Williams v Police - [2005] SASC 486

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILLIAMS v POLICE
Judgment of The Honourable Justice Duggan
22 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence imposed by a magistrate for a series of admitted driving offences committed over a period of approximately 4 years - offences include several counts of driving whilst unlicensed and driving with prescribed concentration of alcohol - whether offence dealt with ex parte pursuant to Summary Procedure Act 1921 s 62A is a first offence for sentencing purposes under Road Traffic Act 1961 if defendant not sentenced before commission of further offences - whether sentence manifestly excessive - whether sentence should have been suspended - sentence of 4 months not manifestly excessive and no error found in magistrate's decision not to suspend the sentence - whether court should have refrained from imposing fines by reason of Criminal Law (Sentencing) Act, s 13 - court to consider evidence on this issue - appeal on all other grounds dismissed.
Summary Procedure Act 1921 s 62A; Criminal Law (Sentencing) Act 1988 s 13, s 18A; Road Traffic Act 1961 S 47, s 47B; Justices Act 1921 S 70, referred to.
Ryszawa v Samuels [1969] SASR 158; Neal v The Queen (1982) 149 CLR 305, applied.
Police v Nowak (2000) 76 SASR 551; McNicholl v Tothill (1988) 47 SASR 134; The Queen v Roberts-Smith; Ex parte Kowald (1977) 16 SASR 147; Gray v Jones [1948] SASR 201, discussed.

WILLIAMS v POLICE
[2005] SASC 486
Magistrates Appeal

DUGGAN J. The appellant has appealed against the sentences imposed upon him in the Port Augusta Magistrates Court for a series of admitted traffic offences.
The appellant is a 29 year old Aboriginal man who resides at Yalata, approximately 200 kilometres from Ceduna. He was sentenced on 21 July 2005 for the following offences:
(1)On 8 June 2001, the appellant was seen driving in an erratic manner on a road north-west of Yalata. He pleaded guilty to driving whilst under the influence of intoxicating liquor, driving without due care and driving without a licence.
(2)On 19 October 2001, the appellant was apprehended by police driving a motor vehicle at Port Augusta. He was subsequently charged with driving with a faulty headlight, driving without a licence and driving with the prescribed concentration of alcohol. His blood alcohol level was 0.142 grams per 100 millilitres of blood.
(3)On 19 March 2003, the appellant drove a motor vehicle near Ceduna while there was present in his blood 0.094 grams per 100 millilitres of blood. He was charged with driving with the prescribed concentration of alcohol and driving without a licence.
(4)On 2 July 2003, the appellant was apprehended while driving on the wharf at Thevenard. A blood alcohol test established that he was driving with 0.278 grams of alcohol per 100 millilitres of blood. He was charged with driving whilst under the influence of intoxicating liquor, driving without a licence and driving with a defective headlight.
(5)On 30 September 2004 at Ceduna, the appellant drove a motor vehicle while there was present in his blood 0.197 grams of alcohol per 100 millilitres of blood. He was also driving an unregistered and uninsured motor vehicle. He was not licensed to drive.
(6)On 14 December 2004 at Ceduna, the appellant drove a motor vehicle without a licence.
(7)On 15 December 2004 at Ceduna, the appellant drove a motor vehicle whilst under the influence of intoxicating liquor. He was also charged with driving without a licence. His blood alcohol level was 0.262 grams per 100 millilitres of blood.
(8)On 26 December 2004 at Ceduna, the appellant drove a motor vehicle while under the influence of intoxicating liquor. A breathalyser test gave a reading of 0.217 grams of alcohol per 100 millilitres of blood. Again, the appellant was driving while unlicensed.
(9)On 10 February 2005 near Ceduna, the appellant drove an unregistered and an uninsured motor vehicle. The vehicle was being driven contrary to the terms of a defect notice. The appellant also gave a false name to the police.
The appellant was arrested for the offences referred to in (1) and bailed to appear at Yalata Court on 9 July 2001. He failed to appear and the complaint was heard ex parte, presumably, pursuant to s 62A of the Summary Procedure Act 1921. The appellant was convicted and the matter adjourned for sentence.
When passing sentence on 21 July 2005 the magistrate referred to the history of the appellant’s non-attendance in relation to these matters. He said:
Following your arrest for the offences of 8^th June 2001 you were bailed to appear at Yalata court on 9^th July. You failed to appear and ex parte leave was granted to the prosecutor. You were convicted of each offence and an order was made to issue you with a Form 15. That notice, which offered you the opportunity to attend court on 13^th August and provide submissions with respect to any period of licence disqualification was posted to the address that you gave when bailed by police.
