WHITE v Police

[2016] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

WHITE v POLICE

[2016] SASC 94

Judgment of The Honourable Justice Doyle

24 June 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES

The appellant was convicted of driving dangerously to escape police pursuit, driving without a licence and two counts of failing to comply with a bail agreement. A Magistrate imposed a sentence of nine months’ imprisonment. This sentence was to be served cumulatively upon an unexpired period of parole of two years eight months and 13 days. A non-parole period of 18 months was fixed.

The appellant appealed on the grounds that the sentence was manifestly excessive and that the Magistrate erred in not properly taking into account the appellant’s personal circumstances. The appellant also contended that the discount granted for the early guilty pleas was inadequate and that the Magistrate erred by not stating the discount granted. It was also contended that the Magistrate failed to properly take into account the period of time that the appellant spent in custody.

Held (per Doyle J), dismissing the appeal:

1.       No error in the Magistrate’s approach or exercise of discretion has been established.

Criminal Law Consolidation Act 1935 (SA) s 19AC(1); Criminal Law (Sentencing) Act 1988 (SA) s 10B; Motor Vehicles Act 1959 (SA) s 74(1); Bail Act 1985 (SA) s 17, referred to.
House v The King (1936) 55 CLR 499; R v Niesen [2015] SASCFC 165; R v Lutze (2014) 121 SASR 144; Parsons v Police [2008] SASC 339; R v McPhee [2014] SASCFC 107; R v Wakefield (2015) 121 SASR 569; R v Dwyer (2015) 121 SASR 587; R v Nguyen [2015] SASCFC 40; R v Deng [2015] SASCFC 176; R v Palmer [2016] SASCFC 34, considered.

WHITE v POLICE
[2016] SASC 94

Magistrates Appeal.

DOYLE J:

1. Following pleas of guilty in the Magistrates Court, the appellant was convicted on 15 December 2015 of driving dangerously to escape police pursuit (contrary to s 19AC(1) of the Criminal Law Consolidation Act 1935 (SA)), driving without a licence (contrary to s 74(1) of the Motor Vehicles Act 1959 (SA)) and two counts of failing to comply with a bail agreement (contrary to s 17 of the Bail Act 1985 (SA)). The first two counts related to a police pursuit that occurred at about 1.45 am on 7 March 2015. The second two counts related to the appellant’s failure to submit a urine sample, and breach of a pass out condition, on 28 April 2015.

2. The Magistrate imposed a head sentence of nine months imprisonment, reduced from a notional head sentence of 12 months.  The Magistrate ordered that this sentence be served cumulatively upon an unexpired period of parole of two years eight months and 13 days.  His Honour fixed a non-parole period of 18 months, and ordered that the sentence of imprisonment commence from 14 July 2015 (when the appellant was taken into custody).

3. In this appeal against sentence, the appellant relies upon the following grounds:

   1.   The sentence was manifestly excessive.

   2.   The Magistrate erred in not adequately taking into account the appellant’s personal circumstances, attempts at rehabilitation, contrition and remorse.

   3.   The Magistrate erred in not taking into account the appellant’s prospects of rehabilitation.

   4.   The Magistrate erred in not stating the discount granted for the guilty pleas.

   5.   The reduction of 25 per cent from the starting point was manifestly inadequate.

   6.   The Magistrate erred in failing to adequately explain the basis of the sentence imposed insofar as he took into account the time in custody and with respect to the discount applied.

   7.   The Magistrate erred in failing to take into account the time in custody.

   The Magistrate’s sentencing remarks

4. After submissions on sentence from the police prosecutor and defence counsel, the Magistrate delivered ex tempore sentencing remarks.

5. His Honour commenced by noting the pleas of guilty.  In relation to the count of driving without a licence, the Magistrate recorded a conviction without further penalty.  As mentioned, the two counts of breaching home detention bail involved a failure to provide a urine sample and breach of a pass out condition.  The Magistrate described this offending as “quite minor” given the circumstances explained by defence counsel. 

6. The Magistrate then remarked:

   However, the drive dangerously to escape police pursuit matter is by no means a minor matter, it is an extremely serious example of its kind and it is not the first time that you have been sentenced to a term of imprisonment for offending of that kind, because on 3 December 2009, you committed a similar offence, for which you received a sentence of imprisonment of six months.  During the course of the police pursuit, which was extensive, you repeatedly travelled through red lights at high speed with a passenger in a hire car.  The vehicle was spiked, but that did not stop you and you ran away.  Quite frankly, I was surprised to see that you were granted home detention bail.  Nevertheless, you did spend a period on home detention bail after 20 April and you were in custody from 7 March to 20 April and I take that period into consideration.

