HAMNETT v POLICE No. SCGRG-00-271 [2000] SASC 126

He appeals against the sentences on the grounds that they are manifestly excessive and that the learned Magistrate erred in failing to suspend them.

The offence of driving whilst disqualified was committed on 12th January 1999. On 21st October 1996 he was disqualified from holding or obtaining a licence to drive a motor vehicle until further order, having been convicted of a drink driving offence and the offence of driving without a licence. At about 9.30 am on 12th January 1999 the appellant drove a motor vehicle on Main South Road at O'Halloran Hill when he lost control and the vehicle rolled over. He was charged with that offence on complaint but not until 1st July 1999.

The appellant's version of the circumstances of the offence was that he had earlier been at home with his de facto wife of some eight and a half years. There had been a serious argument between them. He walked away to cool off and upon his return the argument continued. He was distressed and not thinking clearly. He saw her keys on a table, took them and drove away in her motor vehicle. He was also angry and upset and intended to drive to the home of a close friend to talk about his problems. He says that he did not turn his mind to the disqualification. Whilst driving an elderly woman driving a motor vehicle cut in front of the vehicle he was driving causing him to brake. He acknowledges that his mental state at the time is a reason for the accident. The car slid and rolled over. He says he had not consumed alcohol on this day. He does not dispute any of the circumstances of the other offences.

The offence of disorderly behaviour was committed at about 6.00 pm on 26th December 1999. The appellant was yelling loudly outside a chemist shop at a shopping centre at Morphett Vale and was banging on the window. He then went into a drive-through bottle shop next door. He was upset and he swore in the presence of the attendant and a customer. This shop had shut and the appellant was told that it had closed a few minutes earlier. He then told the assistant that he had better serve him or he would "bash the shit out of [him] and take every bottle in the shop". He purchased a bottle of whisky and asked for a free soft drink, which was refused. He told the assistant outside the store that he would smash the bottle of whisky over his head. His conduct had also been observed by a man who was sitting in a vehicle with three small children.

The appellant then went to the drive-through area of a bottle shop at a tavern at Morphett Vale at about 7.00 pm. He asked the driver of a motor vehicle if he could borrow $2.00 for Christmas and he said that he wanted to buy a soft drink. When that person refused, the appellant said he was a "fucking idiot". He then approached the shop assistant and asked for a free can of soft drink, which was refused. He then yelled that the assistant was a "fucking idiot wanker" and other abusive words. Again he asked the driver of the vehicle for money and was again refused. He yelled abusively and coarsely to those present and left.

Police officers on mobile patrol saw the appellant a short time later on the side of a road yelling at passing motor vehicles and drinking from the bottle of whisky. They approached him and he was aggressive. He calmed down and then became angry. The police observed that he was under the influence of alcohol. He was warned that if he yelled at motor vehicles again or otherwise behaved in a disorderly fashion, he would be arrested. He was calm at this stage and was told to walk home. He refused a lift in the police vehicle. As the police were getting into their vehicle, the appellant kicked a large piece of a tree branch on to the road and again yelled at passing motor vehicles. He walked across the road without looking and held up his hand as an indication to traffic to stop. Vehicles had to brake heavily to avoid hitting him. He abused one of the drivers. He was then arrested. He became aggressive and was handcuffed.

The other three offences occurred on 28th January 2000 at about 8.35 pm. Police saw the appellant in the street. He was staggering and carrying a can of beer. He was not wearing a shirt and the fly on his jeans was undone. He was approached by the police and he swore at them. He was cautioned and told to go home. They drove around the block and saw the appellant standing on the footpath urinating against a fence. There were two girls nearby and the appellant spoke offensively to them. He used offensive language and he was arrested for urinating in a public place and offensive language. He became aggressive and resisted arrest. He was forcibly restrained, handcuffed and taken to the Christies Beach Police Station where he was placed in a padded cell. The appellant was abusive and threatened the police officers. He had to be restrained from spitting at the police. At the police station he continued to use offensive and threatening language.

