Whiston v Police No. Scciv-03-123

[2003] SASC 71

WHISTON v POLICE
[2003] SASC 71

Magistrates Appeal

1. DEBELLE J           This is an appeal against sentence.

2. On 16 January 2003 in the Adelaide Magistrates Court the appellant pleaded guilty to two offences which occurred at Woodcroft on 29 August 2002. The first was driving an unregistered motor vehicle. The second was driving whilst disqualified from holding or obtaining a driving licence.

3. On 3 December 2001 the appellant had been convicted of a number of offences for which he was sentenced to 16 months imprisonment with a non-parole period of three months. On that occasion he was disqualified from holding or obtaining a driving licence for 12 months. The driving on 29 August 2002 therefore occurred in breach of that order of disqualification.

4. The offending occurred while the appellant was on parole. The unexpired portion of the parole period was then seven months and four days. The magistrate found that the appellant had acted contumaciously when driving whilst disqualified from doing so. He ordered that the appellant serve a period of one month’s imprisonment. He added that sentence to the unexpired parole period which resulted in a total sentence amounting to eight months and four days.

5. The appellant appealed against the sentence on the grounds that it is manifestly excessive and that the magistrate had erred in finding that the appellant’s offending was contumacious. The appellant now withdraws those grounds of appeal which appeal against the magistrate’s finding that the offending was contumacious. They are grounds 2, 4 and 7. The appellant submits that the sentence was manifestly excessive in that the magistrate failed to take into account the time spent in custody prior to sentencing.

6. It is common ground that the appellant had been in custody for 35 days before he was sentenced. It appears that the appellant will not be able to have that period of 35 days taken into account. That appears to be the consequence of the operation of both s 73 and s 75 of the Correctional Services Act 1982 in the particular circumstances of this case. The appellant had breached conditions of his parole which had caused the Parole Board pursuant to s 74 of the Correctional Services Act to direct that the appellant serve in prison periods of time which he would otherwise have spent on parole.

7. He was imprisoned for breaches of non-designated conditions of his parole. He has been in custody on remand awaiting the Parole Board’s determination for breaches of those non-designated parole conditions. Time served in prison for breaches of the non-designated conditions and the time spent on remand in relation to them would in the absence of intervening circumstances have been deducted from the parole period pursuant to s 74 of the Correctional Services Act.

8. The first intervening circumstance is s 75 of the Correctional Services Act which requires that the appellant serve the balance of the parole period unexpired at the date of the commission of the offence.

9. In addition, the appellant had breached a designated condition of his parole. One of the designated conditions of his parole was that he not drive whilst disqualified from doing so. He was also on remand awaiting the Parole Board’s determination of any penalty for that breach. By reason of the terms of s 73 of the Correctional Services Act the 35 days which the appellant has spent in custody cannot be taken into account because s 73 requires that he serve that portion of the sentence unexpired at the date of the commission of the breach of the condition, that is, say, 29 August 2002.

10. In short, the appellant will receive no credit for 35 days spent in custody after the commission of this offence. It is by reference to these matters that the appellant contends that the magistrate ought to have convicted the appellant without penalty. Even allowing for the fact that the offending in this case was contumacious, it did not call for a penalty in excess of about one month. The offending did not cause any loss to any person. It seems also that the fact that the appellant would not get any benefit for the 35 days spent in custody were not drawn to the magistrate’s attention. This was an experienced magistrate and, had those issues been identified, the magistrate may well have taken another course.

11. In this case I do not have the benefit of the reasons of the magistrate. The magistrate has reported that the reasons have been lost. He says that on 16 January 2003 “in the hurly-burly of a general list comprising some 60 matters the record of my remarks became separated from the file. A careful search has failed to reunite them. I did not make any notes that would now refresh my memory of the matters that were in my mind when I sentenced Mr Whiston”. A hearing from a magistrate is a rehearing in the sense described in Taylor v Hayes (1990) 53 SASR 282 at 289 – 290. I will rehear the matter and form my own conclusions with due regard to the conclusion reached by the magistrate, that is to say, I will not lightly set aside the order of the magistrate but at the same time will not shrink from overruling it if I think it appropriate to do so. For the reasons that I have already expressed, I think it is appropriate to set aside the sentence. For these reasons, the appeal will be allowed.

12. It is necessary to refer to one other matter. I acknowledge that the magistrate had a busy list. I have already referred to his letter when he speaks of the “hurly-burly” created by that list. However, I do not think as a general rule it is possible for an offender to assert that the offending has not been contumacious in the absence of sworn evidence. This appellant said that he and his friend did not have money sufficient to pay a taxi fare. On its face, that does not seem to be likely. A taxi fare from Woodcroft to Brighton would not have been particularly expensive and it is hard to believe that the necessary fare could not have been found by the appellant and his friend. This is just but one issue where it would have been necessary for the magistrate to hear evidence to form a view as to whether the assertion was correct. The Magistrates should require offenders seeking to explain their conduct to give evidence on oath unless the facts are agreed with the prosecution.

13. There will be orders as follows:

    1.Appeal allowed.

    2.The order of the magistrate made on 16 January 2003 will be varied as to count 2 by setting aside the conviction and order of imprisonment and in lieu thereof order that there be a conviction without penalty.