You failed to appear on 13^th August and a warrant was ordered for your arrest. No further action was taken on this file until 21^st February 2005.
For the offences of 20^th October 2001 you were bailed to appear on the 26^th November at Port Augusta. You failed to appear and the matter was remanded until 14^th January 2002 at Yalata with a warrant to lie. You failed to appear at Yalata and a warrant was then issued.
For the offending of 19^th March 2003 you were reported and a summons and complaint was sent to you for appearance on 13^th May 2003 at Ceduna. The summons was not served and an order was made for a fresh summons to issue. You proved difficult to locate and on 4^th June, 12^th August and 13^th October the same orders were again made. On 8^th December after it had proven difficult to serve you an order was made for the complaint to lie in view of the warrant issued for the offences of 2^nd July.
For the offence of 2^nd July a complaint and summons was also issued and a warrant was ordered when you failed to appear on the 8^th December. A similar course of events seems to have surrounded all of your remaining files.
On the 21^st February 2005 you were due to appear in court in answer to a complaint and summons issued with regard to the offences of 15^th December. This complaint was served upon you personally on the 12^th February at Ceduna. You failed to appear and all of your outstanding files were brought forward. Mr Chin from ALRM appeared for you and requested that all files be adjourned back to Ceduna on the 23^rd February.
On the 23^rd February you failed to appear and the court ordered a warrant be issued for your arrest. This order was made on the file alleging various offences of 19^th October 2001. I am not certain as to why this happened as my reading of the files suggests that there was still a warrant active on that file as a result of your non-appearance on 14^th January 2002.
You were arrested on 29^th June 2005 and bailed by the Court until 18^th July at Yalata. That order was made in relation to all files.
How the appellant was able to continue committing these offences despite the existence of warrants for his arrest for non-attendance and the fact that he regularly came under the notice of the police remains a mystery.
The magistrate imposed the following penalties for the offences referred to in the numbered paragraphs:
(1)Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) a fine of $900 and disqualification from driving for a period of 12 months to commence forthwith.
(2)Pursuant to s 18A of the Sentencing Act, a fine of $1700 and disqualification from driving for three years to commence on 19 July 2006.
(3)Pursuant to s 18A of the Sentencing Act a fine of $900 and disqualification from driving for 12 months commencing on 19 July 2009.
(4)On the charge of driving under the influence of intoxicating liquor, imprisonment for one month and disqualification from driving for a period of three years from 19 July 2012.
(5)See [7] below.
(6)See [7] below.
(7)Pursuant to s 18A of the Sentencing Act, imprisonment for two months to be served cumulatively upon the sentence of imprisonment for one month referred to in (4). Disqualified from driving for a period of three years to commence on 19 July 2012.
(8)Pursuant to s 18A of the Sentencing Act, imprisonment for one month cumulative upon the sentence of imprisonment for one month referred to in (7). Disqualification from driving for three years from 19 July 2012.
(9)See [7] below.
Finally, the magistrate dealt with the offences referred to in (4) except the driving under the influence matter which he had already dealt with, the offences referred to in (5), the offence referred to in (6) and all the offences referred to in (9). In respect of all these offences the magistrate said:
I will require the defendant to enter into a bond to be of good behaviour for a period of 22 months in the sum of $100.00 It will be a condition of that bond that he carry out 200 hours of community service work within the period of 18 months from the date of his release from prison. It will also be a condition of the bond that he is to be under the supervision of the Department of Correctional Services and is to obey all directions as to his participation in any drug and alcohol programs that he may be directed to attend.
In addition, I impose a further period of licence disqualification for a further three years which disqualification will also take effect from the 19^th December 2012.
In summary, therefore, the appellant was sentenced to imprisonment for four months and required to pay fines totalling $3500.00. He was also required to enter into a bond to be of good behaviour for 22 months and ordered to perform 200 hours of community service work within 18 months from the date of his release from prison. He was disqualified from holding or obtaining a driving licence until 19 December 2015.
One of the grounds of appeal complains that the magistrate erred in treating offences of driving under the influence and driving whilst having the prescribed concentration of alcohol in the blood committed after 9 July 2001 as subsequent offences for the purposes of sentencing under ss 47 and 47B of the Road Traffic Act 1961. This could only be the case if the proceedings on 9 July 2001 resulted in a first offence driving under the influence so as to provide the basis for later offences to be regarded as second, third or subsequent offences.
