To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations. ...

The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so." He then referred to the passage which I have cited in Webb v O'Sullivan (supra). These principles find expression in the Criminal Law (Sentencing) Actss10 and 11.

Of course the Courts have seen the need to fix sentencing standards and with respect to crimes where it is apprehended that emphasis should be given to general deterrence and prevention. Examples are persistent social security fraud, drug trafficking, sexual offences against children, housebreaking and armed robbery. These standards are appropriate and in the community interest. Sometimes they are expressed in strong terms, eg The Queen v Spiero (1979) 22 SASR 543 when Cox J, at first instance, in relation to the crime of armed robbery, said:

"It appears to be an area in which the deterrent aspect must predominate in sentencing, even at the expense of considerations personal to the offender. Those who are tempted to commit armed robberies in this State would be wise if they were to bear this in mind."

This observation was endorsed on appeal. However, such standards cannot take the place of the discretion which rests with the Judge or Magistrate entrusted with imposing the sentence. Sentencing is a complex task which requires the balancing of the competing aims and interests in order to reach a just result which promotes protection of the public. General deterrence cannot subsume all other considerations: see Giles v Barnes [1967] SASR 174. In that case the Full Court had to consider the significance in the sentencing process of the prevalence of the offence, in this case larceny, in circumstances known as shoplifting. Bray CJ said at p181:

"There is no doubt that the prevalence of a particular offence in a particular locality may justify Courts in raising the normal standard of penalty for such an offence in that locality. See Halsbury, 3rd ed. Vol. 10, p.488, para. 890; R v Withers 25 CAR 53. This, however, is only one of the factors to be considered in imposing punishment on a particular offender for a particular offence, and can seldom, if ever, be the dominant one. The circumstances peculiar to the particular offender and the particular offence must always be taken into account, as well as the general nature of the crime. Anything in the nature of a rule of thumb is to be deprecated and must be avoided. Webb v O'Sullivan [1952] SASR 65; Coombe v Whitbread [1959] SASR 104."

The true role of the Court in setting standards is to ensure both uniformity of sentencing, so far as that is possible and appropriate, and public confidence in the administration of justice as is evidenced by the principles applied to prosecution appeals against sentence: Griffiths v The Queen (1977) CLR 293 at p310; Everett v The Queen (1994) 181 CLR 293 at pp299-300 and p306 and The Queen v Osenkowski (1982) 30 SASR 212 at p213. In doing so the Court provides guidance to those entrusted with exercising the sentencing discretion. In my view the position was correctly stated by the Full Court comprised of Hogarth, Jacobs and Mohr JJ in McDougall v Betts (1979) 21 SASR 424. After reviewing cases dealing with the appropriate penalty for the offence of driving a motor vehicle whilst under the influence of intoxicating alcohol or a drug, they went on to say at p425:

"We desire to state at the outset that these cases, and others cited in argument, do not lay down, and were not intended to lay down, hard and fast rules to be treated as binding on lower Courts in every case. While they attempt to give some guidance to courts of summary jurisdiction - guidance which should not, of course, be flagrantly disregarded - it seems necessary to say again that no two cases are alike, and the combination of facts and circumstances relevant to the determination of an appropriate sentence are infinitely various. While the general policy and intent of the relevant legislation is no doubt a relevant factor, Parliament has nevertheless entrusted to the Courts a discretion which, except for the control imposed by legislative prescription, eg with respect to minimum or maximum penalties or mandatory forms of punishment, is not to be fettered by a priori rules. Whilst consistency in courts of summary jurisdiction is, of course, a desirable objective, it is not an end in itself, the pursuit of which might obscure differences, sometimes minor but sometimes quite significant when taken with other surrounding circumstances, which distinguish one case from another."

Further, I respectfully agree with the observations of Cox J in R v King (1988) 48 SASR 555 at p557 cited by the Chief Justice. Perhaps to illustrate the principle it is unnecessary to go beyond the observations of King CJ in The Queen v Osenkowski (supra) at pp212-213:

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

In my view it is wrong in principle to fix standards which, for all practical purposes, remove the discretion from the sentencer. As Bray CJ said in Birch v Fitzgerald (1975) 11 SASR 114 at p117, after concluding that young men involved in acts of physical violence may expect to go to prison:

"I am not, of course, saying that all first offenders ought to be sent to gaol. There is a wide range for the proper application of judicial discretion."

What then of the standard fixed by King CJ in Coombe v Douris (supra) and the Full Court in Eldridge v Bates (supra) which was followed in Police v Bastow & Ors (unreported 8th May 1996, Judgment No S5595)? In Eldridge v Bates (supra) all members of the Court adopted this sentencing standard. The relevant passage of the judgment of King CJ, with which the other members of the Court agreed, is set out in the judgment of the Chief Justice. It may be seen that King CJ accepted that the Court has a duty to consider alternatives to imprisonment and the sentencing principle discussed in Yardley v Betts (supra) but that there are special reasons why the deterrent purpose of punishment should generally predominate over other considerations for the offence of driving under disqualification. The sentencing standard laid down for this offence is imprisonment which could only be suspended in exceptional circumstances and would only be rarely justified. The reason for this standard was expressed by King CJ in Coombe v Douris (supra) as follows: "The offence of driving while under disqualification is a most serious offence, as is indicated by the maximum penalty of six months' imprisonment prescribed by the section. Its seriousness consists in the defiance of the law which it manifests and in the fact that it nullifies the effect of the order of disqualification which is imposed for the protection of the public. The effectiveness of orders of disqualification from holding or obtaining a driver's licence depends upon observance of them by the persons disqualified. If they are treated with contempt and ignored by the persons affected, the orders of the court designed to deter offenders and to protect the public are rendered ineffective. The ordinary punishment for driving under disqualification must be imprisonment. This is not to deny that circumstances may exist which would justify suspension of the sentence or some other order such as community service order. In my opinion, however, the circumstances would have to be exceptional to justify a penalty other than an unsuspended sentence of imprisonment. A suspension of a sentence of imprisonment will rarely be justified in view of the primary deterrent purpose of the penalty.

It is of the utmost importance that magistrates should appreciate their duty, painful though it might be on occasions, to impose sentences of imprisonment for this offence in order to maintain the effectiveness of disqualification orders. The judgment which I am about to give in this case should be a warning to all who may be tempted to drive under disqualification that imprisonment will almost certainly following any non-observance of the disqualification."

In Eldridge v Bates (supra), he went on to say, at p534:

"Regrettable as it is that a young person should be sent to prison, the paramount consideration in imposing penalty for the offence in question must be deterrence. If offenders are not deterred effectively from disregarding disqualifications, others are tempted, in many cases pressured, to do likewise. Orders for disqualification may be found to speak in vain with very detrimental consequences for the safety of the public. The paramount necessity of underpinning disqualification orders makes it necessary that nothing be said or done in the courts which would weaken the warning which I gave in Coombe v Douris 'to all who may be tempted to drive under disqualification that imprisonment will almost certainly follow any non-observance of the disqualification'".

This sentencing standard, in a practical sense, is expressed in almost absolute terms. Youth, previous good character, old age, good prospects of rehabilitation, remorse and contrition, loss of employment, hardship to dependants and other compelling, but common matters, to be brought to account in favour of the offender are virtually set at nought. An offender who is a most valuable and otherwise law abiding member of the community who commits the offence on the spur of the moment for no good reason, must go to prison. The effects of imprisonment, including the stigma for life, are also set at nought. Young people who have previously lived within the law may develop contacts, attitudes and skills whilst in prison, even for a short time, which lead them into criminal behaviour upon release. As Wells J observed in R v Kear (supra), there is a danger of creating "permanent enemies of the society which spurned them". Any sentencing standard which has these consequences must be questionable.

With due respect to those who take a different view, there can be no basis in principle to set this offence apart from nearly all others so that the fundamental principle of the punishment having to also fit both the crime and the circumstances of the offender is disregarded. In my view the use of such severe punishment to the exclusion of all other sentencing options in order to establish efficacy of a court order is wrong in principle.

Upon reconsideration of the sentencing standard for this offence, it is appropriate to ask whether there should be any standard fixed by this Court at all or should punishment be left to Magistrates without any guidance. I think there should be a standard fixed for their guidance given the seriousness of the offence and its apparent prevalence.

That standard, accepting these matters and giving appropriate emphasis to general deterrence should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case. I use the word "contumacious" in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at pp542-3. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in ss10 and 11 of the Criminal Law (Sentencing) Act and established sentencing principles are sufficient further guide to the sentencer.

If the circumstances dictate that the sentence must be imprisonment, the length of the term must also be determined by the circumstances of both the offence and the offender. Also, it will then be necessary to consider suspending the sentence. It is well accepted that a suspended sentence of imprisonment is nonetheless a sentence of imprisonment and is a very significant punishment: Wood v Samuels (1974) 8 SASR 465 per Walters J at p468 and Elliott v Harris (No 2) (1976) 13 SASR 516 per Bray CJ at p527. Pursuant to s38 of the Act, the sentence of imprisonment may be suspended if the Court "thinks that good reason exists for doing so". Such reason may be found in the circumstances of the offence or the offender and Parliament has not laid down any particular matters which may agitate the exercise of the discretion to suspend. Nevertheless when exercising the discretion to suspend a sentence of imprisonment, the Judges and Magistrates must have regard to all the relevant matters and principles.

In The Queen v Kruger (1977) 17 SASR 214 at p221 Bray CJ, with whom the other members of the Court agreed, accepted the observations of Walters J in Wood v Samuels (supra) as to a suspended sentence. Walters J said, at pp468-469: "Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court's clemency.

Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided. Apart from the matters which are specifically mentioned in s4(2a) of the Offenders Probation Act and to which a court must necessarily direct its attention before deciding that a sentence of imprisonment ought to be suspended, the considerations governing the choice between a custodial sentence and a suspended sentence cannot be identified by any constant ratio. The factors to be taken into account must invariably be different in the particular circumstances of each particular case."