The appellant is aged 26 years. He has a long record of prior offending, commencing in 1993 when he was aged 19 years. He has many convictions for disorderly behaviour, damaging property, larceny, being unlawfully on premises, possessing a prohibited substance, offensive language, drink driving, common assault, breach of community service orders, assault and urinating in a public place. It is no easy task to discern from the manner in which the record of prior offending of the appellant has been compiled to discover with accuracy the detail of that record. Doing the best I can, it appears that he was imprisoned in 1995 for two months, having been convicted for assault, offensive language and urinating in a public place, which sentence was suspended In the same year he was sentenced to imprisonment for 10 days for breach of an order that he undertake community service. I do not know if that sentence was suspended. Also in that year he was sentenced to imprisonment for eight months having been convicted of larceny and common assault which sentence was suspended. In 1996 he was sentenced to imprisonment for one month having failed to comply with a bail agreement. The record does not disclose if that sentence was suspended. In 1996 he was imprisoned with a total head sentence of 24 months with a non-parole period of 15 months upon having been convicted of assault occasioning actual bodily harm, disorderly behaviour and offensive language, and upon the enforcement of numerous breached bonds. This sentence and non-parole period were reduced to 20 months and 12 months respectively on appeal in 1997.

On 17th March 1999 he was convicted of another drink driving offence and of driving whilst disqualified from holding or obtaining a licence. Those offences were committed on 25th August 1998 before the driving whilst disqualified offence, which is the subject of this appeal, but he was not convicted of that offence until after he had committed the subject offence. On the charge of driving whilst disqualified, he was sentenced to imprisonment for 7 days, which sentence was suspended.

The learned Magistrate heard submissions from a solicitor acting for the appellant on 1st March 2000. The substance of those submissions as to the offences are as have been mentioned. As to the personal circumstances of the appellant, the learned Magistrate was informed that the appellant's relationship with his de facto is excellent, although there are problems and arguments due to financial difficulties, their children and his abuse of alcohol. They have two children who, at the time of the submissions, were aged 6 years and 5 years and the birth of their third child was imminent. The appellant had employment which he would lose if he went to prison and he would not be present at the birth of the child and be able to assist his wife upon her return from hospital. The learned Magistrate ordered a pre-sentence report and remanded the appellant in custody until 10th March 2000 when he passed sentence.

That report was provided and the learned Magistrate also had before him a report from Dr Raeside, a forensic psychiatrist, which had been provided to the Magistrates Court in 1995 when the appellant was before the Court in that year, and also a report of Dr Champion, a psychiatrist, who saw the appellant on 15th February 2000 and gave the report to the learned Magistrate for the purposes of sentencing for the present offences. Both doctors reported that the appellant had no significant psychiatric or medical history but that he had a long history of heavy alcohol abuse with significant impairment in his function due to his disorderly behaviour whilst drunk. He required drug and alcohol detoxification programmes. They both expressed the opinion that imprisonment would be counter-productive to attempts to address the appellant's alcohol problem. When intoxicated by alcohol, he was verbally abusive, violent and generally disagreeable. Dr Champion described the appellant as a regular binge drinker with only brief periods of abstinence, a month or so, except in 1999 when he had employment. The consequences of his drinking have been severe, including suicide ideation, occasions of harming himself by cutting his wrists, putting his arm through a pane of glass and attempting to jump from a bridge. Most of his prior offences were committed whilst he was intoxicated by alcohol. He becomes aggressive and abusive. He is a regular consumer of cannabis and had taken amphetamines but not in recent years. Problems in his relationship with his wife are due to his excessive drinking and behaviour when intoxicated. Dr Champion expressed the view that imprisonment would have destructive consequences in that the appellant would lose his job and it was this employment which had helped him to remain abstinent. He expressed the opinion that the appellant was strongly motivated to abstain again and that should the appellant not be sent to prison, it should be a condition of his sentence that he abstain from alcohol and that it may be of value if he is obliged to submit to random breath or blood tests for liver function which can be an indicator of binge drinking.

