SHEEAN v POLICE No. SCGRG-98-1263 Judgment No. S187 [1999] SASC 187

Supreme Court of SA|1999-05-18|Before: Mullighan JJ, Prior J

PRIOR J I agree with Mullighan J that, on the material before the magistrate, there was no proper basis to reduce the sentence of one month's imprisonment imposed but suspended on 5 June 1997.

I also agree that the appellant's circumstances and his offending on 11 March 1998 did not call for the unusual course of non-custodial sentences for these further breaches of s91 of the Motor Vehicles Act 1959. In my view, both the driving from the beach and the later driving that day were both contumacious. I would have imposed a single custodial sentence of imprisonment for these breaches. That is not to say that the course adopted by the judge on appeal was erroneous in imposing separate sentences for these two offences.

I think the judge was entitled to intervene to maintain adequate standards of punishment for subsequent breaches of s91. If that was all to the appeal, I would have dismissed this appeal. However, the evidence of Mr Byrne cannot be overlooked, even if it fails to be fresh evidence within the proper meaning of that phrase in s42(4) of the Magistrates Court Act 1991. The fact that such material should have been available to the judge on appeal calls for the consideration of that material now. Taking note of it, I incline to the view that whilst maintaining that cumulative sentences of imprisonment for the breach of bond and subsequent breaches of s91 were appropriate and called for a total of three months imprisonment to be served, the circumstances now before this court warrant simply allowing the appeal from the single judge. The consequence is that the sentences imposed by the magistrate stand, to the present appellant's advantage against the reality that sentences of some months imprisonment should have been carried into effect or imposed.

The magistrate had no material before him to justify the orders he made when revoking the suspended sentence. The sentences imposed by the magistrate for the March 1998 offences were manifestly inadequate. The magistrate's orders were properly reviewed by this Court.

Whilst concurring in the orders proposed by Mullighan J I point out that in cases like this an executive discretion with respect to proper sentences of imprisonment should not be overlooked. Home detention is a means by which any real risk arising from the imposition of an appropriate sentence of imprisonment may be avoided.

PERRY J. I agree that the appeal should be allowed for the reasons given by Mullighan J. I agree with the orders suggested by him.

During the course of the argument on appeal, reference was made to the decision of the Full Court in Police v Cadd and Ors,[1]

and to my decision in Bates v Police.[2] As it has been suggested that there may be some tension between the two decisions, it is appropriate that I add some further comments as to that aspect of the matter.

8 Before doing so, I set out what Mullighan J said in Cadd, his comments having been accepted by the majority in that case as an appropriate statement giving "authoritative guidance" for courts of summary jurisdiction in dealing with cases of this kind.[3] The relevant passage in the judgment of Mullighan J is:[4]

"I think there should be a standard fixed .... given the seriousness of the offence and its apparent prevalence.

That standard .... 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.[5] 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." (emphasis added)

In Bates, I referred to judicial pronouncements, including those which appear in the judgments of the High Court in Witham v Holloway,[6]

from which I concluded that the word "contumacious" connoted an element of defiance. I went on to observe:[7]

"Unassisted by the authority of the decision of the Full Court in Cadd, one might have thought that to regard the penalty of imprisonment as reserved for cases involving a contumacious breach of the section, would be to add words which do not appear in the section, even when considered in conjunction with s11 of the Criminal Law (Sentencing) Act.

Be that as it may, I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress."

On reflection, I do not think that it was right to suggest that Cadd stood for the proposition that the penalty of imprisonment was "reserved for cases involving a contumacious breach of the section". It is clear from the passage in the judgment of Mullighan J to which I have referred that even where the breach could not be characterised as contumacious, the court might properly impose a custodial term of imprisonment, although in such circumstances, imprisonment would not necessarily be the "starting point".

