POLICE v TREVOR HAROLD CADD, JOHN PATRICK HALL, ATTILA TIBOR ILLES, VASILIOS VLACHOS and MARK ADRIAN QUINN Nos. SCGRG-96-2306, SCGRG-96-2334, SCGRG-96-2335, SCGRG-96-2327, SCGRG-97-368 Judgment No. 6187 Number of pages - 58 Criminal law - prosecution appeals against sentences - driving offences - [1997] SASC 6187 - SASC 1997 case summary — Zoe

[16]

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.

[209]

"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."

[225]

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.

Parties

Applicant/Plaintiff:

# POLICE

Respondent/Defendant:

TREVOR HAROLD CADD, JOHN PATRICK HALL, ATTILA TIBOR ILLES, VASILIOS VLACHOS and MARK ADRIAN QUINN Nos. SCGRG-96-2306, SCGRG-96-2334, SCGRG-96-2335, SCGRG-96-2327, SCGRG-97-368 Judgment No. 6187 Number of pages - 58 Criminal law - prosecution appeals against sentences - driving offences

Legislation Cited (14)

Criminal Law (Sentencing) Act 1988

Acts Interpretation Act 1915

Magistrates Courts Act 1991

Summary Procedure Act 1921

Supreme Court Act 1935

Criminal Law Consolidation Act 1935

Road Traffic Act 1961

Criminal Law (Sentencing) Act 1988

Acts Interpretation Act 1915

Magistrates Courts Act 1991

Summary Procedure Act 1921

Supreme Court Act 1935

Criminal Law Consolidation Act 1935

Road Traffic Act 1961

Cases Cited (62)

POLICE v TREVOR HAROLD CADD, JOHN PATRICK HALL, ATTILA TIBOR ILLES, VASILIOS VLACHOS and MARK ADRIAN QUINN Nos. SCGRG-96-2306, SCGRG-96-2334, SCGRG-96-2335, SCGRG-96-2327, SCGRG-97-368 Judgment No. 6187 Number of pages - 58 Criminal law - prosecution appeals against sentences - driving offences (1997) 69 SASR 150 [1997] SASC 6187 (1 July 1997)

Criminal law - jurisdiction, practice and procedure - competence of appeal and leave to appeal - whether procedure set out in r94 of Supreme Court Rules followed in relation to leave to the Full Court from decision of a single judge - whether leave to appeal should be rescinded.Consideration of the validity of r94.03 to the extent that it provides for the application for leave to appeal to be considered privately - validity of rule rested on the particular nature of an application for leave to appeal, which permits a departure from the ordinary incidents of court procedure in the interests of efficient regulation of appellate work. Supreme Court Act, 1935 , referred to. Coulter v The Queen (1988)164 CLR 350, applied. Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, discussed.

Criminal law - jurisdiction, practice and procedure - prosecution appeals against sentences imposed by the Magistrates Court - consideration of principles in Everett - the principles stated by the High Court in Everett cannot be confined to appeals by leave or to appeals from courts not being courts of summary jurisdiction - the principles apply in relation to appeals from the Magistrates Court - consideration of the supervisory function of the Court of Criminal Appeal. Magistrates Court Act, 1991 , referred to. Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, applied. Griffiths v The Queen (1977) 137 CLR 293; R v Tait & Bartley (1979) 24 ALR 473; The Queen v Osenkowski (1982) 30 SASR 212, discussed. Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227; R v P [1992] FCA 626; (1992) 111 ALR 541; R v Longshaw (1990) 20 NSWLR 554; Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649; Knight v Birch (1992) 106 ACTR 27, considered.

Criminal law - particular offences - driving offences - sentencing - Magistrates

appeal against sentence - driving whilst disqualified - whether imprisonment appropriate - reconsideration of principles enunciated in Eldridge v Bates - principles of Sentencing Act - whether wide discretion conferred by Sentencing Act inappropriately fettered by previous decisions - setting of sentencing standards - held that it is the function of this Court to ensure that the sentencing process in individual cases is not affected by error of principle. It is also the function of this Court to ensure that sentences are neither excessive nor inadequate. The latter function is performed in two ways. First, in individual cases, by correcting a particular sentence that is considered to be excessive or inadequate. Secondly, by establishing standards of sentencing for particular offences, when the Court thinks it is appropriate.Consideration of appropriate sentencing standard for offence of driving whilst disqualified - imprisonment is appropriate for the ordinary case - individual consideration still must be given to the particular circumstances of the individual. Motor Vehicles Act, 1959 ; Sentencing Act, 1988 , referred to. Oldfield v Chute [1992] NTSC 35; (1992) 107 FLR 413; Brown v Stone (1995) Butterworths Unreported Judgments BC9502976; Sadler v Crossman (1988) 47 SASR 331; R v Buckman (1988) 47 SASR 303; Kowald v Hoile (1976) 14 SASR 314, distinguished. Eldridge v Bates [1989] SASC 1268; (1989) 51 SASR 532; Police v Bastow & Ors (unreported, 8 May 1996, Judgment No.S5595); R v Mangelsdorf ; ; R v Spiero ; R v Dube & Knowles ; Yardley v Betts ; R v King , considered.