The two psychiatrists and the corrections officer who prepared the pre-sentence report described features of the background of the appellant. His parents separated at about the time of his birth. His early childhood was traumatic and disruptive due to his mother's excessive drinking. He spent much time with his maternal grandparents who also consumed alcohol on a daily basis. He has only limited contact with his family. He attained year 10 level at secondary school. His academic performance was average and he left school at the age of 16 years. He was suspended from school on one occasion for receiving stolen goods.

He had employment upon leaving school for two and a half years but was retrenched due to the faltering of his employer's business. He has since had a series of casual jobs and also undertook a training programme with Offenders Aid and Rehabilitation Services in areas of landscaping and paving. In April 1999 he obtained work as a production line worker and held that position until he was remanded in custody by the learned Magistrate. The appellant abstained from binge drinking and managed his alcoholism effectively until his offences on 26th December 1999. It is suggested that his employment created some stability in his life. The relationship with his de facto is good and stable except when he drinks excessively. The appellant also has difficulty in managing his anger when intoxicated and suffers from low self esteem and lacks self confidence when unemployed. He attended, on a regular basis, an anger management course in 1996 conducted by the Noarlunga Community Correctional Centre and participated in an acceptable manner.

The appellant has an interest in sport which includes playing cricket and football and surfing. If able to do so, he intends to play football during the current season.

The learned Magistrate had regard to those reports and to the matters personal to the appellant. However, he took a serious view of the offence of driving whilst disqualified. He said, in his remarks on sentencing, that he regarded this offence as a serious matter because it was after the appellant had committed a similar offence on 25th August 1998 but before he was convicted of that offence on 17th March 1999. He said that it was also a matter of aggravation that whilst committing the offence, he lost control of the vehicle and it rolled over in a suburban area. He said:

"There is absolutely no doubt that you have a substantial alcohol problem. You also admit to an anger management problem. Your counsel suggested that I remand your matters until later in the year to allow you the opportunity to undergo alcohol counselling. That is known as a Griffith's remand. I am not prepared to do that. To this day you have done absolutely nothing to seek out some counselling yourself. That suggests to me that you are not yet serious about overcoming your problem. That aside, it seems that despite your matters being before the court, you are still prepared to use illicit drugs. It seems to me that there is no real alternative but to return you to prison. I note Dr Champion's comments about how prison is likely to affect you, but you have exhausted any rights which you might have for leniency. I appreciate you will most probably lose your employment, but that is often a consequence of imprisonment."

After imposing the various sentences, the learned Magistrate said:

"Mr Hamnett, until such time as you seek out some treatment for your alcohol and drug problems, the probability is you are going to continue to offend. You have reached the stage in your criminal behaviour where any court is simply going to send you back to prison. Do yourself a favour and get some treatment, otherwise you are not going to do anybody any good at all."

The learned Magistrate sentenced the appellant to imprisonment for 2 months on the charge of driving whilst disqualified to commence on 1st March 2000. On the charge of behaving in a disorderly manner on 26th December 1999, he sentenced the appellant to imprisonment for 14 days. With respect to the three offences committed on 28th January 2000, he sentenced the appellant to imprisonment for one month and ordered that all of the sentences be served cumulatively. As the appellant had not previously been convicted of driving whilst disqualified, he had to be regarded as a first offender with regard to that offence and so the maximum sentence was imprisonment for six months: s91(5), Motor Vehicles Act 1959. The maximum penalty for disorderly conduct is a fine of $1,000 or imprisonment for three months: s7(1) of the Summary Offences Act 1953. The maximum penalty for urinating in a public place is a fine of $200: s24 of the Summary Offences Act. The maximum penalty for using offensive language is the same as for disorderly behaviour: s7(1) of the Summary Offences Act. The maximum penalty for resisting police is a fine of $2,000 or imprisonment for six months: s6(2) of the Summary Offences Act.

Strictly speaking, the learned Magistrate did make an error with respect to the prior record of the appellant. He said that the appellant had been imprisoned for various offences in 1995, 1996, 1997 and 1999. As has been seen, he was sentenced to imprisonment for offences in 1995 and 1999 but those sentences were suspended. He was not sentenced to imprisonment in 1997. As has been mentioned, he was sentenced to imprisonment for breach of a community service order in 1995 not for an offence. I think this error of the learned Magistrate in his understanding of the past record of the appellant is significant. He regarded the appellant as a recidivist each year in the four years before imposing the sentences, but in fact he may only have served the short sentence in 1995 and the sentence in 1996 which have been mentioned.