However, those observations prompt me to draw attention to an undesirable tendency which I think has emerged since the decision of the Full Court in Cadd. The impression which I have gained from a number of appeals in such cases which since then have come to my attention, is that magistrates have seized upon the word "contumacious" as indicating in the first place that, if the circumstances of an offence can properly be characterised as such, imprisonment is more or less inevitable, but if not, imprisonment is then effectively disregarded as an appropriate sentencing option. Such an approach is clearly not what the majority of the Full Court in Cadd intended.

While it is obvious from my remarks in Bates that I would not have agreed with the decision of the majority had I been part of the Court which decided Cadd, the authority of the Full Court must be respected. More particularly, it is important that the precise formulation put forward by Mullighan J in the passage which I have cited from his judgment is strictly adhered to, and the tendency to which I have referred, resisted.

If that is done, it will follow that in a particular case, "contumacious" offending will normally be visited by an unsuspended terms of imprisonment. But in such a case it may nonetheless be appropriate to adopt a sentencing option short of a that, either where "good reason" exists to suspend a sentence of imprisonment within the meaning of s38 of the Criminal Law (Sentencing) Act, or where some other course might be appropriate, having regard to relevant sentencing principles based on other statutory provisions, or at common law.

Furthermore, even in cases not involving "contumacious" offending, it may nonetheless be appropriate to impose a custodial term of imprisonment, although as Mullighan J pointed out in Cadd in the passage from his judgment which I have cited, in such cases "the starting point need not necessarily be imprisonment".

In Bates, I was simply endeavouring to indicate my view of circumstances which might ordinarily be regarded as "contumacious" for the purposes of the principle expounded in Cadd. In that respect, I remain of the view which I expressed in Bates, namely, that the necessary element of defiance may properly be found to exist if the evidence discloses a deliberate act of driving by a person who well knows that he or she is disqualified from driving, which is a significant act of driving in the sense that it involves a more than momentary passage or episode of driving, and "is not ameliorated by reference to circumstances such as an emergency or some other form of duress". I have emphasised the words "such as" to make it plain that I was not suggesting that the particular circumstances of emergency or duress were to be taken as exhaustive. Other circumstances may well serve to ameliorate the seriousness of the passage of driving, so that it might then cease to be "contumacious" in the relevant sense.

Defiance is, after all, an attitude of mind. Its existence is hardly likely to be proved by direct evidence, as opposed to drawing an inference from the facts and circumstances surrounding the commission of the offence. My observations in Bates were intended to suggest that the circumstances which I there postulate should normally lead to the necessary inference being drawn.

I make it plain, therefore, that the observations which I made in Bates, with the qualification to which I have adverted, were not intended to detract from the authority of the approach of the majority in Cadd.

MULLIGHAN J. The appellant pleaded guilty before a learned Magistrate to two counts of driving a motor vehicle on 11th March 1998 whilst disqualified from holding or obtaining a licence to drive a motor vehicle contrary to s91 of the Motor Vehicles Act 1959. He also pleaded guilty to other offences against the Road Traffic Act 1961 committed on the same day, namely driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol, exceeding the speed limit, failing to truly answer questions asked by a police officer and driving a motor vehicle whilst a number plate light was not illuminated. His blood alcohol level at the relevant time was .09 grams in 100 millilitres of blood and his speed was 84 km/h.

He was convicted of all charges and pursuant to s47J of the Act, it was ordered that he attend a driver assessment clinic to determine whether he was suffering from alcohol dependence. The learned Magistrate was obliged to make that order in view of his prior offending which is mentioned shortly. He attended the clinic and then came before another Magistrate on 25th August 1998 for sentence. He was convicted of all of the charges. On the charge of driving with a prescribed concentration of alcohol, he was fined $1,100 and disqualified from holding or obtaining a licence to drive a motor vehicle for a period of three years. On each of the charges of driving whilst disqualified, he was convicted and sentenced to imprisonment for six days to be served concurrently. On the other charges no penalty was imposed.