   I intend to impose a global penalty, bearing in mind your personal circumstances and your expressed contrition, your guilty pleas and your hopes for the future.  Doing the very best I can, but given the seriousness of your offending, I would have sentenced you to a term of imprisonment of 12 months, but which I reduce to nine months.  As the law is, that period of nine months, which is for all offences, must be served cumulatively upon the unexpired portion of your parole, which I note to be 2 years 8 months and 13 days.  So when added to that period, the new head sentence is 3 years, 5 months and 13 days, which must and is to commence from 14/7/15.

   Again, doing the best I can, but reflecting your serious prior offending, I set a non-parole period which is to commence also from the same date of 14 July 2015 of 18 months.

7. The Magistrate added that in respect of the driving dangerously charge, the appellant was to be disqualified from holding or obtaining a driver’s licence for a period of three years. 

8. It was acknowledged by counsel appearing on the appeal that, for practical purposes, the sentence of imprisonment imposed by the Magistrate related entirely to the offence of driving dangerously to escape police pursuit.  This was an appropriate acknowledgement given his Honour’s approach in relation to the other offences.  The appeal was conducted on that basis, and I proceed on that basis.

   The circumstances of the offending

9. The appellant contended that the Magistrate erred in describing the circumstances of the count of driving dangerously to escape police pursuit as “an extremely serious example of its kind”, and in particular in finding that the pursuit was “extensive” and that the appellant “repeatedly travelled through red lights at high speed”.  In support of this submission the appellant relied upon the fact that the pursuit occurred from about 1.50 am and over roads where the speed limit was generally higher than 60 kilometres per hour; that the police evidence as (summarised by the prosecutor) did not mention the distance travelled; that no embarrassment to other drivers was alleged; and that the appellant slowed his vehicle when travelling through the red lights.

10. It is correct that the prosecutor did not state (and the police evidence did not reveal) the distance travelled in the pursuit.  However, it is readily apparent from the number of roads and suburbs traversed that the pursuit was aptly described as “extensive”.  As to the appellant’s speed during the travel, the prosecutor made reference to the appellant at various stages travelling at speeds of no less than 140 km/h in a 70 km/h zone, 130 km/h in an 80 km/h zone, 120 km/h in a 70 km/h zone, 120 km/h in a 60 km/h zone, 110 km/h in a 60 km/h zone, 115 km/h in a 60 km/h zone and 130 km/h in a 60 km/h zone.  Further, while reference was made to the appellant having “slowed” when running the red lights he ran, there was nothing to suggest that the appellant was travelling at a safe or appropriate speed when travelling through the five red lights he ran.  In my view, there was no error in the Magistrate describing the appellant as having repeatedly travelled through red lights at speed. 

11. In any event, regardless of how his Honour described the detail of the offending, I agree with his Honour’s overall conclusion that this was an extremely serious instance of the offence of dangerous driving to escape police pursuit.  I acknowledge that the events occurred in the early hours of the morning when traffic would have been relatively light, and that there was no specific allegation of embarrassment to any other vehicle on the road at the time.  However, the combination of the distance and duration of the pursuit, the speed at which it occurred, the fact that it involved the running of multiple red lights at significant intersections, and the fact that the appellant had a passenger (his partner) in his car justified the Magistrate’s view of the seriousness of the offending.  The appellant’s conduct involved placing himself, his passenger, the police and other road users in significant danger. 

12. Also relevant to the circumstances of the offending was that even when the appellant’s vehicle was disabled through the use of road spikes, the appellant continued his attempt to evade the police on foot.  The only matter put by way of explanation for the offending was anxiety on the part of the appellant, triggered by a fear that if stopped by the police he might face being imprisoned on account of a parole board warrant for his arrest.  This explanation hardly assists the appellant.

    The appellant’s personal circumstances

13. In determining the appropriate head sentence, it was of course appropriate that the Magistrate take into account the appellant’s personal circumstances.  Various matters were put in submissions before the Magistrate.  Counsel for the appellant said to the Magistrate that the appellant, who was then 34 years of age, was remorseful and aware of the risks his conduct caused.  It was said that he took full responsibility for his actions, was contrite, and had taken steps to make reparations for damage caused to the car (which had been hired by his partner). 