There is another error of some, but minor, significance. The learned Magistrate, apparently acting pursuant to s18A of the Criminal Law (Sentencing) Act 1988, imposed the one sentence of imprisonment for 1 month with respect to the offences committed on 28th January 2000 even though one of them did not carry a penalty of imprisonment. Either no penalty was imposed on the charge of urinating in a public place, or that offence was taken into account in fixing the sentence of imprisonment which is tantamount to imposing a sentence of imprisonment when only a fine was permitted: see Hermel v Police [2000] SASC 34 per Duggan J. It is not appropriate to include an offence for which there cannot be a sentence of imprisonment. However, I do not think that error in itself justifies intervention on appeal to reduce the sentence imposed. Given the past record of the appellant, one sentence of imprisonment for 1 month is justified with respect to the other two offences of offensive language and resisting the police officers in the execution of their duty. However, the error does require intervention for the limited purpose of excluding the offence of urinating in a public place from the composite sentence.

The real basis of the appeal is that the sentence of 2 months for driving disqualified is manifestly excessive and the learned Magistrate erred in not suspending the total sentence.

Mr McGee, who appeared for the appellant, submitted that as the offence of driving disqualified was, in effect, a first offence, a sentence of imprisonment was not appropriate because the offending was not contumacious: see Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150 at pp171 and 179. I accept that the offending was not contumacious and therefore excluding all other matters adverse to the appellant, imprisonment need not be imposed. It was not contumacious because it was committed without the required attitude of disregard and disobedience. However, the appellant had to be sentenced having regard to his extensive record of prior offending, including for many driving offences. That is a matter which justifies a severe penalty even though the offending was not contumacious. Also, it was a matter of aggravation that the appellant had earlier committed the same offence but had not been punished when he committed the subject offence. These two matters justified a sentence of imprisonment even though the appellant had to be regarded as a first offender. However, I think the sentence of imprisonment for 2 months was manifestly excessive in the circumstances. The offence was committed on the spur of the moment and in consequence of an agitated state following an argument. Making due allowance for these matters and having regard to his past record, a sentence of 14 days would have been appropriate.

There is no basis to impugn the other sentences except, as I have mentioned, that the learned Magistrate should have excluded the offence of urinating in a public place from the third sentence. It would have been appropriate on that charge to have convicted the appellant without penalty, or impose some separate penalty. As each of these offences were committed during the one course of drunken conduct, I think the former approach is appropriate. I do not think the misunderstanding of the learned Magistrate as to the number of times the appellant had served terms of imprisonment justifies further interference with these other sentences. Even if his past record was correctly understood, the gravity of his offending justified sentences of imprisonment.

It remains to consider whether the learned Magistrate erred in not suspending the sentence. Despite the past record of the appellant, there was good reason to suspend the sentence. The appellant is a relatively young man. He has a stable, if at times volatile, relationship with the mother of his three children. The third child was born soon after sentencing. Whilst the appellant has breached some bonds in the past, he has carried out the terms of bonds which related to suspended sentences. Even though he has not conquered his alcoholism and is unable to control his anger, he had previously sought assistance. His prior offending is a consequence of his alcoholism. He does not have a psychiatric condition or an anti-social personality which, in themselves, could impede rehabilitation by factors outside his control. During most of 1999 and at the time of sentencing, he was in full-time employment. His alcoholism was mainly in control over that substantial period. It is not easy to control that condition but the appellant appears to have shown sufficient strength of character to do so during that time. Obviously he lapsed again on the 26th December 1999 and 28th January 2000 and his conduct on those occasions is a pathetic reflection of his problem with alcohol. Despite these episodes, he kept his job and the support of his de facto wife.