By reason of this offending, the appellant was in breach of a bond entered into by him on 6th June 1997. On that occasion he was convicted, on his plea of guilty, of driving a motor vehicle on 12th January 1997 whilst disqualified. He was sentenced to imprisonment for one month which sentence was suspended upon his entering into the bond. The term of the bond was eighteen months. Upon an application by the police made on 25th August 1998 to enforce the bond, the appellant acknowledged that he was in breach of the bond and the learned Magistrate revoked the suspended sentence. However, presumably pursuant to s58(4) of the Criminal Law (Sentencing) Act 1998, he reduced the term of imprisonment of one month to a term of six days and ordered that this sentence be served concurrently with the sentences which he had imposed on the two charges of driving whilst disqualified. In consequence, the appellant had to serve a total period of six days in prison.

He was taken into custody and served that sentence. On the 8th September 1998, about a week after the sentence had been completed, the police appealed to this Court against the sentences of imprisonment of six days, the order of the learned Magistrate reducing the term of imprisonment of one month to six days and the order that the sentences of imprisonment be served concurrently on the grounds that the sentences were manifestly inadequate.

That appeal came on for hearing before a Judge of this Court. On 2nd February 1999, he allowed the appeal and reinstated the sentence of imprisonment of one month. He set aside the other sentences of imprisonment for six days and imposed a sentence of imprisonment for one month on each charge and ordered that all sentences be served cumulatively with the appellant having credit for the six days already served. The consequence is that the appellant is to return to prison and serve the new sentences. The appellant now appeals against the orders made by the learned Judge.

Before considering the arguments raised on appeal, it is necessary to say something about the circumstances of the appellant and his offending. At the time of the offences, he was aged 25 years. He is a single man and lives with his parents having left school at the age of 14 years to work as a roof tiler. In 1997 he set up his own business as a roof tiler and has continued to operate that business and with some success. He undertakes work for a builder who supplies labour to assist him in the contracts undertaken by him. He suffers a considerable disadvantage in his work by reason of not being able to drive a motor vehicle.

The appellant has a poor record of prior offending. In 1994 at the Magistrates Court at Adelaide, he admitted a breach of a bail agreement and was fined $500. In 1995, at the same Court, he was convicted of property damage and released on a bond in the sum of $1,000 to be of good behaviour for a period of two years. In the same year, and at the same Court, he was fined $50 upon being convicted of a drug offence. On the 23rd November 1995 at the Magistrates Court at Christies Beach, he was convicted on a charge of driving under the influence of alcohol, breach of a condition of a probation order and exceeding the speed limit. He was fined $800 and disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 12 months. On the 5th June 1997 at the Magistrates Court at Christies Beach, he was convicted of driving a motor vehicle with inadequate lights, driving under the influence of alcohol, refusing to give his name and address and driving whilst disqualified. He was fined $1,200 and was disqualified from obtaining or holding a licence to drive a motor vehicle for 21 months. On the charge of driving whilst disqualified, he was sentenced to imprisonment for one month which sentence was suspended as previously mentioned. On 20th March 1998 he was convicted of failing to wear a seat belt and fined $120.

I now mention the circumstances of the offences which resulted in the sentences which are the subject of this appeal.

At about 9.58 pm on the 11th March 1998, police officers observed the appellant driving on a road at Christie Downs at about 40 km/h. The light over a number plate was not operating and so they stopped the vehicle. Upon approaching the appellant, they detected a smell of liquor and required him to submit to an alcotest which was positive. He gave false christian names but his correct surname to the police. He was then taken to the Christies Beach Police Station where he gave his correct name and submitted to a breath analysis test which recorded the reading of .09. Police undertook a licence check and discovered that the appellant had been driving whilst disqualified and he was informed that he would be reported for the various offences. He was taken back to his car by the police. It may be accepted that he had locked his keys in his car and the lights had not been turned off. With the assistance of the police, he tried to unlock the vehicle but without success. He then broke into the vehicle. After the police left him, he drove again intending to take the vehicle home. Sometime later the same police officers saw him again driving the motor vehicle. On this occasion he was driving in excess of the speed limit. He submitted to an alcotest and showed a reading of .072 and was given an infringement notice. There was no other traffic on the road at the time, weather conditions were fine, the appellant was co-operative with the police and caused no embarrassment to any other person.