14. Counsel for the appellant also submitted to the Magistrate that the appellant was a man who had experienced problems with drugs and alcohol since a young age, arising out of him mixing with older friends who were a negative influence on him.  His use of drugs and alcohol was also partly explained by his pursuit of relief from the pain he suffered as a result of injuries incurred in a 2009 motor vehicle accident.  It was said that the appellant had tried to address his problems, and had succeeded in almost completing an electrician’s apprenticeship.  He had been unable to complete it, and unable to find employment, as a result of his periods in custody, but he maintained these goals.  Finally, it was said that the appellant considered his partner’s daughter to be like a step-daughter to him and that he wished to be a family man.

15. In appeal grounds 2 and 3, the appellant complains that the Magistrate did not take into account, or did not adequately take into account, various aspects of the appellant’s personal circumstances. 

16. Insofar as the complaint is that the Magistrate did not take matters into account at all (which is what is contended in ground 3 in relation to prospects of rehabilitation), I do not consider that this has been made out.  I have summarised the matters that were put by way of submission as to the appellant’s personal circumstances.  In circumstances where the Magistrate delivered ex tempore reasons immediately following the submissions, I would not lightly infer that these matters were overlooked.  To the contrary, I interpret his Honour’s reference to “your personal circumstances and your expressed contrition, your guilty pleas and your hopes for the future” as a compendious reference to the matters put by way of submissions.  In the circumstances, I do not think it was necessary for his Honour to say more than he did.  I do not think it was necessary for the Magistrate to use the word “rehabilitation” when he had mentioned the matters put by the appellant’s counsel to the Magistrate as relevant to the appellant’s personal circumstances, including those that were relevant to the appellant’s prospects of rehabilitation.

17. Insofar as grounds 2 and 3 complain merely of the weight afforded to the appellant’s personal circumstances, then these grounds are better seen not as matters independently establishing error in the sentencing discretion in the sense required by House v The King,[1] but rather as mere particulars of the ground 1 allegation of manifest excess.[2]

    [1]    House v The King (1936) 55 CLR 499 at 504-505.

    [2]    R v Niesen [2015] SASCFC 165 at [59], citing R v Lutze (2014) 121 SASR 144 at [46]-[47].

    Appellant’s previous offending and time in custody

18. In addition to these mitigatory personal circumstances, the Magistrate was also required to take into account the appellant’s extensive history of offending.  At the time of the subject offending, the appellant had been on parole since 29 September 2014 for the following sentences.

    1.   On 29 September 2011, the appellant was sentenced by the District Court for the aggravated offence of committing theft using force, to a head sentence of four years six months with a non-parole period of two years three months, commencing on 6 June 2010.

    2.   On 2 November 2011, the appellant was sentenced by the District Court for the offence of committing theft using force, to a head sentence of two years six months, which was to be served cumulatively upon the sentence imposed on 29 September 2011, giving a new combined head sentence of seven years and a non-parole period of two years six months commencing on 6 June 2010.

    3.   On 4 October 2012, the appellant was convicted and sentenced by the Magistrates Court, for the aggravated offence of committing assault, to a head sentence of seven months, which was to be served cumulatively upon the sentence imposed on 2 November 2011 giving a new combined head sentence of seven years seven months, with a non-parole period of two years eight months, commencing on 6 June 2010.

19. It was also significant that the appellant had previously (in April 2011) been convicted of dangerous driving to escape police pursuit.  He was sentenced on that occasion to six months imprisonment.

20. Following his arrest on 7 March 2015 in connection with the first two offences the subject of these proceedings, the appellant remained in custody until 22 April 2015,[3] a period of about six weeks.  The appellant was then on home detention bail from 22 April 2015 until 14 July 2015, a period of almost three months, but interrupted by a further period of 8 days in custody between 1 and 8 May 2015.  A parole board warrant was executed on 14 July 2015.  The appellant was taken into custody on that day, and has remained in custody. 

    [3] The bail agreement was signed on 20 April 2015, but parole board documentation suggests the appellant remained in custody until 22 April 2015.

21. On 6 October 2015, the Parole Board cancelled the appellant’s parole for a number of breaches of conditions and resolved that the appellant was liable to serve two years eight months and 13 days imprisonment from 14 July 2015, subject to any application by the appellant for a further non-parole period. 