See also the observations of King CJ in R v Buckman (1988) 47 SASR 303 at p304 where he said that the sentence is suspended where the Court considers it appropriate "to give the offender a last chance to avoid imprisonment by leading a law-abiding life".

In my view, there can be no sound reason in principle to exclude a first offender from the option of a suspended sentence regardless of the circumstances of both the offence and the offender. The first offender could qualify for consideration in accordance with the principles established in these cases. If having considered all of the circumstances, the sentencer thinks that there is good reason to do so, then the discretion is to be exercised. I do not think there is any sound reason to establish a sentencing standard for a person who commits this offence for the first time which fetters the exercise of the discretion any further.

Of course, different considerations must apply to the offender who is before the Court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.

If the sentencing standard is to be what I propose, the sentencer will be able to follow the observations that, subject to protection of the public, the Court should lean towards mercy, per Napier CJ in Webb v O'Sullivan (supra) and that courts should "in our compassion, assist another human being to avoid making ruin of his life" per King CJ in Yardley v Betts (supra). In my view, the capacity to do justice is compromised by overly strict sentencing standards.

In general, I agree with the Chief Justice that a different approach should not be taken when suspension is by administrative decision but, like him, I would leave open for separate consideration suspension imposed by the Commissioner of Police or Registrar of Motor Vehicles under s88 or s89 of the Motor Vehicles Act. My concern is whether the manner in which the administrative suspension of licence comes to the attention of the offender will adequately bring to his or her attention the seriousness of driving under suspension. However, if the sentencing standard is less rigorous as I propose, any relevant circumstances about that matter may be brought to the attention of the Court.

I agree with the orders proposed by the Chief Justice with respect to all appeals. The appeals in the matters of Cadd, Hall, Illes and Vlachos should be dismissed. The Court should not intervene for the reasons given by him. However, if my view about the correct sentencing standard is correct, although the material before us is limited, there does appear to be sufficient to justify suspension of the sentences. In some cases loss of employment may be the factor which tips the balance in favour of suspending a sentence. Without knowing more about each matter and each respondent, I would not want to express any comment about the respective sentences.

In the matter of Quinn, I think the approach in sentencing did not accord with the sentencing standard which should be applied as there should not be any distinction drawn because his licence was suspended by administrative decision. He is a married man with three young children and in employment as a labourer earning $320 per week. Usually his wife drove the family motor car but she left it at the house of a friend and Quinn drove it home. He did not have any previous convictions. It is not possible to say from this meagre information if the circumstances of the offence or of Quinn would justify a sentence other than imprisonment although it would seem likely that the circumstances would justify suspension of any term of imprisonment which may be justified. If a fine is appropriate, there is insufficient information to say whether the fine of $500 is adequate. For these reasons I agree with the order proposed by the Chief Justice. The matter must be remitted to a learned Magistrate for sentencing.

I have had the advantage of reading in draft the reasons of Doyle CJ and Duggan J and Mullighan J.

The Solicitor General argued during the course of this appeal that as this matter was an appeal from a sentence imposed by a Magistrate the principle enunciated by this Court in R v Osenkowski (1982) 30 SASR 212 or as enunciated by the High Court in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 does not apply to appeals from the Magistrates Court and the matter ought to be considered upon the basis that it is simply an appeal from the exercise of a discretion i.e. the sentencing discretion of a Magistrate. It was submitted by the Solicitor General that this Court was not constrained by the principles enunciated in the two cases mentioned in a consideration of a prosecutor's appeal on sentence from a Magistrate.

King CJ stated the principle in R v Osenkowski at 212-213:

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

In Everett v The Queen Brennan, Deane, Dawson and Gaudron JJ said at 299: "Section 401(2)(c) of the Tasmanian Criminal Code confers upon the Court of Criminal Appeal jurisdiction to grant leave to the Attorney-General to appeal against sentence. Such a jurisdiction has become commonplace throughout this country and the common law world. Nevertheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory directions to the contrary, recognise that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a 'court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified.' In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310:

'an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.'

The reference to 'matter of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in point of principle'".

No appeal lay at common law in relation to a conviction on an information or indeed from the dismissal of the information or from a sentence upon conviction on an information. Such appeals are creatures of statute. "An appeal is not a common law proceeding. It is a remedy given by statute (Attorney-General v Sillem; Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan).

The scope and effect of an appeal must in the end be governed by the terms of the enactment creating it."

(Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 at 225. See also Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 at 47.)

No appeal lay at all in relation to those matters in this State until the passing of the Criminal Appeals Act in 1924. Prior to the passing of the Criminal Appeals Act of 1924 a convicted person had no right of appeal from that conviction and was only able to have that conviction reviewed if the convicted person obtained certiorari. The Criminal Appeals Act gave for the first time, a person convicted on information the right to appeal against conviction on any ground of appeal which involved a question of law alone, or upon the certificate of the Judge of the Supreme Court before whom he was tried that it was a fit case for appeal on any ground of appeal which involved a question of fact alone or a question of mixed law and fact, or with the leave of the Full Court on any ground of appeal which involved a question of fact alone or a question of mixed law and fact or any other ground which appeared to the Full Court to be a sufficient ground of appeal, and with the leave of the Full Court against the sentence passed on his (or her) conviction unless the sentence was one fixed by law.

The Crown had no right of appeal under the Criminal Appeals Act against either an acquittal or sentence upon a conviction. The Criminal Appeals Act was repealed by the Criminal Law Consolidation Act of 1935 but that later Act re-enacted the provisions relating to appeals as were previously enacted in the repealed Criminal Appeals Act. Therefore no right of appeal was given to the Crown by that enactment.

In 1980 the Criminal Law Consolidation Act was amended to provide for the first time for a right of appeal to the Attorney-General. Section 352(2) read:

"(2) Where a person is convicted on information and sentenced, the Attorney-General may, with the leave of the Full Court, appeal to that Court against the sentence passed on that person, unless the sentence is one fixed by law."

At the same time s353 was amended. Prior to 1980 s353(4) had provided, that on an appeal against sentence the Full Court could if it thought that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution. Section 353 was amended to provide that s353(4) should be read subject to s353(5) which provided:

"(5)The Full Court shall not exercise its powers under subsection (4) of this section to increase the severity of a sentence except upon an appeal by the Attorney-General against the sentence."

The effect of those amendments was to give to the Attorney-General, for the first time, a right to seek leave of the Full Court to appeal against a sentence on a conviction upon information in the Supreme Court and District Court and at the same time to disempower the Full Court from increasing a sentence unless it was upon the appeal of the Attorney-General, who had first obtained leave to appeal from the Full Court itself.

The principal Act was also amended to include, again for the first time, (S350(1a)) that where a person is tried upon information and acquitted, the court should upon the application of the Attorney-General, reserve any question of law arising upon the trial for the consideration and determination of the Full Court. The reservation of any question of law for the consideration and determination of the Full Court, could not, however, invalidate or otherwise affect the acquittal. [s351(2a)]

In 1996 amendments were made to s352 of the Criminal Law Consolidation Act. I set out s352 in its amended form: "(1) Appeals lie to the Full Court as follows:

(a) if a person is convicted on information -- (i) the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone; (ii) the convicted person may appeal against the conviction on any other ground with the leave of the Full Court or on the certificate of the court of trial that it is a fit case for appeal; (iii) the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law) on any ground with the leave of the Full Court; (b) if a court makes a decision on an issue antecedent to trial that is adverse to the prosecution, the Director of Public Prosecutions may appeal against the decision-- (i) as of right, on any ground that involves a question of law alone; or (ii) on any other ground with the leave of the Full Court; (c) if a court makes a decision on an issue antecedent to trial that is adverse to the defendant-- (i) the defendant may appeal against the decision before the commencement or completion of the trial with the leave of the court of trial (but leave will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial); (ii) the defendant may, if convicted, appeal against the conviction under paragraph (a) asserting as a ground of appeal that the decision was wrong.

(2) If an appeal or an application for leave to appeal is made to the Full Court under this section, the Full Court may require the court of trial to state a case on the questions raised in the appeal or proposed appeal and the matter will then be dealt with in accordance with the provisions applicable to cases stated in the same way as if the questions had been reserved."

That section preserved intact the rights of appeal given to convicted persons. It also preserved to the Director of Public Prosecutions the right to appeal against sentence on any ground with leave of the Full Court. The amendments at that time recognised, again for the first time, the concept of issues antecedent to trial which were defined in s348 in the following terms:

"means a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court".

Section 352 was amended to provide that if a court makes a decision on an issue antecedent to trial that is adverse to the prosecution, the Director of Public Prosecution may appeal against a decision as of right on any ground that involves a question of law alone or on any other ground with the leave of the Full Court. At the same time the section was amended to allow a defendant to appeal against a decision in relation to an issue antecedent to trial adverse to the defendant before the commencement or completion of the trial, with the leave of the trial court. Such leave is only to be granted in the circumstances set out in s352(1)(c)(i). The defendant however has the right, if convicted, to appeal against a conviction under s352 asserting as a ground of appeal that the decision given on an issue antecedent to trial was wrong.

Therefore in relation to proceedings upon information in the Supreme Court or District Court it can be seen that prior to 1924 neither party had a right to appeal, although both parties had a right to call into question the conviction or even the acquittal by applying for a writ of certiorari to the Court. In 1924 convicted person were given rights of appeal against conviction in the circumstances which I have mentioned and a right of appeal against sentence again in the circumstances mentioned.

It was not until 1980 that Parliament recognised that the Crown was entitled to appeal in relation to any matter, and then it provided that the Crown should be entitled to appeal, with leave of the court, only against a sentence imposed upon a convicted person. At the same time Parliament recognised that it would be appropriate for the Crown to have the right to require a trial court to reserve a question of law for the Full Court, although expressly recognising that such a reservation would not affect the verdict of acquittal given in the court below.