The learned Magistrate was informed that these offences occurred for the following reasons. The appellant had gone to the beach with friends during the day. He was aware that he should not drive and a friend drove the appellant's vehicle. During the time at the beach, he observed that this friend had consumed alcohol to excess and so he decided to drive and was subsequently stopped by the police. After the police had taken the appellant back to his car and he had broken into the vehicle, he decided to drive the car to his home. He had no wallet which, I assume, indicates that he had no money with him for other means of transport.

On the information before him, the learned Judge decided, correctly in my view, that the circumstances did not justify the reduction of the sentence of imprisonment of one month. Section 58(4) of the Criminal Law (Sentencing) Act provides that where the court revokes the suspension of a sentence of imprisonment, it may, if it considers that there are special circumstances, justifying it in doing so, reduce the term of the suspended sentence. In R v Buckman (1988) 47 SASR 303, King CJ said at p304:

"It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper".

See also Leech v Coco (1989) 51 SASR 131 and Gollan v The Queen (1992) 57 SASR 1 per King CJ at p4.

On the information that was before the learned Magistrate, there was no basis to reduce the period of imprisonment.

The learned Judge also took the view that the sentences of imprisonment for six days on each of the charges of driving whilst disqualified on the subject occasion was manifestly inadequate.

An argument was addressed to us on behalf of the appellant that his offending on this night was not contumacious, therefore the learned Magistrate was not obliged to impose sentences of imprisonment at all and if he did such short sentences were entirely appropriate: see Police v Cadd & Ors [1997] SASC 6187; (1997) 69 SASR 150. The sentencing standard discussed in that case was in the context of a first offence The appellant was not a first offender. I adhere to what I said in Cadd, at p180,

"Of course, different considerations must apply to the offender who is before the Court on this charge for a second or a 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".

There was nothing about the circumstances of the appellant or of the offences which justified the unusual course of a non-custodial sentence. Even if the second and subsequent offending was not contumacious, the imposition of custodial sentences was entirely appropriate. If the second or subsequent offending was contumacious, then a sentence of imprisonment actually to be served is all the more likely. For present purposes, I do not think it is necessary to decide whether the driving from the beach on the first occasion on the night in question was contumacious. It was certainly foolhardy but as it was a second offence and an intentional breach of the order for personal advantage, a sentence of imprisonment was fully justified. The second offence on the same night was committed soon after the appellant had been charged with the same offence a little earlier and was also committed by the appellant for his own purposes. The only sensible explanation is that he drove on this occasion in defiance of the court order and in circumstances which amount to contumacy.

The learned Judge decided that the appropriate sentence for each of these offences was imprisonment for one month and because they had been committed at different times, the sentences should be served cumulatively. He concluded that the imprisonment of one month which had earlier been suspended should be served cumulatively upon these sentences. He rejected the argument that as this was an appeal by the police, the Court on appeal should not interfere even upon concluding that the sentences were manifestly inadequate.

I do not think that the approach of the learned Judge could be regarded as erroneous if he was exercising the discretion at first instance given the information which was before him. Different minds may well reach different conclusions as to the total sentence to be served in those circumstances, but in view of the conclusions which I have reached, it is unnecessary to consider that matter further.

However, I am doubtful that even upon the information before the learned Judge, and accepting the sentences imposed by the learned Magistrate as we are manifestly inadequate, the circumstances justified intervention on an appeal by the prosecution. The learned Judge accepted that the appeal Court should not intervene except in rare and exceptional circumstances: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 and Police v Cadd & Ors [1997] SASC 6187; (1997) 69 SASR 150 per Doyle CJ at pp156-159. I shall return to this aspect of the matter shortly.