    Head sentence not manifestly excessive

22. Turning to ground 1, as the Full Court of this Court recently reiterated in R v Niesen,[4] in determining whether the sentence is manifestly excessive the Court is to have regard to the maximum sentence prescribed by the law, the standards of sentencing customarily observed for offences of the relevant kind, the seriousness of the offence committed when compared to other offences of that kind, and the personal circumstances of the offender.  Further, in accordance with the principles established in House v The King,[5] the Court will not interfere with the sentence passed by the Magistrate merely because it has a different view about the most appropriate sentence.  Rather, the appellate power to interfere with the sentence on the grounds of manifest excess is only engaged if the Court is satisfied that the Magistrate’s discretion miscarried in the sense that a sentence was imposed that was outside the range of sentences that could be justly imposed for the offences in question consistently with sentencing standards.[6]

    [4]    R v Niesen [2015] SASCFC 165 at [53].

    [5]    House v The King (1936) 55 CLR 499 at 504-505.

    [6]    R v Niesen [2015] SASCFC 165 at [20], [23].

23. Bearing in mind that the maximum penalty for driving dangerously to escape police pursuit is three years imprisonment, it is my view that the notional head sentence of 12 months (before any reduction for earlier time in custody, and the appellant’s guilty pleas) was within the range of appropriate penalties for the offending in question.  I agree with the Magistrate that while the other three counts were not significant, the offence of driving dangerously to escape police pursuit warranted a significant term of imprisonment.  The circumstances of the offending was serious, and the nature of the offence required that significant weight be afforded to general deterrence.[7]  Given the appellant’s history of offending, including a previous similar offence, personal deterrence was also a significant consideration.  While the appellant has some prospects of rehabilitation, and his personal circumstances (as outlined above) were relevant, I do not think these matters took the sentence imposed outside the range of appropriate penalties for the appellant’s offending.  To the contrary, I consider the 12 months imprisonment imposed by the Magistrate was an entirely appropriate penalty.

    [7]    Parsons v Police [2008] SASC 339 at [70].

24. It follows that I reject the contention that the notional head sentence was manifestly excessive. 

    Discount for guilty pleas

25. Turning to the discount for the appellant’s guilty pleas, and grounds of appeal 4 and 5, the Magistrate reduced the notional head sentence of 12 months imprisonment to 9 months imprisonment.  This is a reduction of 25 per cent.  It is agreed that under s 10B of the Criminal Law (Sentencing) Act 1988 (SA) the appellant was entitled to a reduction of “up to 30 per cent”.

26. It was pointed out by the appellant that the Magistrate did not expressly state that the reduction was on account of the guilty pleas, nor state what the percentage reduction was.  While this is so, it is clear from his Honour’s remarks – including the references to the guilty pleas – that this is what the reduction was for.  In circumstances where the notional and reduced head sentence were both set out, it is of no consequence that the Magistrate did not mention the percentage reduction.  It was easily calculated as 25 per cent.

27. Potentially more significant is the failure of the Magistrate to explain why the figure of 25 per cent was selected.  Several decisions of this Court,[8] in emphasising the utilitarian rationale for the legislative scheme relating to reductions for guilty pleas, suggest that defendants will generally be entitled to discounts at or about the maximum for the relevant category of case in the absence of any good reason for departing from the maximum.  Those authorities also suggest that where the discount awarded is materially less than the maximum, the reasons should be explained in the sentencing remarks to the extent they are not otherwise obvious.

    [8]    R v McPhee [2014] SASCFC 107 at [46]; R v Wakefield (2015) 121 SASR 569 at [54]; R v Dwyer (2015) 121 SASR 587 at [34]-[35]; R v Nguyen [2015] SASCFC 40 at [17]-[19].

1. While accepting the effect of these authorities, and acknowledging that I am bound by them, some common sense and flexibility is required in their application to a given case.  Mathematical precision is not required, and indeed is often inappropriate.  Rounding, on the other hand, is often appropriate.[9]  In applying a discount of up to 30 per cent, while it would be permissible for a Magistrate to adjust the sentence by a more precise amount of weeks and days, it is my view that it will often also be appropriate for a Magistrate to round the sentence off to the nearest month.[10]  Using the notional head sentence here of 12 months as an example, a precise reduction of 30 per cent would result in a sentence of 8.4 months.  While the Magistrate would have been entitled to impose a reduced sentence of eight months and 12 days, or eight months and two weeks, in my view it would also have been appropriate to round the reduced sentence up to the nearest full month, that is, to nine months.  I point out that rounding down to eight months may not have been permissible because the outcome would have been to produce a discount slightly in excess of 30 per cent, rather than “up to 30 per cent”.[11] 

   [9]    R v Deng [2015] SASCFC 176 at [52]-[53].