Section 47(4) provides as follows:
In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous offence against subsection (1) or section 47B(1), 47E(3) or 47I(14) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed.
There is a similar provision in s 47B(4), although that section refers to second, third or subsequent offences so as to accord with the terminology used in the earlier part of s 47B.
In Police v Nowak (2000) 76 SASR 551 it was noted that there is no definition of first offence, second offence or subsequent offence in the legislation. However, the court followed the decision in Ryszawa v Samuels [1969] SASR 158 and held that a second or subsequent offence means an offence committed after conviction of a first offence.
According to the argument advanced by the appellant, the proceedings which took place on 9 July 2001 did not result in a conviction. Reliance was placed on McNicholl v Tothill (1988) 47 SASR 134. In that case the defendant pleaded guilty to a charge laid under s 47 of the Road Traffic Act. It was noted on the court file that the defendant had been “convicted”. He was then referred to a driver’s assessment clinic prior to the imposition of penalty. Approximately one week later, his counsel applied to set aside the conviction and enter a plea of not guilty. The issue was whether the direction that a conviction had been recorded resulted in the court being “functus officio” except as to penalty.
Existing Full Court authority was to the effect that, once a conviction has been recorded in a court of summary jurisdiction, the court is functus officio except as to penalty and there is no power to set aside the conviction: The Queen v Roberts-Smith; Ex parte Kowald (1977) 16 SASR 147; Gray v Jones [1948] SASR 201. In the latter case Napier CJ said at 204:
But a court of summary jurisdiction is not a court of record. Its judgment is complete as soon as it is pronounced, R v Manchester Justices; Ex parte Lever (1937) 30 Cox CC 603. The cases show that that must not be taken too literally (Jones v Williams (1877) 36 LT 559; Bagg v Colquhoun [1904] 1 KB 554; R v Marsham; Ex parte Pethick Lawrence [1912] 2 KB 362), but in this case, where the minute under s 70 of the Justices Act had been made, and the court had dispersed, the judgment was clearly completed.
In these circumstances, there was no power to reopen the hearing.
Section 70 of the Justices Act 1921 was as follows:
70. When the court convicts or makes an order against the defendant a minute or memorandum of the conviction or order shall then be made.
In McNicoll v Tothill King CJ expressed the view that there was no reason in principle why a court of summary jurisdiction should not enjoy the discretion which the courts exercise in the criminal jurisdiction to permit the withdrawal of a plea of guilty prior to sentence.
Legoe J decided the case on the meaning of “conviction” in s 70. He held that it meant “the final consequential judgment reached after the court has fixed and formally announced the sentence or penalty to be passed on the person so found guilty”. His Honour went on to hold that there was no provision in the Justices Act which prohibited the Magistrates Court from exercising a discretion to permit a change of plea at any time up to the passing sentence.
Matheson J held that the Justices Act did not oust the jurisdiction to entertain an change of plea in the circumstances of the case. Prior J held that the judgment of the Magistrates Court is not complete until completion in the sense of a determination of guilt and disposition of the matter occurs. It followed that the magistrate was not functus officio by reason of the plea of guilty or the recording of the conviction.
Von Doussa J agreed with the reasons of Matheson J.
In my view, the case is of little or no assistance in determining the issue in the present case. The predominant view of the members of the court was that the magistrate was not functus officio because sentence was yet to be passed and there was no provision in the Act which prevented the court from permitting a change of plea at this stage. It is true that Legoe J placed reliance on construing the meaning of the word “conviction” in s 70 broadly, but that was because of the relevance which the court gave to s 70 in R v Roberts-Smith Ex parte Kowald.
In the present case, the appellant did not appear to answer his bail on 9 July 2001. Pursuant to s 62A of the Summary Procedure Act 1921, the court exercised its discretion to proceed ex parte and adjudicate on the matter “as fully and effectually, to all intents and purposes as if the defendant had appeared at that time and place”. The conviction was then recorded. In my view, the effect of the proceedings up to this point was that the commission of the offence had been established and a conviction recorded on the court file. This resulted in the offence of driving under the influence being a first offence for the purposes of ss47 and 47B of the Road Traffic Act and provided the basis for the increased maximum penalties in the Act.
The legislation imposes higher maximum penalties for subsequent offences, but an offence cannot constitute a first offence until guilt has been established. In this case, the ex parte hearing resulted in a formal finding of guilt and the recording of a conviction. There is no reason why sentence should occur before the offence can be used for the purposes of ss47 and 47B.