There is a new matter of considerable importance. When the appellant was released from prison, he was mentally ill. He was referred to Mr Byrne, a clinical and forensic psychologist who saw him on 12th February 1999 soon after the learned Judge allowed the appeal. Mr Byrne found the appellant to be extremely depressed. He wrote in his report that he was "very concerned about the suicidality associated with his potential imprisonment". He is of the opinion that the appellant is a vulnerable individual and that his experience in prison was traumatising. Following the sentences imposed by the learned Judge, the appellant asserted an intention to take his own life. He suffered a major depressive episode and he has some elements of an anti-social personality disorder and a borderline personality disorder. Mr Byrne concluded that the appellant is a suicidally depressed man. The suicidal tendency is a result of fear of imprisonment and associated traumatic response to previous incarceration and the imminent threat of serving a prison sentence. According to Mr Byrne, if the appellant is at large, it is unlikely that he will kill himself. If apprehended, he may well end his life in prison. He needs suitable treatment.

This condition was exacerbated by delays in this matter. The police did not appeal until after the appellant had completed his sentence. The appeal was not finally resolved until about five months after the sentence was completed.

Mr Byrne also expressed the opinion that the appellant had a serious problem with alcohol which had been manifest for a considerable period of time. This alcoholism was a cause of his offending. However, a consequence of the time spent in prison is that he has almost entirely ceased drinking. He does not drive a motor vehicle.

The learned Magistrate did not reveal in his remarks on sentencing the contents of the report from the driver assessment clinic or even that such a report had been received by him. If such a report had been received and it revealed that the appellant suffered from alcoholism, the learned Magistrate would have been obliged to disqualify him from holding or obtaining a licence to drive a motor vehicle until further order. It seems likely that the learned Magistrate would not have proceeded to sentence without such a report. The fact that the licence disqualification was not until further order suggests that at the clinic the appellant was not assessed as an alcoholic. However, I do not think this matter should detract in any way from the opinions of Mr Byrne. They are now before this Court and the respondent has not had any basis to challenge them.

Clearly the evidence from Mr Byrne reveals a very serious and relevant psychiatric condition of the appellant. It would have afforded a sound basis to impose merciful sentences.

This Court may act upon this new evidence. Section 42(4) of the Magistrates Court Act 1991 provides that in appeals of this nature, the Court may receive fresh evidence and in this case it is appropriate to do so.

What then is the significance of this evidence for present purposes? It is to be accepted that the opinions and prognosis of Mr Byrne are correct. If the appellant is again sent to prison, the likelihood of suicide is extremely high. Our attention was drawn to the observations of the Full Court in McDougall v Betts (1979) 21 SASR 424. In that case the appellant had been sentenced to imprisonment for a drink driving offence and, whilst in prison before release on bail, had suffered an aggravation of a dermatitis which was neurogenic in origin and largely induced by stress and worry. If it were to break out again in an acute form, there was a real risk that it could become chronic and incurable resulting in a quite significant disability. The condition was likely to be seriously aggravated by imprisonment or the continuing threat of imprisonment. The Full Court said, at p431:

"There must be many prisoners whose mental equanimity is disturbed, at least temporarily, by imprisonment. In such cases that is an inevitable consequence of the penal system, and cannot of itself afford a reason for not imposing a term of imprisonment when such a sentence is called for."

The Court did, however, acknowledge that there may be circumstances which would justify a different sentencing approach for that reason and went on to say, at p431:

"But when, as here, the choice is between a short term of imprisonment or a substantial fine, and there are other factors - admittedly not overlooked by the learned Special Magistrate - which can be urged in mitigation, we think, in the exercise of our discretion, that common humanity requires us to temper justice with mercy, rather than expose the appellant to the added risk of a serious permanent illness if he has to go back to gaol. It was suggested that the appropriate course in the circumstances might be to suspend the sentence of imprisonment, but that does not seem to us to be a very satisfactory legal or medical solution. In the very special circumstances of this case, arising from the new medical evidence, the appeal will be allowed for the purpose only of varying the penalty by substituting the maximum fine of $600 for the sentence of imprisonment. The period of disqualification for two years and eight months is confirmed."