In Griffiths v The Queen (1977) 137 CLR 293 the High Court was dealing with an appeal against sentence as of right conferred upon the Attorney-General for New South Wales. To my mind it is clear that in Everett (supra) the High Court was approving of the reasoning in Griffiths (supra), and that reasoning cannot be regarded as restricted to cases in which leave to appeal is required. I refer in particular to the judgment of Barwick CJ in Griffiths at 309-310. The judgment of Deane J and McHugh J in Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 was referred to with approval by the majority in the passage from Everett cited above. In the course of their judgment, and immediately before the passage cited in Everett and set out above, they said (at 234), referring to the judgment of Barwick CJ in Griffiths:

It is apparent from this passage that they did not restrict the application of the judgment of Barwick CJ to the consideration of leave to appeal. I mention also that in R v Tait & Bartley (1979) 24 ALR 473, where these issues were canvassed, and where a Crown appeal against sentence was said to raise "considerations which are not present in an appeal by a defendant seeking a reduction in his sentence" (at 476), the Court was again dealing with an appeal as of right and not by leave. See also R v P [1992] FCA 626; (1992) 111 ALR 541 at 549.

The approach to be taken by Courts of this State when sentencing for the offence of driving while disqualified from holding or obtaining a driver's licence is established by the judgment of King CJ in Eldridge v Bates [1989] SASC 1268; (1989) 51 SASR 532. There, in a judgment with which the other members of the Court were in substantial agreement, he said (533-534): "The court has a duty, of course, to consider alternatives to imprisonment, and the principles which I discussed, with the approval of the other members of the Full Court, in Yardley v Betts (1979) 22 SASR 108 at 112-113 are never to be ignored. There are special reasons, however, why in assessing penalties for the offence of driving under disqualification the deterrent purpose of punishment must generally predominate over other considerations. I had occasion to consider the appropriate sentence for the offence of driving while disqualified from holding or obtaining a driver's licence in Coombe v Douris (1987) 47 SASR 324. I stated my view in the following passage from the judgment in that case (at 325):

There is nothing novel about that. That is what the Court did in R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60 in relation to certain drug offences involving sale or trading. That is also what the Court did, in relation to the offence of armed robbery, in R v Spiero (1979) 22 SASR 543. In R v Dube and Knowles (1987) 46 SASR 118 the Court contemplated increasing the level of punishment for the crime of armed robbery but decided not to do so in the light of some recent legislative changes. On the other hand, in Yardley v Betts (1979) 22 SASR 108 the Court declined to establish any general policy or practice in relation to sentences for serious assaults, recognising that the circumstances of such cases varied so greatly that it was not practical or appropriate to do so.

It is the practice of appellate courts to exercise restraint when dealing with such appeals. This restraint is appropriate by reason of the purpose of prosecution appeals and "time honoured concepts of criminal administration" (Barwick CJ in R v Peel [1971] HCA 59; (1971) 125 CLR 447 at 452). The main concept has been described as "double jeopardy" in the sense that the respondent's liberty, in particular, might be put in jeopardy before the sentencing court and the appellate court. (R v Hayes (1987) 29 A Crim R 452 at 469). In some cases it will also be relevant to have regard to delay in bringing the appeal and the respondent's changed circumstances, if any, since the hearing of the matter at first instance. (See The Queen v Carngham [1978] HCA 48; (1978) 140 CLR 487). These considerations would seem to apply with equal force in the case of prosecution appeals from courts of summary jurisdiction. (Hentschke v Kellett (1988) 148 LSJS 289; Laxton v Justice (1985) 121 LSJS 286 and SA Police v Young (1993) 172 LSJS 23, a prosecution appeal against sentence in a drive whilst disqualified case). I would reject the argument put forward by the learned Solicitor-General that the existence of a prosecution appeal as of right from an acquittal and from sentence is a relevant distinguishing factor in this context. The reasons for the restrictions to which I have referred are not diminished in any way by this consideration. (see R v Woolley and Others (1994) 76 A Crim R 302 at 306).

(1997) 69 SASR 150

(1984) 155 CLR 21

(1994) 181 CLR 295

(1977) 137 CLR 293

(1979) 24 ALR 473

(1982) 30 SASR 212

(1989) 168 CLR 227

(1992) 111 ALR 541

(1990) 20 NSWLR 554

(1996) 135 ALR 649

(1992) 107 FLR 413

(1988) 47 SASR 331

(1988) 47 SASR 303

(1976) 14 SASR 314

(1989) 51 SASR 532

(1995) 66 SASR 60

(1979) 22 SASR 543

(1987) 46 SASR 118

(1979) 22 SASR 108

(1988) 48 SASR 557

(1984) 155 CLR 21

(1988) 164 CLR 350

(1977) 137 CLR 293

(1992) 111 ALR 541

(1982) 30 SASR 212

(1989) 51 SASR 532

(1987) 47 SASR 324

(1988) 47 SASR 331

(1995) 66 SASR 60

(1979) 22 SASR 108

(1976) 14 SASR 314

(1971) 125 CLR 447

(1978) 140 CLR 487

(1989) 51 SASR 532

(1979) 22 SASR 543

(1994) 181 CLR 293

(1979) 21 SASR 424

(1988) 48 SASR 555

(1975) 11 SASR 114

(1995) 183 CLR 525

(1974) 8 SASR 465

(1976) 13 SASR 516

(1977) 17 SASR 214

(1935) 53 CLR 220

(1984) 155 CLR 21

(1976) 135 CLR 616

(1984) 36 SASR 111

(1979) 20 SASR 156

(1928) 41 CLR 230

(1936) 55 CLR 499

(1978) 38 FLR 397

(1936) 55 CLR 499

(1939) 51 SASR 532

POLICE v TREVOR HAROLD CADD, JOHN PATRICK HALL, ATTILA TIBOR ILLES, VASILIOS VLACHOS and MARK ADRIAN QUINN Nos. SCGRG-96-2306, SCGRG-96-2334, SCGRG-96-2335, SCGRG-96-2327, SCGRG-97-368 Judgment No. 6187 Number of pages - 58 Criminal law - prosecution appeals against sentences - driving offences

At a glance

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Judgment (233 paragraphs)

Parties

Legislation Cited (14)

Cases Cited (62)