In 1996 Parliament recognised that the Director of Public Prosecutions should have a right of appeal in relation to issues antecedent to trial if those issues are decided adversely to the Crown. There is nothing in s352 in relation to the Crown's right to appeal upon decisions adverse to the Crown relating to issues antecedent to trial to suggest that the Director of Public Prosecutions has any particular test to satisfy before the Director of Public Prosecutions may have the matter determined by the Full Court. That is not surprising because at the time that the Crown would be seeking to agitate that right of appeal there could not have been a conviction or a verdict of acquittal but only an order that the matter be stayed upon the basis that it was an abuse of process.

The Crown, and more lately the Director of Public Prosecutions, has never had a right in this State to appeal against a verdict of acquittal in the Supreme Court and District Court and has only ever had a limited right to seek leave to appeal against a sentence consequent upon a conviction in those Courts.

Section 367 of the Criminal Law Consolidation Act provides inter alia that the power of the Full Court to give leave to appeal may be exercised by any judge of the Supreme Court in the same manner as it may be exercised by the Full Court itself, but if the judge refuses the application for leave to appeal the appellant is entitled to have the application for leave to appeal heard by the Full Court.

Section 367 does not discriminate between an application brought by a convicted person or the Director of Public Prosecutions. However the Supreme Court Criminal Appeal Rules do. Rule 15(2) provides, notwithstanding s367, that all applications for leave to appeal by the Director of Public Prosecutions shall be considered by the Full Court in the first instance.

To require the Director of Public Prosecutions to seek leave from the Full Court is consistent with the intention of Parliament that the Director of Public Prosecution's access to the Full Court ought to be limited. It is also consistent with the view that the statutory jurisdiction given to the Full Court to review the sentence of a person convicted in the Supreme Court or District Court "represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy". Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 per Deane and McHugh JJ at 234. Particularly the jurisdiction of the Full Court to hear an appeal by the Director of Public Prosecutions from a sentence imposed in the Supreme Court or District Court cannot be exercised until the Full Court itself is satisfied that the matter is one which merits leave to appeal being given. The granting of leave to appeal to the Director of Public Prosecutions is no mere matter of form and there must be strict compliance with the procedures: Malvaso v The Queen per Mason CJ, Brennan and Gaudron JJ at 233.

Appeals From Proceedings For Simple Or Summary Offences Or Minor Indictable Offences

In 1921 Parliament enacted the Justices Act to consolidate and amend certain statutes relating to Justices of the Peace. The Act dealt with complaints to justices in relation to simple offences and minor indictable offences and provided for the procedure under which simple offences and certain minor indictable offences should be determined. The Act provided that any court of summary jurisdiction, which was constituted by the Act, could in its discretion reserve any question of law for the consideration of the Supreme Court and state a special case or cases for the opinion of the Supreme Court (s162). It also provided for appeals.

"(1) Any person aggrieved by any conviction, order, or adjudication of a Court of Summary Jurisdiction (including a conviction of a minor indictable offence, or an order dismissing a complaint of a simple offence) may appeal to the Supreme Court from such conviction, order or adjudication, as hereinafter provided, in every case, unless some Special Act expressly declares that such conviction, order, or adjudication shall be final, or otherwise expressly prohibits any appeal against the same; ..."

Section 164 provided that there should be no appeal nor could any conviction, order, determination, or adjudication be removed into the Supreme Court by certiorari or otherwise except as provided by the Act.

The Act contemplated that a convicted person could appeal against a conviction for a simple offence or a minor indictable offence. So also s163 allowed for a convicted person to appeal against the sentence imposed upon that person by the Court of Summary Jurisdiction.

The expression "person aggrieved" in the context of this section included a complainant (prosecutor). I think that follows from the words of the section in parentheses (including ... an order dismissing a complaint of a simple offence). Only a complainant would be a person aggrieved in that context. (But see Nilsson v Nilsson [1922] SAStRp 47; [1922] SASR 405 in relation to informants under the Police Act. See also Mason and Brennan JJ in Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 at 48).

Section 163 also allowed for a prosecutor, as a person aggrieved, to appeal from an order dismissing a complaint of a simple offence. The words in parentheses are clearly expressed and free from ambiguity so that it can be said the prosecutor as a person aggrieved, had a right to appeal from an order dismissing a complaint. It would follow on the ordinary principles of construction that a prosecutor had no right of appeal against an acquittal of a person charged with a minor indictable offence.

Section 163 however allowed, a prosector to appeal from any sentence imposed by a magistrate whether it was for a simple offence or a minor indictable offence. Schwerdt v Talbot [1962] SASR 155; McNair v McEvoy [1966] SASR 342; Daehnke v Caruso [1970] SASR 53.

The Justices Act was amended in 1923 and in particular s163 was amended to read:

"(1) There shall be an appeal to the Supreme Court from every conviction, order, and adjudication of a Court of Summary Jurisdiction (including a conviction of a minor indictable offence, or an order dismissing a complaint of a simple offence) ..."

That amendment removed the somewhat ambiguous reference to "a person aggrieved": Nilsson v Nilsson (supra). It did not allow a prosector to appeal from a verdict of acquittal in relation to a minor indictable offence.

In 1956 there was a further amendment to s163 and subs (1A) was included. It read:

"(1A) Notwithstanding anything contained in s46 of The Acts Interpretation Act 1915-1949, there shall be no appeal to the Supreme Court from any order dismissing a charge of a minor indictable offence."

Section 46 of The Acts Interpretation Act then read: "46. When the Act passed after the passing of this Act contains a provision that proceedings in respect of offences shall be disposed of summarily (whether the expression used is "summarily" or some other expression having the same meaning), and also contains a further provision that there shall be an appeal in respect of such proceedings, such further provision shall be taken to mean--

(a) that there shall be an appeal from any conviction in proceedings so disposed of under such Act, or from any order in such proceedings dismissing any information or complaint under such Act, or from any other order made in such proceedings on any such information or complaint;

(b) that such appeal shall be to the Supreme Court; and

(c) that such appeal shall be regulated by the Justices Act, 1921, and any amendment thereof, or any Act or Acts for the time being in force regulating appeals from courts of summary jurisdiction: Provided that the court on such appeal may make any order as to costs which it thinks fit, and the amount of costs so ordered may exceed twenty dollars."

Section 46(a) might have been thought to allow a prosecutor to appeal from the dismissal of any information containing an indictable offence created by any Act passed after the Acts Interpretation Act. That construction would have meant that some but not all verdicts of acquittal in respect of minor indictable offences in the Magistrates Court were capable of being appealed: Nilsson v Nilsson (supra). That would have been quite unsatisfactory

No doubt s163 (1a) was included to put beyond doubt any ambiguity raised by s46 so that a verdict of acquittal on any minor indictable offence was not appealable.

In 1982 the Justices Act was further amended to delete the words in parentheses in s163 and substitute these words in parentheses:

"(including an order dismissing a charge of a simple offence or a minor indictable offence)".

The words of that section, as amended, are plain. In Davern v Messel (supra) at 48 Mason and Brennan JJ approved a dictum of Palles L.C.B. in R v Tyrone County Justices (1905) 40 Ir L.T. 181 who, in considering whether a statute gave a right to appeal against an acquittal, said: "that before you can appeal against an acquittal, the words must be clear, express, and free from any ambiguity".

The Justices Act as amended satisfied that test. The words clearly, expressly and unambiguously allowed a prosecutor a right of appeal from an acquittal.

Since 1982 a prosecutor, whether as a complainant or informant, has had right of appeal against the dismissal of a charge of simple offence or a verdict of acquittal on a minor indictable offence and against any sentence imposed upon a conviction on either a simple offence or minor indictable offence.

In 1992 there were substantial amendments to the Justices Act and other procedural legislation. The Justices Act was substantially amended and retitled the Summary Procedure Act. The part of that Act, including the section giving rights of appeal to both accused persons and complainants or informants, was repealed.

At the same time the Magistrates Courts Act was enacted and a division of that Act was dedicated to appeals from the Criminal Division of the Magistrates Courts.

Section 42 of the Magistrates Courts Act 1991 provides: "(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).

(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.

(a) in the case of an action relating to an offence categorised under the Summary Procedure Act 1921 as an industrial offence - to the Industrial Court; or

(3) If an appeal to the Supreme Court arises from proceedings related to a minor indictable offence, the appeal will be to the Full Court unless the appellant elects to have it heard by a single Judge, but, even though such an election is made, a Judge may refer the appeal to the Full Court.

(4) On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.

(5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:

(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;

(b) it may remit the case for hearing or further hearing before the Magistrates Court;

(c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.

(6) Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance."

Criminal action is defined in s3 of that Act and means an action or proceeding brought in the Criminal Division of the Court. Judgment is also defined in s3 as meaning a judgment, order or decision and includes an interlocutory judgment or order.

Section 42, read in conjunction with the definitions in the Act, must be considered in order to determine the principles applicable in prosecutor's appeals from the dismissal of proceedings in summary offences or from verdicts of acquittal or from sentences consequent upon conviction in the Magistrates Court. The question is one of statutory interpretation. Davern v Messel per Gibbs CJ at 31.

Section 42 clearly enough gives both the person charged and the prosecutor, whether as complainant or informant, a right of appeal against any judgment, order or decision given in a criminal action including a judgment dismissing a charge of a summary or minor indictable offence. In that sense a judgment must include a verdict of not guilty on a minor indictable offence. Just as the Justices Act clearly, expressly and unambiguously gave a prosecutor a right to appeal against an acquittal from a simple offence or minor indictable offence so also does the Magistrates Courts Act in the same terms give the prosecutor a right to appeal against an acquittal from a summary offence or minor indictable offence. Further there is no doubt, in my opinion, that the Act empowers convicted persons and prosecutors to appeal from a sentence imposed upon a conviction for a summary offence or minor indictable offence.

The right of appeal given to a party to the criminal action is limited by the section itself, thereby precluding appeals from any judgment arising from a preliminary examination.