In the present case the new evidence affords a sound reason for an approach to sentencing different from that taken by the learned Judge. The condition of the appellant is very serious indeed and his return to prison is life threatening. It is part of the personal circumstances of the appellant which must be considered. It is also relevant to the exercise of the discretion to interfere with a sentence on a prosecution appeal. I consider these matters in turn.

If this evidence had been in existence and available to the learned Magistrate, it would have afforded special circumstances and agitated the discretion to reduce the suspended sentence pursuant to s58(4) of the Criminal Law (Sentencing) Act. It may well have amounted to "proper grounds" under s58(3) of that Act and therefore agitated the discretion not to revoke the suspension of that sentence. It is unnecessary to consider that matter because the suspension was revoked and the appellant went to prison but the point to be made is that had that evidence been available to the learned Magistrate, it would have afforded to him a proper basis for reducing the suspended sentence.

Also, it would have afforded to him an additional basis for leniency with respect to the other sentences of imprisonment which he correctly felt obliged to impose. Clearly, he saw something in the circumstances of the appellant which excited sympathy on his part and caused him to act in an extremely merciful way. He gave no explanation of what that was in his brief remarks on sentence. All he said on that matter was:

"I take into account everything your counsel has told me and I reflect my understanding and compassion by reducing this period of imprisonment you must serve to six days. I can assure you that this compassion will never be extended to you again."

Obviously, he approached the other sentences in the same way and imposed terms of imprisonment much less than would otherwise be the case. The learned Judge found that approach to be an error in the exercise of the sentencing discretion but the mental condition of the appellant now justifies such a merciful approach. It justifies a merciful approach not only as to the length of the individual sentences but also in the exercise of the discretion that they be served concurrently. Such an approach would mitigate the very real risk of suicide and to promote rehabilitation and recovery from the mental illness.

The evidence is also relevant to the exercise of the discretion as to whether to intervene on a prosecution appeal. It is important to keep in mind the well known observations of King CJ in R v Osenkowski (1982) 30 SASR 212 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."

This approach was expressly approved in Cadd at pp158-159, p172 and at p177.

Obviously the learned Magistrate was sympathetic to the appellant and he extended leniency. Perhaps he did so because he thought that leniency at that stage may lead to rehabilitation after a short term of imprisonment. Even if he was in error in that approach, new evidence would justify a lenient approach. In my view, it affords a reason not to interfere on a prosecution appeal. After all, it must be remembered that the appellant had completed his sentence before the appeal was instituted.

Furthermore, it is well accepted that the Court should exercise special restraint in prosecution appeals against sentence: see R v Drewett (1983) 35 SASR 344 at p346, R v Hayes (19987) 29 ACrimR 452 at p468, R v Woodley, Boogna and Charles (1994) 76 ACrimR 302.

In R v Allpass (1993) 72 ACrimR 561 the Court of Criminal Appeal in New South Wales stated the principles to be applied on a prosecution appeal against sentence. They were approved and summarised in R v Warfield (1994) 34 NSWLR 200 as follows at pp209-210:

"1 A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge. An appellate court will interfere only if it is demonstrated that the sentencing judge fell into a material error of law or fact, recognising that sentencing judges have a substantial discretion in relation to the view which may be taken of the facts and circumstances of individual cases. 2 Crown appeals against sentence are relatively infrequent, because of the element of double jeopardy involved. 3 If a Crown appeal against sentence is successful, and the appellate court re-sentences the respondent, it does so in the light of all the facts and circumstances as at the time of re-sentencing. 4 When, in response to a Crown appeal, the appellate court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence which is somewhat less than the sentence that it considers should have been imposed at first instance. 5 An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."

So important is the element of double jeopardy in Crown appeals that this Court will not infrequently exercise its discretion to dismiss the appeal because of the unfairness or injustice which would otherwise be occasioned to the respondent by reason of his double jeopardy: R v Holder [1983] 3NSWLR 245 at 255-256."