   [10]   R v Palmer [2016] SASCFC 34 at [19].

   [11]   R v Deng [2015] SASCFC 176 at [53].

2. Here, there was no suggestion in submissions before the Magistrate, or in the Magistrate’s reasons, of any basis for the appellant receiving less than a percentage at or about the relevant maximum of 30 per cent.  In those circumstances, the preferable approach would have been to reduce the sentence of 12 months to eight months and two weeks.  By rounding up to the nearest full week, a discount of very close to 30 per cent would have been achieved.  However, I do not think the Magistrate erred in adopting an approach of rounding the discounted sentence up to the nearest full month, with the result that the actual discount received was 25 per cent.  Ideally, and in the interests of transparency, the Magistrate should have mentioned this as the explanation for the percentage discount in fact received by the appellant.  But in circumstances where I am satisfied that it is appropriate to infer that rounding to the nearest full month was the explanation for the reduction made, and given that the percentage awarded was not in any event substantially less than the maximum of 30 per cent, I do not consider that the Magistrate erred in his approach to the discount for the guilty plea.

   Earlier time in custody

3. In appeal grounds 6 and 7, the appellant complains that the Magistrate failed to take into account the period of time the appellant spent in custody between 7 March 2015 and 20 April 2015, a period of approximately six weeks.

4. In the passage from the sentencing remarks extracted earlier in these reasons the Magistrate noted this earlier period of custody and then said “I take that period into consideration.”  While it is thus clear that his Honour intended to take the earlier period of custody into account, it is not clear on the face of his sentencing remarks whether, and if so, how, his Honour in fact did so.  In the next paragraph of his remarks the Magistrate referred to a notional head sentence of 12 months, which he reduced to nine months.  For the reasons explained, I interpret this reduction as being entirely on account of the appellant’s guilty pleas.  The Magistrate did not make reference to any other reduction.  While the Magistrate did backdate the sentence to 14 July 2015, this did not take account of the period of custody from 7 March 2015 to 20 April 2015.  It merely addressed the period of custody from 14 July 2015 onwards. 

5. The appellant contended that the Magistrate either overlooked bringing to account the foreshadowed allowance for previous time in custody, or did so by reason of an unstated discount from a notional head sentence which was not specified, but greater than the 12 month period mentioned in the reasons.  It was contended that even if the Magistrate did adopt this latter approach, the Magistrate fell into error in not identifying the notional head sentence and discount applied.  A defendant is entitled to know the head sentence he has received, and the discount applied.  Transparency as to allowances for previous time in custody is required.  The appellant relied in particular upon the decision of this Court in R v Deng.[12]

   [12]   R v Deng [2015] SASCFC 176 at [17], [23]-[28].

6. While I accept the principles relied upon by the appellant, the factual premise for the contentions was not made out.  Closer examination reveals that the Magistrate did in fact take account of the earlier period in custody.  During the course of sentencing submissions, the Magistrate was provided with a copy of the Parole Board’s advice dated 6 October 2015.  Not only did that document provide the Magistrate with the unexpired period of parole relied on in his sentencing remarks (two years eight months and 13 days), but it also indicated that this period had been reduced to reflect the earlier periods in custody between 7 March and 22 April 2015, and between 1 May and 8 May 2015.  Thus, despite the absence of any express reference to this detail in the Magistrate’s remarks, it is clear that the appellant did receive credit for the days spent in custody.

7. The fact that the unexpired period of parole took account of this earlier period of custody may explain why defence counsel before the Magistrate did not make any reference to the need to make some separate allowance for this earlier period in custody.  In any event, in circumstances where the sentence imposed by the Magistrate did in fact make full allowance for the earlier period in custody, no error has been established.

8. For completeness, I note that no complaint is made that the Magistrate did not make any allowance for the period of home detention bail between 22 April 2015 and 14 July 2015.  While it is not entirely clear to me whether his Honour intended to make any allowance, it was within his Honour’s discretion to not make any allowance for this, particularly in circumstances where the appellant breached the conditions of that bail. 

   The non-parole period

9. Having arrived at a total head sentence of three years, five months and 13 days, the Magistrate fixed a non-parole period of 18 months.  While a challenge was made to this non-parole period, I do not accept that there was any merit in this challenge.  Personal circumstances carry greater weight at this stage of the sentencing process.  However, there is nothing in the circumstances personal to this appellant (as outlined earlier) which warranted a lesser non-parole period.

   Conclusion

10. For the reasons I have set out, I dismiss the appeal.