The section provides that if the appeal is from proceedings related to a minor indictable offence the appeal will be to the Full Court unless the appellant elects to have it heard by a single judge.

Section 42 thereafter provides for the procedure on appeal. Section 42(4) gives the court the power to re-hear any witnesses or receive fresh evidence; if the interests of justice so require.

It is not an appeal stricto sensu, which is confined to a consideration of the judgment on the material which the lower court had before it. Nor is it an appeal de novo because the complainant/informant is not called upon to start his or her case again and call witnesses. It is an appeal by way of re-hearing which means a re-hearing "of the cause at the date of the appeal, that is 'by trial over again on the evidence used in the Court below; but there is special power to receive further evidence'. In re Chennell: Jones v Chennell (1878) 8 Ch D 492)" per Mason J in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 619. See also Wigg v Architects Board of South Australia (1984) 36 SASR 111. An appeal under the Justices Act was in the nature of a re-hearing Gray v Jones [1948] SAStRp 13; (1948) SASR 201.

In the case of appeals under this section the court has the further statutory power to re-hear any witnesses. The rights of the parties on the appeal are to be determined on the facts before the appeal court and by the law applying at the time of the appeal and this court may give such judgment "as ought to be given if the case at that time came before the court of first instance" per Mason J. Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (supra) at 620.

The Rules of the Supreme Court to which I shall refer later, confirm that the section envisages an appeal by way of re-hearing.

The appellate court is invested with very wide powers consistent with the process being a re-hearing with power to re-hear any witnesses or receive fresh evidence. It can confirm, vary or quash any judgment and it can remit the case for hearing or further hearing before the Magistrates Court. It can, upon an appeal by the Crown, enter a conviction against a party who has previously been acquitted.

Section 42 specifically provides that the right of appeal be in accordance with the rules of the appellate court. An appeal under s42 of The Magistrates Court Act is governed by r96C. Rule 96C.06 provides that where an appeal under s42 of the Act is, by the Act or an order of the court to go to the Full Court, it is to be governed by r95 and if it is to go to a single Judge it is to be governed by r97. The Rules could not give to a prosecutor rights to appeal not given by the legislation itself. They can only put in place the procedural machinery for the exercise of the substantive rights.

Appeals which are governed by r97 are appeals by way of re-hearing (r97.17). Rule 97.18 provides for the powers of the court on an appeal pursuant to that rule. It provides: "On the hearing of an appeal governed by Rule 97 the Court:

(a) is to have all the powers and duties as to amendment and otherwise as the Court or tribunal appealed from had; (b) may in its discretion receive further evidence upon any question of fact; (c) may draw inferences of fact; (d) may amend, set aside or discharge any judgment appealed from; (e) may give any judgment, assessment or award or make any order which might have been made by the Court or tribunal appealed from and make such further or other order as the justice of the case may require; (f) may direct that the proceedings be remitted for a new trial or further consideration with or without special direction, provided that where it appears to the Court that a wrong decision or miscarriage of justice affects part only of the matter in controversy, or some, or only one of the parties, the Court may give final judgment as to part thereof, for some or one only of the parties, and direct a new trial as to the other part only or as to the other party or parties; (g) make such order as to the costs of the trial or appeal as it deems fit; (h) may exercise its powers notwithstanding that: (i) any party to the proceedings in the Court or tribunal below has not appealed; (ii) any ground for allowing or dismissing the appeal or varying the decision is not stated in any notice of appeal, notice of cross appeal or notice of contention; (iii) that there has been no appeal from some part of a decision; (i) may reverse or vary any interlocutory orders on the appeal."

The powers given to a single Judge on an appeal by the Crown against an acquittal in proceedings on an indictable offence are very wide. Where the appeal is from proceedings relating to a minor indictable offence and no election is made to have the matter heard by a single Judge then the matter will go to the Full Court and be governed by r95. It is not entirely clear whether r95 supposes that an appeal under that rule is by way of re-hearing or otherwise. Unlike r97 there is no rule stating the appeal to be by way of re-hearing. However I think that the power given to the Court in s42 of the Magistrates Court Act necessarily means, even if the rule is silent, that an appeal to the Full Court pursuant to s42 is an appeal by way of re-hearing. That conclusion is not inconsistent with the rule itself which gives similar powers to the Full Court in hearing appeals as are given to a single Judge under r97.17 (See rule 95.15).

The matters to which I have referred in relation to appeals from proceedings based on information in the Supreme Court and District Court including the history of the legislation; the inability of the Crown and later the Director of Public Prosecutions to appeal from verdicts of acquittal in the Supreme Court and District Court; the limited right of appeal given to the Director of Public Prosecutions in appeals from sentences in those courts; and the appeal process itself in requiring leave, stand in stark contrast, in my opinion, to both the substantive and procedural law relating to appeals by prosecutors from the Magistrates Court.

In any appeal brought by the Crown against the dismissal of any proceeding relating to a summary offence or the dismissal of any proceeding relating to a minor indictable offence, the court has very wide powers. There is nothing apparently on the face of the section to suggest that the exercise of those powers ought to be in some way different when it is the prosecutor appealing from an acquittal than where it is a person convicted appealing from the conviction. The powers given to the court are apparently the same and are to be exercised in the same way by way of re-hearing.

There appears to be nothing again in the section which would suggest that the prosecutor must satisfy any particular test before he or she is entitled to bring an appeal against the dismissal of a simple offence or a minor indictable offence.

However there may be a reluctance to interfere with a verdict of acquittal based upon a reasonable doubt. Young v Gilmore, Gardener and Gilmore (Prior J 20 December 1991). In Thoregood v Warren (1979) 20 SASR 156 Zelling J said at 159:

"The fact is that appellate courts have rightly been very reluctant to interfere with a verdict of acquittal based upon a reasonable doubt. A finding of reasonable doubt owes much to the atmosphere of the trial and the appraisal of the witnesses by the court at first instance, and neither of those things are readily susceptible to review by an appeal court."

"It may be that some of this hesitation by appellate courts derives from the ingrained view of the law that a right of appeal against an acquittal is not presumed, except when given expressly in plain words. The history of that can be seen in the judgment of a Divisional Court in The King v The Keepers of the Peace and Justices for the County of London. There is no doubt that there is such a right of appeal here. Something of that dislike of an appeal from an acquittal has perhaps coloured the attitude of appeal courts in their treatment of appeals by prosecutors, especially where the acquittal below was on the basis of reasonable doubt. However that may be, I am of the opinion that the view of the law is salutary, and that an acquittal based upon a reasonable doubt should not be interfered with except in a very unusual case, of which this is not one."

In Semple v Williams (1990) 156 LSJS 40 Olsson J said:

"It follows that, for that reason alone, quite apart from the permanent position of disadvantage above adverted to, an appellate court will be prepared to set aside an order of dismissal based upon the impact of the evidence upon the fact finder and remit a matter for retrial only when it appears that the order of dismissal sought to be impugned was plainly wrong on any reasonable interpretation of the recorded evidence and (where relevant) the inferences which patently arise from it."

It is not necessary to decide whether it is only in very unusual cases or whether it is only in cases where the order of dismissal was plainly wrong or whether it is only in some other circumstance that this Court will interfere with a verdict of acquittal. This is not an appeal against an order dismissing a summary offence or from a verdict of acquittal. It is enough to notice consistent with the principle of double jeopardy that there is a reluctance, as Prior J put

it, to interfere with a verdict of acquittal based upon a reasonable doubt. An acquittal, challenged by reason of error of law, may be another thing.

So also there is nothing in the section which suggests, at least on the face of it, that the Crown is only entitled to appeal in relation to a sentence imposed upon a person convicted of a summary offence or a minor indictable offence in the circumstances set out in R v Osenkowski or R v Everett. As well there is nothing to suggest that the test in relation to an appeal would be different in the circumstances of an appeal against the sentence on a summary offence or a sentence on a minor indictable offence.

However it was submitted by the respondent that the principles in R v Osenkowski and R v Everett apply notwithstanding the absence in the legislation of any suggestion that prosecution appeals are in any way limited.

In Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230 the High Court was called upon to consider the effect of s5D of the Criminal Appeal Act (NSW) which provided that:

"the Attorney-General may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or any Court of Quarter Sessions and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper."

Knox CJ and Powers J thought that that section conferred unlimited judicial discretion on the Court of Criminal Appeal in appeals of that kind. Gavan Duffy and Starke JJ said that there was nothing in the words of the section to limit the exercise of the discretion and that the Court of Criminal Appeal was able to exercise its discretion and vary a sentence imposed upon a prisoner.

Isaacs and Higgins JJ dissented. Isaacs J believed that the Court of Criminal Appeal could not interfere unless it could be shown that the sentence imposed by the sentencing Judge was "not merely inadequate, but manifestly so, because the learned Judge in imposing it either proceeded upon wrong principles, or undervalued or overestimated some of the material features of the evidence." (249)

Whittaker v The King was considered by the High Court in Griffiths v The Queen (1977) 137 CLR 293. In that case the appellant submitted that s5D of the Criminal Appeal Act did not give to the Court of Criminal Appeal, upon an appeal by the Attorney-General, the ability to substitute its own view of the appropriate sentence to be imposed merely because the Court of Criminal Appeal did not agree with the sentence which the trial Judge had imposed.

Barwick CJ reasoned that the authority of the Court of Criminal Appeal to hear and determine an appeal by the Attorney-General is derived exclusively from s5D of the Criminal Appeal Act and it would be strange to construe s5D as giving to the court more than a truly appellate function. He said that Whittaker v The King did not stand for the proposition that the Supreme Court sitting as a Court of Criminal Appeal was not restrained as appellate courts usually are to the remedy of error. He said that the court did not have complete and unfettered discretion to substitute what it thinks is a proper sentence for that which the trial Judge had imposed, without first considering whether in truth the trial Judge has erred in a matter of principle or whether he (or she) had acted unreasonably or in disregard of relevant evidence or whether in some other way he (or she) had exceeded or misused the discretion which is committed to him (or her) in the sentencing of convicted persons.