See also R v Boxtel [1994] VicRp 54; (1993) 70 ACrimR 400.

I do not think these principles, and in particular those mentioned in points 4 and 5, are in any way inconsistent with the approach taken in this Court: see R v Johnstone (1987) 45 SASR 482.

In the present case, there was no conduct of the prosecution at the original sentencing hearing which is relevant. It was argued on behalf of the appellant that the prosecutor had not made any submissions contrary to the course which the learned Magistrate adopted and had thereby contributed to error by the learned Magistrate with the consequence that it would be unjust to expose the appellant to double jeopardy. The information placed before us is that the prosecutor was not given the opportunity to do so. After hearing submissions from counsel for the appellant, the learned Magistrate proceeded to sentence without seeking any submissions from the prosecution.

A similar situation arose in The Queen v Wilton (1981) 28 SASR 362. In that case it was held that only in exceptional circumstances should the prosecution be allowed to raise on appeal a contention about an aspect of sentencing which was not put in the court below. In that case the Court was concerned on a prosecution appeal with a sentence which, it was submitted, should not have been suspended and prosecution not having made the submissions to the sentencing Judge against suspension of the sentence. The Court allowed submissions to be made because the prosecution in the Court below had little or no warning that suspension was contemplated. We should take the same approach for the same reason.

In my view, Magistrates should seek submissions from the prosecution if they propose to take any course which is unusual or which involves any particular, as opposed to general, discretion such as suspending a sentence of imprisonment or, as was the case here, reducing a sentence which had been suspended and short sentences of imprisonment for multiple offences to be served concurrently. The prosecution will then have the opportunity to make submissions and the offender will be able to respond if appropriate.

The next matter which bears upon whether this Court should interfere with the sentence of the learned Magistrate is that the appellant has served the sentence imposed upon him in its entirety. Without question, he would suffer considerable hardship should he have to serve a new sentence imposed upon him over a year after his offending and about eight months after his release from prison. This is clearly a relevant matter in the exercise of the discretion to interfere: The Queen v Carngham [1978] HCA 48; (1978) 140 CLR 487 at p494. Obviously there are cases where the crime is so serious and the sentence so inadequate that the discretion must be exercised so as to return an offender who has completed the inadequate sentence to prison.: Carngham, R v Hallocoglu (1992) 29 NSWLR 67 and R v Doecke (unreported, 23rd December 1998, Jd No S7016). However, this is not such a case. The offending of the appellant did not involve the usual type of serious crime. The present mental condition of the appellant is all the more reason not to interfere with the sentences imposed by the learned Magistrate. I think support for this approach is to be found in Johnstone. That was a murder case, in the nature of a mercy killing, where it was held that a non-parole period of ten days was fixed and served. By the time the appeal by the Crown against the length of the non-parole period was heard, the offender had been at liberty after discharge from prison for six months. It was held that the non-parole period was manifestly inadequate but nonetheless the Court should not interfere as it was not necessary to do so in order to explain the proper principles and standards of sentencing. To return that offender to prison in the circumstances would "smack of cruelty": per King CJ at p486.

In my view, this is not a case where this Court needs to intervene for any of the reasons expressed in Osenkowski, particularly in view of the evidence as to the mental condition of the appellant. Sentencing standards have been established in other cases. There is no reason to suppose that the learned Magistrate had idiosyncratic views about the crime of driving whilst disqualified and the sentences, when all of the circumstances are understood, are not so disproportionate to the seriousness of the offences so as to shock the public conscience.

For these reasons I would allow the appeal and set aside the sentences of imprisonment imposed by the learned Judge and the orders made by him. I would restore the sentences imposed by the learned Magistrate.

3. See Doyle CJ 69 SASR 171.

5. (1995) 183 CLR 525 at 542-543.

[3] See Doyle CJ 69 SASR 171.

Criminal Law (Sentencing) Act 1988

Motor Vehicles Act 1959

Magistrates Court Act 1991

Criminal Law (Sentencing) Act 1988

Motor Vehicles Act 1959

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