Next, it was argued that the sentence was manifestly excessive. It was also submitted that, if a sentence of imprisonment was appropriate, it should have been suspended.
The appellant has no relevant previous convictions. He grew up at Koonibba and Ceduna and has had almost no formal education. It was submitted to the magistrate that the appellant had limited command of English.
Counsel for the appellant attributed considerable significance to the submission that an important factor in the appellant’s offending was the death of his mother in November 2004. It was pointed out that the appellant and his mother were very close. His mother died in November 2004 and she had been ill when the September offences took place. It was said that the appellant was still grieving at the time of the serious offending in December 2004 and that cultural considerations led to an extended period of grieving.
Whilst acknowledging the effect of his mother’s death on the appellant, the spate of offending took place over a period from 8 June 2001 to 10 February 2005. The only apparent relevance in this submission is that some of the more serious offences took place in December 2004 and that his mother’s death may have led to excessive drinking.
Mr Coates, for the appellant, stressed the importance of the appellant’s cultural background. The appellant’s situation illustrates a serious and wider problem which exists in the Yalata community. It is a problem which is well documented in a series of studies tendered by Mr Coates.
In his paper “Involvement of South Australian Aboriginal People in Road Traffic Crashes”[1] pointed out that there is a significant over representation of Aboriginal casualties in traffic accidents in the Eyre Region. The Aboriginal casualties accounted for 13.7 per cent of overall casualties. Particular problems arise from the fact that the Yalata community is isolated and the risk of death and injury as a result of drink driving offences is acute.
[1] Tiong, F., (1996) Involvement of South Australian Aboriginal People in Road Traffic Crashes, South Australian Department of Road Transport
The appellant’s background and the circumstances which exist in the community in which he lives are relevant matters to be taken into account in sentencing him for the present offences. The following remarks of Brennan J in Neal v The Queen (1982) 149 CLR 305 at 326 are particularly relevant in this respect:
The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentence courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.

The dilemma which the magistrate faced was to balance these considerations with the seriousness of the offending and the period over which it extended. The appellant has never been licensed to drive a motor vehicle and this, coupled with his heavy drinking, placed other road users in considerable danger. Proper consideration had to be given to deterrence in the light of sustained flouting of the law. The fact that the appellant had no relevant previous convictions must be considered against his failure to attend court in relation to each matter as it arose.
The first offence for which a term of imprisonment was imposed was in relation to the charge of driving under the influence of intoxicating liquor on 2 July 2003. The percentage level of alcohol in the appellant’s blood was 0.278. By this time, the appellant had committed three drink driving offences and had not attended court in relation to any of them.
The sentence of imprisonment for two months was imposed for the offence of driving under the influence of liquor committed on 15 December 2004. In the meantime, the appellant had driven on 30 September 2004 at a time when his blood alcohol level was 0.197 per cent. His level on 15 December was 0.262 per cent. Eleven days later, the appellant drove with a blood alcohol level of 0.217 per cent.
I do not accept that the magistrate failed to take into account the appellant’s background and circumstances. He is a magistrate who has extensive experience in this region and he referred to relevant authorities on the sentencing of Aboriginal persons. However, in the course of his extensive remarks on sentence, he also remarked on the fact that the appellant’s offending was amongst the worst of its type which he had encountered.
Criticism is made of the magistrate’s comment that he did not accept that the appellant was unaware that sentences of imprisonment had been imposed for drink driving offences in the appellant’s community. The magistrate’s comment is speculative, but it was not suggested that the appellant was unaware that he was committing serious breaches of the road traffic law over an extended period.
In my view, the total period of imprisonment was within the bounds of the sentencing discretion and not manifestly excessive. I am also of the view that there was no error in the magistrate’s decision not to suspend the sentence.
However, there is one anomaly in the penalties imposed. The magistrate said that he imposed a bond with community service in respect of a number of the offences because he considered that the appellant would be unable to pay the fines which would otherwise be appropriate. However, he did impose fines totalling $3500 in respect of other offences. The question arises whether the court should have refrained from imposing fines by reason of s 13 of the Criminal Law (Sentencing) Act 1988 which provides that the court must not make an order requiring a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that the defendant would be unable to comply with the order. In considering this issue, the court is required to take into account the fact that defendant may enter into arrangements for an extension of time to pay fines or for payment by instalment. The section directs the court to consider any evidence on this issue. In the circumstances, I will provide an opportunity for submissions and, if necessary, evidence to be given on this issue.
The appeal on all other grounds will be dismissed.