He concluded that the reference to discretion in the section itself only ensured that where an error had been identified the court may substitute the sentence which it had considered appropriate for that imposed by the trial Judge. The use of the word discretion in the section made it clear that the court was not limited to acting to quash a verdict but had, if error was shown, the jurisdiction to sentence for itself.

He said that inadequacy of sentence was not satisfied by the Court of Appeal reaching a conclusion different from the sentence imposed by the trial Judge. He said that the inadequacy of the sentence must be such that it was indicative of error or departure from principle. He went on to say at 310:

"On my view of the proper meaning of s5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

"If the Court of Criminal Appeal had had jurisdiction it would have been properly exercising its discretion in interfering in the present case. Under s5D the Court has a wide discretion whether or not to interfere even though it may reach the conclusion that another sentence should have been passed. In this respect s5D gives a wider discretion than s6(3) where the Court is bound to interfere once it reaches the conclusion that the sentence was not both warranted in law and one that should have been passed. The trial Judge is given a wide discretion from the circumstance that a Court on appeal will not lightly conclude that another sentence should have been passed. The incorrectness of the sentence must be manifest. See House v The King (1936) 55 CLR 499 at 505. But if it does so conclude it must interfere on the case of a defendant's appeal; it may in its discretion interfere in the case of an appeal under s5(d). Any different interpretation of Whittaker v The King is, in my opinion, wrong."

Murphy J said that s5D was an extraordinary remedy which ought only to be invoked for reasons of great public importance.

"Under s5D the function of the Court of Criminal Appeal is not simply to do what should have been done by the primary judge. It may in its discretion vary the sentence; or decline to vary the sentence, even if it were of the opinion that the sentence should not have been imposed. Its discretion not to vary may be and should be used to minimise the increasing of primary sentences and to discourage frequent Crown appeals, so that the appeals may be invoked only rarely as the extraordinary remedy that was intended, and that it was until recent years."

The dictum of Barwick CJ in Griffiths v The Queen has been specifically adopted by the High Court in R v Everett in the passage to which I have already referred. In R v Everett the High Court directed its attention only to circumstances where the Attorney-General or the appropriate law officer is obliged to seek leave to appeal. However the reasoning in Griffiths v The Queen and Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 is not limited to cases in which the appropriate law officer is required to seek leave. R v Diep and Phan (1994) 26 A Crim R 66. A reading of both of the decisions of the High Court would suggest that, whether or not the law officer is obliged to seek leave, the section giving the law officer the right of appeal by leave or otherwise ought to be considered in circumstances where it cuts across "the time honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed." (R v Everett at 299).

I think in those circumstances the Solicitor General's submissions should be considered having regard to the following. The principles to be applied in a prosecutor's appeal from the Magistrates Court must be determined upon the construction of the Magistrates Courts Act and in particular s42. In a consideration of the construction of the section it must be remembered that it is "a principle of interpretation that no statute will be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed" per Gibbs CJ in Davern v Messel at 31. The principle of relief against double jeopardy is such a fundamental principle. It has been held to apply to appeals against acquittals and appeals against sentence notwithstanding in its inception it appears to have been a rule only forbidding a trial in a new and independent case where a man had already been tried once. Davern v Messel per Gibbs J at 29 and Mason and Brennan JJ at 55.

The principle of double jeopardy has been held to underlie the reasons for the principle expressed in R v Everett. The construction of the section must be approached upon the basis that the principle of the presumption of relief against double jeopardy is applicable to both appeals against acquittals (Thompson v Mastertouch TV Service Pty Ltd (No. 3) [1978] FCA 24; (1978) 38 FLR 397 and Davern v Messel (supra)) and appeals against a sentence imposed upon convictions: (Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 per Deane and McHugh JJ at 234; R v Tait (1979) 24 ALR 473 at 476). However if the plain words of the section unambiguously create rights of appeal then the presumption against double jeopardy will be displaced.

The legislation to which I have referred shows that Parliament has evinced an intention to allow wider powers of appeal to a prosecutor from a Magistrate Court than the Supreme Court or District Court. Parliament has given a right of appeal from the Magistrates Court from all acquittals in relation to both summary offences and minor indictable offences and all sentences upon conviction. It has not required the prosecutor to obtain leave to appeal in any of those cases. The absence of a requirement to seek leave is not decisive but it does indicate the wider scope for prosecutors to appeal from the dismissal of a complaint, or verdict of not guilty on proceedings for minor indictable offences and on sentences imposed on convictions. It has however recognised that an appeal from an acquittal or conviction on a minor indictable offence or a sentence passed upon that conviction ought to be dealt with by the Full Court.

On the other hand there is no right of appeal given to the Director of Public Prosecutions from a verdict of acquittal in the Supreme Court or District Court, a limited right of appeal to the Director of Public Prosecutions in relation to an issue antecedent to trial, a right to the Director of Public Prosecutions to have reserved to the Court of Criminal Appeal a question of law arising upon the trial but not however so as to invalidate or affect an acquittal and a right to seek leave to appeal on a sentence passed upon a conviction in these courts. Clearly it is intended by the legislation to limit the Director of Public Prosecution's rights to seek review of decisions of the Supreme Court and District Court.

The legislation in this State in relation to appeals from courts of summary jurisdiction is consistent with the trend of legislation in other States of the Commonwealth and England. In Davern v Messel (supra) Gibbs CJ said at 37:

"A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted. In England this can be done on appeal by way of case stated: see Bracegirdle v Oxley and Reg v Dorking Justices; Ex parte Harrington. In Australia also the procedure of appeal by way of case stated has been held to be available to an aggrieved complainant: Kench v Bailey. In addition, however, there is available the more ample remedy of appeal by order to review, and in some of the Australian States an unsuccessful complainant may appeal by this means against the dismissal of a complaint by a magistrate or justices."

"The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate: R v Weaver, per Evatt J."

In my opinion the Solicitor General's argument is right. The principle in R v Osenkowski and as slightly differently expressed in R v Everett does not apply in appeals from the Magistrates Court. That is because the plain words of the section do not admit of limitations. There is a general right given to a prosecutor, in the Magistrates Court, to appeal from an acquittal in proceedings for a summary offence or a minor indictable offence. The section does not require a prosecutor to obtain leave in respect of an appeal against sentence upon conviction although I accept that is not of itself decisive. It would be curious, however, if the section was to be read without any limitation being imposed upon a prosecutor in relation to acquittals except perhaps a reluctance to interfere with a verdict of acquittal, but as circumscribing the circumstances in which a prosecutor could appeal on sentence, particularly so because in its origins the presumption against double jeopardy applied to a second trial and not to sentencing.

I do not think there is anything in the legislation to require this Court to apply any different principles in relation to a prosecutor's appeal against sentence than a convicted person's appeal against sentence.

On an appeal against sentence, of course, and that is all that is presently being considered, a prosecutor would still have to establish that the sentencing discretion miscarried. It would not be enough for the appeal court to conclude that it would have imposed a higher sentence than that imposed by the sentencing Magistrate. This Court would not interfere on a prosecutor's appeal against an inadequate sentence unless the prosecutor established on appeal the matters referred to in House v The King (1936) 55 CLR 499 at 505:

"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

In my opinion the principle enunciated in R v Osenkowski and in R v Everett has no application to appeals by a prosecutor on sentence imposed in a Magistrates Court. On such appeals this Court, whether constituted by a single judge or the Full Court should treat such an appeal in the same manner as it would a convicted person's appeal against sentence on summary proceedings or a minor indictable offence. It would exercise the powers given by the section and the Rules where appropriate. It would only interfere with sentence when the prosecutor has satisfied the court that the sentencing Magistrate has acted upon a wrong principle or has allowed extraneous or irrelevant matters to guide or affect him or her or has mistaken the facts or has ignored a material consideration.

I agree with the Chief Justice that it is a function of this Court to establish standards of sentencing for particular offences when this Court believes it is appropriate so to do. I further agree with the Chief Justice that that function may be performed in two ways. First it may be done by indicating on a case by case basis the appropriate penalty for a particular offence. Secondly the Court can indicate in a particular matter that a class of offence should be considered within a sentence range.

There are a number of reasons why this Court can and should indicate in a general way that a particular class of offences should be dealt with within certain standards. First it gives general guidance to Judges of this Court and to the courts below of what the superior court within the State considers an appropriate range of penalties for a particular class of offence. Secondly an indication by this Court of an appropriate standard is likely to best ensure consistency of penalty throughout the State. Thirdly it is, in my opinion, part of the deterrent process that this Court pronounces, not only for the assistance of the courts below, but for the general education of the public and the particular education of those who may be likely to offend. The public should know in advance that offences of a particular kind will be likely to lead to a penalty in a range indicated by this Court.

I agree therefore that it is appropriate for this Court to indicate a standard in relation to some offences. However not all offences are capable of being categorised in that manner. Some offences such as assaults and manslaughter depend so very much upon the circumstances of the particular offence that they cannot be considered in a general way as being within any particular sentence range.

The question is whether or not driving whilst under disqualification is an offence of the kind that this Court can say there is a standard which ought to apply as the punishment for the offence or whether cases of driving whilst under disqualification require individual assessment and treatment. If the offence is one which this Court can indicate should be dealt with within a sentencing range then the further question is what is the appropriate sentencing range for this offence.

The class of persons who might commit this crime is limited to those who have been disqualified either by a court or by administrative act from holding or obtaining a drivers licence. Nevertheless as the reasons of the Chief Justice show the offence is prevalent. Indeed the number of offenders has increased in the last three years and in that same period the proportion that this offence bears to the more serious driving offences has increased. That is so even where this Court has adopted a standard in which the deterrent purpose of punishment generally predominates over other considerations. Eldridge v Bates [1989] SASC 1268; (1939) 51 SASR 532 per King CJ at 533.

