence bond into which he entered on 12 December 2011. The appellant was not, of course, to be sentenced again for his prior offending. However, his dismal criminal history did mean that he was not entitled to any leniency on account of good character, and that considerations of personal deterrence had to be prominent in the sentencing.Alleged Error of Law In relation to the offences of driving while disqualified, the appellant initially submitted that the Magistrate’s starting point of imprisonment for eight months for the third offence was an error of law because it exceeded the applicable maximum of six months imprisonment. However, that is the maximum for a first offence. The maximum for a “subsequent offence” is imprisonment for two years. Counsel acknowledged that the appellant’s three previous convictions for driving while disqualified (committed on 29 September 1997, 13 March 1998 and 17 August 1998 respectively) meant that each of the offences for which the Magistrate sentenced the appellant was a “subsequent offence”. Thus the applicable maximum penalty was imprisonment for two years and the Magistrate did not make the error of law which counsel initially attributed to him.Alleged Manifest Excess: The Notional Sentences for Driving While Disqualified The authorities have established a number of principles concerning sentencing for the offence of driving while disqualified. Many of the authorities have considered sentences imposed for first offences, but several of the established principles are pertinent in the present case:1.The offence of driving while disqualified is to be regarded as a serious offence, reflected in the fact that the maximum penalty for a first offence is six months imprisonment and for a second offence imprisonment for two years.[3]2.The seriousness of the offence lies in the defiance of the law which it involves and in its nullification of the effect of an order of disqualification imposed for the protection of the public.[4] In Police v Cadd Doyle CJ regarded the elements of deliberate disobedience of the law, coupled with the effect which widespread commission of the offence has in undermining disqualification as an effective punishment, as being the most weighty matters in sentencing for the offence of driving while disqualified.[5]3.Contraventions of s 91(5) can be difficult to detect which means that considerations of personal deterrence are important.[6]4.Often the offence of driving while disqualified will be committed by persons who have chosen to take a calculated risk and this too adds to the importance of deterrence as an element in the sentencing.[7][3] Eldridge v Bates (1989) 51 SASR 532 at 533-4.[4] Coombe v Douris (1987) 47 SASR 324 at 325; Eldridge v Bates (1989) 51 SASR 532 at 533; Police v Cadd (1997) 69 SASR 150 at 159-160, 162.[5] Police v Cadd (1997) 69 SASR 150 at 163.[6] Ibid at 162, 173.[7] Ibid at 162.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

I consider that the Magistrate was correct in deciding not to reduce the aggregate of 26 months on account of the totality principle.Conclusion For the reasons given above, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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