The psychiatric evidence established that prison would compromise the appellant's chances of resolving his problem. The appellant expressed the wish to continue his employment and his family life and his resolve to beat the problem. The appellant had not for some years undertaken stable employment for such a substantial period.

Also, the presence of the appellant in his home after the arrival of the new baby and the assistance which he could give his de facto wife were clearly matters to consider. The impact of a sentence upon dependants is a matter to which the Court should have regard.

Considering the combined effect of these matters, they establish that, despite the subject offences, and his past record, if it had been correctly understood by the learned Magistrate, the appellant did have prospects of rehabilitation and was making progress.

Ms Sutcliffe, who appeared for the respondent, submitted that the earlier offence of driving disqualified, although not a previous conviction, demonstrated the need for personal deterrence. I think there is force in that submission but personal deterrence may be reflected in the sentence of imprisonment, even if suspended. As to the other offences, she submitted that, given the past record of the appellant, imprisonment was the appropriate sentencing strategy. She contended that the appellant had not sought help for his alcoholism recently and that the learned Magistrate was entitled to consider that matter in the context of rehabilitation. I accept that these matters must be given due weight.

I think the matter is finely balanced and I have been uncertain as to whether this Court should interfere with the discretion not to suspend the sentence. However, I have concluded that the learned Magistrate did not have due regard to the progress which the appellant had made since he commenced work and that he did not give adequate consideration to the prospects of rehabilitation. Whilst too much must not be made of his remark that the appellant "had exhausted any rights which [he] might have for leniency", I think it is fair to say that it indicates that the learned Magistrate gave little weight to rehabilitation. As has been said on many occasions, successful rehabilitation of an offender is in the community interest. Despite his long record, I think the material before the learned Magistrate justified a sentencing approach which would afford the appellant another chance, perhaps his last chance, to avoid serving another sentence of imprisonment. Occasionally, it is beneficial to adopt a new sentencing strategy for a repeat offender in an appropriate case and that is to focus on rehabilitation. I think this is such a case.

There is one remaining matter. The appellant was in custody for about 10 days pending sentence and the learned Magistrate should have had regard to that matter when considering whether to suspend the sentences. It appears that he did not do so.

Having reached that conclusion, the discretion to suspend the sentence must be considered afresh.

In addition to the matters which have been mentioned, the present circumstances of the appellant support the suspension of the sentence. It will not be known whether the appellant will regain his employment until these proceedings are completed. The uncertainty of his immediate future has been an obstacle to re-employment. The possibility of re-employment must count in his favour to some extent. What is of more immediate significance is the role he is playing in the care of his children. Because he is unemployed, his de facto wife has taken employment at a nursing home undertaking both day and night shifts. The appellant is the principal carer of the children when she is at work.

In my view, it is appropriate to suspend the sentences.

I allow the appeal. I quash the sentence on the charge of driving disqualified and impose a sentence of imprisonment for 14 days. I confirm the sentence of 14 days imposed with respect to the offence of disorderly behaviour committed on 26th December 1999. In order to correct the error made by the learned Magistrate in imposing one sentence of imprisonment of 1 month with respect to the three offences committed on 28th January 2000 and so that credit may be given to the appellant for the time he was in custody on remand, I quash that sentence. On the charge of urinating in a public place, the appellant is convicted without penalty. On the other two charges of using offensive language and resisting police, I impose one sentence pursuant to s18A of the Criminal Law (Sentencing) Act. The appropriate sentence is imprisonment for 1 month, which I reduce to 20 days, to give the necessary credit to the appellant.

Each of the sentences is to be served cumulatively. The total head sentence is 48 days. I suspended the sentences upon the appellant entering into a bond in the sum of $100 to be of good behaviour for a period of 12 months with the conditions that he be under the supervision of a probation officer and that he obey all directions of the probation officer as to employment, place of residence and treatment and counselling for alcoholism and management of anger. I do not impose a condition of abstinence from alcohol or that the appellant undergo periodic testing as suggested by Dr Champion. The alcoholism of the appellant is severe and a relapse without criminal conduct should not cause revocation of the suspension. However, it is to be expected that the appellant will be directed by the probation officer to undertake extensive treatment and counselling.