A disqualification imposed by the Court might have come about by the commission of any number of offences relating to the driving and management of a motor vehicle including inadvertent driving such as driving without due care or even speeding or might have been imposed because a motor vehicle had been used in connection with the commission of a crime. There is a very wide range of circumstances in which a court might impose a period of disqualification. The disqualification imposed by the court can vary in length from a day to a number of years again depending on the circumstances giving rise to the disqualification. A person may be disqualified from holding or obtaining a drivers licence by administrative act in circumstances where the person has accumulated so many demerit points that the Registrar of Motor Vehicles is entitled to disqualify that person from holding or obtaining a drivers licence (s98BC and s81B(2)(c) Motor Vehicles Act). The Registrar of Motor Vehicles must, on becoming aware that a person who holds a learner's permit or a probationary licence has committed an offence of contravening a probationary condition, disqualify the person from holding or obtaining a permit or licence for six months (s81B Motor Vehicles Act). There are other circumstances whereby the registrar may by administrative act disqualify a person from holding or obtaining a drivers licence.

The circumstances giving rise to the disqualification therefore are infinitely variable.

The person who has been disqualified from holding or obtaining a drivers licence may have been guilty of incompetence or negligence or recklessness in the driving and management of a motor vehicle. Those persons in their manner of driving do constitute some danger to the public. But a person may be disqualified for some minor traffic infraction. Those persons are not necessarily a danger to the public. Those persons are not nearly as dangerous as those who drive whilst under the influence of alcohol.

The effect upon the offender of the order of disqualification is also variable. To some persons disqualification from holding or obtaining a drivers licence will be an extreme hardship giving rise to significant financial detriment and consequent hardship to that person's family. Some persons, whose livelihood is dependent upon the use of a motor vehicle, can suffer extraordinary hardship by reason of the imposition of a period of disqualification. For other persons the imposition of a period of disqualification is a social nuisance and no more. It may involve some minor financial detriment because the person has to use other transport or become dependent upon other persons. The bulk of those who are disqualified from holding or obtaining a driver's licence lie somewhere between the two groups to which I have referred.

For everyone of course a period of disqualification renders them vulnerable in circumstances where an emergency arises giving rise to the necessity of using a motor vehicle. The order for disqualification does not allow for those persons to drive a motor vehicle even in circumstances of emergency. Of course what is an emergency is in many ways a subjective matter.

This Court can only lay down guidelines if it can be satisfied that almost always a particular form of punishment is appropriate. That particular form of punishment might be imprisonment, a fine, an order for community service or a bond but there is no point in this Court attempting to lay down guidelines in respect of a particular offence unless the Court is satisfied that one or other of the forms of punishment allowed under the Sentencing Act is almost always appropriate for the particular offence.

Of course it has been submitted in this case that consistent with the decisions of this Court in Coombe v Douris (1987) 47 SASR 324 and Eldridge v Bates (supra), this offence is of a class which should be the subject of general guidelines and is an offence which ordinarily should give rise to a sentence of imprisonment which a court would only be rarely justified in suspending. It would, so it was said, be only in exceptional circumstances that a penalty other than an unsuspended sentence of imprisonment would be justified.

In Eldridge v Bates, King CJ noted that his remarks in Coombe v Douris had been cited with approval or applied by single Judges of the court in the cases to which he referred. He then took the opportunity of reiterating these remarks at 533: "The offence of driving while under disqualification is a most serious offence, as is indicated by the maximum penalty of six months imprisonment prescribed by the section. Its seriousness consists in the defiance of the law which it manifests and in the fact that it nullifies the effect of the order of disqualification which is imposed for the protection of the public. The effectiveness of orders of disqualification from holding or obtaining a drivers licence depends upon observance of them by the persons disqualified. If they are treated with contempt and ignored by the persons affected, the orders of the court designed to deter offenders and to protect the public are rendered ineffective. The ordinary punishment for driving under disqualification must be imprisonment. This is not to deny that circumstances may exist which would justify suspension of the sentence or some other order such as community service order. In my opinion, however, the circumstances would have to be exceptional to justify a penalty other than an unsuspended sentence of imprisonment. A suspension of a sentence of imprisonment will rarely be justified in view of the primary deterrent purpose of the penalty.

It is of the utmost importance that magistrates should appreciate their duty, painful though it might be on occasions, to impose sentences of imprisonment for this offence in order to maintain the effectiveness of disqualification orders. The judgment which I am about to give in this case should be a warning to all who may be tempted to drive under disqualification that imprisonment will almost certainly follow any non-observance of the disqualification."

Whilst White and Bollen JJ gave separate reasons it is clear that they agreed in the reasons of King CJ that almost invariably the ordinary punishment for driving under disqualification must be imprisonment and it would only be in exceptional circumstances that it would be appropriate to justify a penalty other than an unsuspended sentence of imprisonment.

The necessity for imposing an unsuspended period of imprisonment is said to arise because the offence consists of defiance of the law and renders nugatory the effect of an order for disqualification. If the courts do not impose immediate sentences of imprisonment the

effectiveness of orders of disqualification, which are designed to deter offenders and to protect the public, will be rendered ineffective.

Whilst Eldridge v Bates was decided a few days after the coming into operation of the Criminal Law Sentencing Act the case was argued prior to the coming into operation of the Act and was decided on the law as it stood prior to the coming into operation of the Criminal Law Sentencing Act. If of course the reasons for decision in that case are inconsistent with any of the provisions of the Criminal Law Sentencing Act then the decision must be reconsidered.

The Criminal Law Sentencing Act (s11) provides that a sentence of imprisonment must not be imposed for an offence unless, in the opinion of the court,: a) The defendant has shown a tendency to violence towards other persons;

b) The defendant is likely to commit a serious offence if allowed to go at large;

c) The defendant has previously been convicted of an offence punishable by imprisonment; or

d) Any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.

None of the circumstances in paragraphs a), b) and c) apply to offences of this kind so this class of offence could not be a class of offence which requires the imposition of a sentence of imprisonment unless any other sentence would be inappropriate having regard to the gravity of the offence.

This Court ought not to indicate that the offence of driving whilst under disqualification is an offence of a kind which should usually lead to a period of imprisonment unless this Court is satisfied that any other sentence would be inappropriate having regard to the gravity of the offence. In my opinion this offence is not so grave that this Court ought to indicate that the offence is of a kind that would satisfy s11 of the Criminal Law Sentencing Act. I appreciate that the offence necessarily means that the offender has disobeyed an order of this Court or an administrative act. In some cases there may be an element of deliberate defiance of a court order by the offender. Indeed the offender may treat the court order with contempt. In other cases, whilst the court order has been disobeyed, the offender has committed the offence in circumstances where he or she has been influenced by economic circumstances or social or personal responsibilities. I do not believe that it is possible to say that this offence is so grave that ordinarily a sentence of imprisonment should be imposed. It is a serious offence but in the context of the Sentencing Act it is not an offence which, by reason of its gravity, any other sentence would be inappropriate.

That is not to say that it would be inappropriate to sentence an offender to imprisonment for this offence. In some circumstances the offender's behaviour may be so bad that the court would be entitled to impose a sentence of imprisonment because of the circumstances of the offence itself. That would mean the court would impose a sentence of imprisonment because any other sentence would be inappropriate having regard to the circumstances of the offence not the gravity of the offence [s11(1)(d)].

As I have said, in my opinion, the offence is not so grave that this Court can say that a sentence of imprisonment would ordinarily be appropriate. The next question is whether

some other standard ought to apply. I think not. I do not think it would be appropriate to say that in the usual case a fine ought to be imposed or a community service order made or a bond be entered into. Each of these penalties might be appropriate depending upon particular personal circumstances of the offender but none of them are necessarily appropriate in almost all cases. As well, to suggest that any of those penalties would be ordinarily appropriate would be to suggest that some special circumstance were required before a sentence of imprisonment was imposed. That inference would be contrary to the legislation.

I therefore cannot agree with the decisions of this Court in Coombe v Douris and Eldridge v Bates that the ordinary punishment for driving under disqualification must be imprisonment. Moreover, I cannot agree that this Court can lay down any standard for offences of this kind.

There may be circumstances in which it is appropriate for a court to order the imprisonment of a first offender for a period of time but whether that is appropriate will depend upon the circumstances of the case.

The sentencing Magistrate must have regard to the circumstances in which the offence was committed. If appropriate regard is had to s11 of the Criminal Law Sentencing Act the circumstances of the offence will require that some offenders are imprisoned. No doubt a sentencing Magistrate would view contumacious offending as more serious and deserving of greater punishment.

It is not possible, in my opinion, to lay down in advance those circumstances which might give rise to a period of imprisonment. That would be to fetter the sentencing discretion reposing in the Magistrate.

Even where it will be appropriate to order imprisonment because of the particular circumstances of the case, the sentencing Magistrate will nevertheless be obliged to have regard to whether or not the sentence of imprisonment ought to be suspended. As in any other case, he or she will have to decide whether good reason exists for suspending the sentence of imprisonment. Whether or not good reason exists will depend upon the circumstances in the particular case and as well the individual circumstances of the offender. All of those circumstances which are considered in relation to any suspension of imprisonment pursuant to s38 of the Criminal Law Sentencing Act may be appropriate in a given case in relation to offences of this kind.

For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing Magistrate that good reason exists for suspending the sentence, increase. A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence. That is because a second offence would ordinarily exhibit contumacy on the part of the offender. So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. Again however, in my opinion, having regard to the fact that this type of offence is simply one which must be considered in relation to the circumstances of the offence and the circumstances of the offender it would be inappropriate to attempt to lay down any further guidelines than that.

In the end the appropriate penalty will be a matter for the good sense of the sentencing Magistrate, who has the advantage of experience in dealing with persons who offend by driving whilst disqualified.

I agree, in the end result, that the appeals in the matter of Cadd, Hall, Illes and Vlachos ought to be dismissed.

Mr Quinn was disqualified by administrative action on 2 December 1994 from holding or obtaining a driver's licence. The disqualification was made because Mr Quinn did not pay outstanding fines. He pleaded guilty to the offence in relation to the driving of a motor vehicle on 13 January 1995. He was unrepresented before the Magistrate and when this matter first came on for hearing in this Court. He had no excuse for the driving, describing his action as just driving home.

He told the Magistrate he was twenty-seven and married. He was in employment and earned $320 per week.

The sentencing Magistrate said that different considerations applied when the disqualification was imposed by administrative act. Particularly he said the order was not made by a Court for the protection of the public. That was so in this case but is not always so. A person who attracts sufficient demerit points to become liable to disqualification is a person against whom the public is entitled to be protected. He also said that disqualification by administrative act does not carry with it the verbal warning given by a Magistrate at the time of disqualification. His Honour then compared the seriousness of the offence to offences generally of a criminal nature which do not require custodial sentences. He fined Mr Quinn $500 and disqualified him from holding or obtaining a drivers licence for three months.

I think that the sentence imposed was manifestly inadequate. However, I agree with the Chief Justice that having regard to the paucity of the information before this Court that it would be appropriate to remit the matter for reconsideration on penalty.

The issues in this case have been clearly set out in the reasons for judgment of other members of the Court, and I will not repeat them.

I agree with the Chief Justice that for the reasons he gives, this is a proper case for the granting of leave to appeal. In the present circumstances after the hearing of full argument, it would be inappropriate for leave to be rescinded on the ground that the respondents were not heard. I also agree that Rule 94 of the Supreme Court Rules is a valid rule for the reasons given by the Chief Justice.

Prosecution appeals against sentences imposed by the Magistrates' Court

I am indebted to Lander J for his historical survey of the legislation concerning appeals to this Court from proceedings on information and from proceedings for simple or summary offences and minor indictable offences. His analysis of the history and nature of those appeals leads inevitably to the conclusion that he reaches, with which respectfully I agree, that Crown appeals against sentence from decisions of the Magistrates' Court in criminal matters are not subject to the limitations expressed in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299. In my opinion those remarks are limited to situations relating to a consideration of whether or not leave to appeal should be given where such leave is required. The original appeals to this Court in the cases now before us did not require leave. Leave was required to appeal to the Full Court from the decision of the single judge of this Court, but only because of the requirements of proviso (3)(a) to s50(1) of the Supreme Court Act 1935. Those provisions apply to any appeal from a decision of a single judge on an appeal from the Magistrates' Court in its criminal jurisdiction. As the Chief Justice has observed, leave to appeal in those cases will only be granted if a point of law or point of principle of some general importance is involved, such as that arising in this case.

It is true that the majority in Everett (at pages 299-300) said that in determining the question as to whether leave to appeal should be granted the Court should be guided by the dictum of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310, namely that:

"...an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

However, that was only adopted by the Court in Everett in respect of an application for leave to appeal by the Crown, and although the remarks of Barwick CJ in Griffiths were made in a case where leave to appeal was not required, those remarks need to be read in the context in which they appear.

One of the questions in Griffiths was whether the previous decision of the High Court in Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230 enabled an appellate court, without more, to substitute its own view of an appropriate sentence for that of the sentencing judge. The court in Griffiths decided that it did not. What was needed before a sentence could be interfered with was a demonstrated error of principle or of law in the exercise of the discretion, being an approach similar to the well-known approach to appeals against the exercise of a discretion expressed in House v The King (1936) 55 CLR 499 at 505.

Barwick CJ, before making the observation quoted above in Griffiths said (at pages 308-309): "It has been said that this Court in Whittaker v. The King [1928] HCA 28; (1928) 41 C.L.R. 230 decided that the Supreme Court sitting as a court of criminal appeal on an appeal by the Attorney-General was not restrained as appellate courts usually are to the remedy of error in what has been done in the court below, but that that court has complete and, as it is said, unfettered discretion to substitute what it thinks is the proper sentence for that which the trial judge has imposed without considering whether in truth the trial judge has erred in a matter of principle or whether he has acted unreasonably or in disregard of relevant evidence or whether in some other way he has exceeded or misused the discretion which is committed to him in the sentencing of convicted persons.

In my opinion, this Court decided no such thing in Whittaker v. The King ...

The authority of the Court of Criminal Appeal to hear and determine an appeal by the Attorney-General against the sentence imposed at the trial is, as I have said, derived exclusively from s.5D of the Criminal Appeal Act. The authority was thus given to an appellate court whose powers, derived from other sections of that Act, were exclusively appellate. Sections 6 and 8 of the Act quite clearly limit the court to an appellate function. It would indeed be strange to construe s.5D as giving to the court more than a truly appellate function. What it is claimed that Whittaker v. The King [1928] HCA 28; (1928) 41 C.L.R. 230 decided would give to the court a function more akin to original jurisdiction exercisable without reference to what has already been done and in the exercise of which the court was not constrained by those principles of appellate courts which concede to the presiding judge a discretion the exercise of which is not to be disturbed except for error.

In my opinion, s.5D does not bear such a construction. It does no more, in my opinion, than give to the Court of Criminal Appeal authority to hear and determine an appeal by the Attorney-General against the sentence erroneously imposed by a trial judge. Its reference to discretion, in my opinion, does no more than ensure that where a proper occasion arises for the allowance of an appeal, the court itself may substitute the sentence which it considers appropriate for that imposed by the trial judge. Thus, no question of remitting the matter to the trial judge for sentence in conformity with the reasons for judgment of the Court of Criminal Appeal arises. In other words, the court is not limited to acting as a court of cassation."

His Honour observed (at page 310) that the wrong interpretation of Whittaker had led to much more frequent appeals by the Attorney-General than might properly have been expected. It was in that context that he said that such appeals should be a rarity.

What the court did in Everett was to adopt that passage as being applicable to the circumstances then before the court on an application by the Crown for leave to appeal.

That same passage from the judgment of Barwick CJ in Griffiths was endorsed by Deane and McHugh JJ in Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 234. However, I do not see that endorsement as constituting a restriction on the approach of this Court to Crown appeals against sentences from Magistrates' Courts. Malvaso was dealing with the approach to be taken under s352(2) of the Criminal Law Consolidation Act 1935 to the granting of leave to the Attorney-General to appeal to the Full Court against sentence. Significantly, the High Court allowed the appeal in that case because the approach required to be taken to the granting of leave was different from the approach required to be taken to the appeal itself, and this Court had not addressed the question of leave. In endorsing the passage from Griffiths, Deane and McHugh JJ were merely taking the same approach as the High Court eventually took in Everett, some five years later, but significantly, they also added, at page 234:

"That statement of the rare circumstances in which an appeal by the Attorney-General against sentence can be justified should, in our view, be expanded by the inclusion of express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which Barwick C.J. saw as being 'error in point of principle' (see Griffiths (1977) 137 C.L.R. 293, at p.310)."

It was because this Court had not addressed the question of leave at all, and therefore had not addressed the important question described above that the proceedings in this Court were held to have miscarried. It seems to me that there is nothing in these cases which suggests that where an appeal does not require leave, the ordinary principles applicable to an appeal against the exercise of the discretion should not apply.

What about the principle of double jeopardy (see Whittaker v The Queen (supra) at 248; Everett v The Queen (supra) at 299)? I respectfully agree with Lander J that the presumption is displaced by the plain words of the section conferring the right of appeal. However, in my opinion it does have a vestigial application as illustrated by the Federal Court of Australia (Brennan, Deane and Gallop JJ) in R v Tait and Bartley (1979) 24 ALR 473 at 476. The Court in that case expressly held, in the absence of a requirement to obtain leave to appeal, that the same general principles were applicable to Crown appeals against sentence as to a defendant's appeal (ibid at 475-476). The Court went on to hold that those principles were those generally applicable to appeals against the exercise of a discretion. The Court also held, however, that a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Those considerations were illustrated in the following terms (at pages 476-477):

"It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error. The Crown has been said not to be concerned with sentence (see, eg Lawrence J in Paprika Ltd v Board of Trade [1944] 1 All ER 372 at 374; [1944] 1 KB 327 at 332), but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis - a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court."

That appears to me to be the only way that Crown appeals against sentence should be treated as differing from those of defendants, based not on any statutory requirement, but based on the role sometimes taken by the Crown in its approach to sentencing. If the traditional role of detachment from sentencing submissions is taken by the Crown, it may affect the outcome of a Crown appeal if such detachment has induced or failed to correct an otherwise appealable sentencing error.

Subject only to that qualification, I would respectfully agree with Lander J that the proper approach to be taken on Crown appeals against sentence is that applicable generally to appeals against discretion as stated in House v The King (1936) 55 CLR 499 at 505 in the passage which he has quoted. To the extent that the dictum of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213 suggests otherwise, in my opinion that dictum should not be regarded as exhaustive of the circumstances in which Crown appeals may be brought as of right. That case was an appeal by leave, and the remarks of King CJ may well be appropriate to the question of whether leave should be given. In any event, I note that the former Chief Justice's view on Crown appeals did not form part of the reasons for judgment of White and Cox JJ in that case.

Other members of the Court have referred to the standard of penalty to be imposed as a general rule on a first offender for a breach of s91(5) of the Motor Vehicles Act. The current standard is that reflected in Coombe v Douris (1987) 47 SASR 324, Eldridge v Bates [1989] SASC 1268; (1989) 51 SASR 532 and Police v Bastow & Others (Unreported, 8 May 1996, Judgment No S5595). I entertain no doubt that this Court can, in appropriate circumstances, properly establish standards of sentencing for particular offences such as was done in Eldridge v Bates, R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60 and other cases. However, the adoption of such a policy must always be subject to the qualification expressed by Cox J in R v King (1988) 48 SASR 555 at 558. The passage has been quoted in full by the Chief Justice and I will not repeat it. Whether the circumstances are appropriate for the Court to establish such a standard is another question.

In my opinion, it is inappropriate for this Court now to endorse that standard, but I arrive at that conclusion by a slightly different route from those who have reached a similar view.

The greatest justification for establishing and now maintaining the standard or normal penalty of imprisonment for a first offender for this offence is because of the element of deliberate disobedience of the law, involving as it does, in most cases, defiance of an order of a court or some other lawful authority whereby the right to drive has been removed, as a penalty for some other infringement or infringements of the law. There is, in that regard, an unhealthy element of contempt for the law and for penalties which have been lawfully and justifiably imposed. The other justifying element is that the offence is widespread, as shown by the statistics quoted by the Chief Justice. Those statistics relate only to convictions. As the Chief Justice points out, offenders are usually only apprehended through having drawn attention to themselves by means of some other driving irregularity. The offence, although undetected, may well be even more widespread than the statistics show. The inability to drive a motor vehicle can be seen as a much more severe penalty in a modern society than it was when people generally were less mobile or reliant on private transport. For many, use of a motor car is seen as essential for daily living and working, especially in areas poorly served by public transport. The temptation to drive carefully in the hope of eluding detection must, in some cases, be very great. Therefore, it is said, the element of deterrence becomes paramount, and is the primary justification for the position taken by the Court in Eldridge v Bates and for maintaining that position now.

However, the statistics show that the custodial sentence regime of Eldridge v Bates has failed to deter people from offending. The statistics quoted by the Chief Justice show that over the past three years the absolute number of convictions for this offence has been increasing, and the number as a percentage of total convictions has also been increasing.

That trend is confirmed, at least as a percentage of total serious driving offence convictions, if one goes back a further three years. The figures are as follows:

Year Number of convictions % of total serious driving offence convictions 1995 1081 15.5% 1994 1010 13.7% 1993 961 13.5% 1992 884 12.8% 1991 936 12.0% 1990 1036 12.0%

Whilst such figures must be viewed with caution, they indicate that the incidence of convictions for this offence is not reducing.

The offence of driving under the influence also carries a penalty of possible imprisonment (up to three months) for a first offence, and in proportion to the number of convictions in each year, the number of sentences of imprisonment imposed has been very small. And yet, over the same period of time the number of convictions for that offence shows a slight downward trend. The figures quoted by the Chief Justice show that that offence has, in some years, been almost as prevalent as driving whilst disqualified, and yet it cannot be said that the low rate of imprisonment has made the offence more prevalent. If anything, the figures have gone down.

The offence of driving whilst having the prescribed concentration of alcohol in the blood (s47B, Road Traffic Act) carries a range of monetary penalties and driving licence disqualifications according to the level of alcohol detected and whether it is a first or subsequent offence. None of the sentencing options include imprisonment. That, too, is an offence which, at the lower levels of prescribed concentration, may in many drivers be difficult to detect without testing, notwithstanding the acknowledged adverse effect that it may have on the ability to drive or to react to an emergency.

The same source as quoted by the Chief Justice shows that convictions under s47B of the Road Traffic Act were as follows:

Year Number % of total serious driving offence convictions 1995 4310 61.8% 1994 4820 65.3% 1993 4588 64.6% 1992 4549 66.0%

I have not quoted figures beyond 1992, because this was the first full year after the P.C.A. level was lowered from .08% to .05%. From these figures it is difficult to perceive a consistent trend. If anything, it is a downward trend, but penalties have remained the same. If all other things are equal, the variation would seem to be either a result of or reaction to varying degrees of enforcement by way of random breath testing.

However, the sentencing regime of imprisonment does not seem to have acted as a deterrent for driving whilst disqualified from holding a driver's licence. As the rate of conviction for alcohol related driving offences seems, in one case to have gone down without significant resort to available prison sentences, and in the other case, shows no sign of an upward trend without the availability of prison sentences, there must be some other explanation for this pattern of human behaviour.

The answer, in my respectful opinion, is that the level of penalty is only one aspect of deterrence. Other important aspects are community education, the effectiveness of policing and the fear of apprehension, whatever the penalty may be. The slight decrease or variation in alcohol related driving offences becomes explicable not by the nature of penalties imposed by the court or even prescribed by Parliament, but by community awareness, the effectiveness of the policing programme and the use of random breath tests. Effective deterrence therefore requires not only an appropriate sentencing policy but an effective use of education, law enforcement and detection measures. If the same resources that are devoted to random breath testing were devoted to random licence inspections, the incidence of driving whilst disqualified might well show a different trend, regardless of the penalty imposed by the courts. The appropriation of resources for that purpose is, of course, beyond the control of the courts. It is not for us to say what that expenditure should be or what savings there might be available for it if fewer people were imprisoned for this offence, or even whether such a shift in resources should take place. That is a matter of policy for others. The point is, however, that the courts cannot assume sole responsibility for deterrence in offences of this nature. The level of penalties for driving whilst disqualified for both first and subsequent offences is higher than the equivalent penalties for driving under the influence. If the level of penalties prescribed by Parliament is any guide to the seriousness of the offence, one would expect at least equivalent levels of policing and detection to be carried out for this offence as for alcohol-related offences. Only if that were done could one then say with confidence that a certain regime of sentencing should be maintained or increased in order to act as a deterrent if the number of convictions was increasing. No-one in this case has suggested that the general level of prison sentences for first offences should be increased.

Because imprisonment for this offence does not seem to have been an effective deterrent, and because it probably will not be so in the absence of complementary education, detection and apprehension policies, its continued imposition as a standard or norm for a first offender, to the exclusion of other sentencing options, must be seriously questioned. If the policy is not having its desired deterrent effect, the major reason for its continuance disappears. There appears to be no other justification for retention of the policy, particularly in the light of s11 of the Criminal Law (Sentencing) Act 1988. That section reads: "11 (1) A sentence of imprisonment must not be imposed for an offence unless, in the opinion of the court - (a) the defendant has shown a tendency to violence towards other persons; (b) the defendant is likely to commit a serious offence if allowed to go at large; (c) the defendant has previously been convicted of an offence punishable by imprisonment; or (d) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence. (2) This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence."

It is unlikely that paragraphs (a), (b) or (c) of subs(1) of that section will have any application to most of the offenders the subject of this present consideration. If imprisonment as a norm for a first offence cannot be justified on deterrent grounds, the court is then left with the requirement of s11 that a sentence of imprisonment must not be imposed unless in the opinion of the court any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence. The gravity and circumstances of the offence must then only relate to the circumstances of individual offence. Once the major policy reason for imprisonment is of questionable justification, one is driven back to the application of s11 to the particular offence together with the ordinary sentencing principles applicable by s10 of the Act. The application of such principles is further justified by the wide range of varying circumstances and effects that a sentence of imprisonment of relatively short duration can have on different individuals, and particularly when a high proportion of such offenders are young people. Mullighan J has summarised some of the more obvious consequences of maintaining such a policy. Because the circumstances of these cases can vary so greatly, as Lander J has demonstrated, this case falls into a similar category to that of Yardley v Betts (1979) 22 SASR 108, and it is not practicable or appropriate, in present circumstances, to maintain the rigidity of the policy maintained by Eldridge v Bates.

By departing from this policy, I do not underestimate the seriousness of the offence and the penalty that Parliament has prescribed for it. As has been pointed out, the offence is usually at present only detected as a result of apprehension for some other driving irregularity. It shows, in most cases, a disregard for a prior sentence or order imposed by a court or some other lawful authority. In many cases the disqualification has been ordered because the defendant has been demonstrated to be a danger to other road users. It is therefore a serious matter and is not lightly to be condoned. Courts must seriously question and not merely take at face value the excuses or explanations offered by defendants for driving when they should not. Seldom will those excuses be sufficient in themselves to justify lenient treatment.

Should this Court nevertheless offer some clear guidance to magistrates in sentencing for what is a serious and prevalent offence? I do not believe that the rigid rule of Eldridge v Bates is appropriate. One cannot overlook the level of penalties that Parliament has prescribed. In the case of the contumacious offender (in the sense described by Mullighan J) imprisonment will, in most cases, be appropriate for a first offender unless quite extraordinary personal or other circumstances demand otherwise. Beyond that I hesitate to interfere with the proper application by magistrates of their sentencing discretion within the constraints of ss10 and 11 of the Criminal Law (Sentencing) Act.

Because the offence will usually involve breach of a previous order lawfully and deservedly imposed on the offender, in sentencing for a breach of this section there is necessarily an element of contempt which is not present in many other sentences imposed by the courts. In many cases, that may warrant imprisonment. However, because it can be seen, at least in part, as punishment for contempt of the previous order, that feature of the offence may be taken into account as a "good reason" contemplated by s38 of the Criminal Law (Sentencing) Act for suspending a gaol sentence as part of the court's ensuring that its orders are properly carried out. Depending, of course, on many other factors relevant to the offence and the offender, including the seriousness of the breach, a much more flexible use of the power to suspend may well be in order. There is no reason why the good reason contemplated by s38 of the Criminal Law (Sentencing) Act should necessarily be restricted to circumstances associated with the offender if one of the features of the offence, which is not a feature of most other offences, justifies the option of suspension. Other sentencing options will need to be considered, including of course, an additional period of disqualification itself, as allowed by s168 of the Road Traffic Act 1961. That option, as Lander J has pointed out has widely differing effects within various sections of the community.

Of course, with a second or subsequent offence very different considerations will arise. I also agree that different consideration may need to be given to the circumstances of suspension of licences under s88 or s89 of the Motor Vehicles Act.

It follows that, in my opinion, Eldridge v Bates and similar cases relating to penalties for a breach of s91(5) of the Motor Vehicles Act should no longer be followed. That is not to say that at some future time and under different circumstances it may not be necessary or desirable for this Court to determine a norm or standard.

In the result, the appeals in the matters of Cadd, Hall, Illes and Vlachos should be dismissed. In the matter of Quinn, I agree with the order proposed by the Chief Justice for the reasons that he gives.