GARY WAYNE VEARING v COMMISSIONER OF POLICE [2024] SASC 34

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE STRATTON- SMITH) MCPAR-21-9738 Appellant: GARY WAYNE VEARING Counsel: MR M SEDDON - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: COMMISSIONER OF POLICE Counsel: MS C NOLAN - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 15/02/2024 File No/s: SCCRM-23-038158 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. VEARING v COMMISSIONER OF POLICE [2024] SASC 34 Judgment of the Honourable Justice Blue 15 March 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT – GROUNDS MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY The appellant appeals against a sentencing disposition under Part 8A Division 3A of the Criminal Law Consolidation Act 1935 (SA) in respect of a charge of driving unauthorised a motor vehicle having been disqualified from holding or obtaining a licence due to a drug driving offence contrary to section 74(2a)(c) of the Motor Vehicles Act 1959 (SA). A Magistrate released the appellant on a licence under Division 3A for a period of 18 months. The appellant appeals on three grounds: 1 the Magistrate erred by imposing a limiting term by reference to the period of the supervised good behaviour bond that he would have imposed if the appellant had been guilty rather than the period of imprisonment he would have imposed; 2 the sentencing disposition was manifestly excessive; 3 the Magistrate erred by imposing a condition of the order that prevented the appellant from driving a motor vehicle for 18 months. Held (dismissing the appeal): -- 1 of 15 -- 1 The requirement to fix a limiting term, which applies to a disposition under Division 4, does not apply to a disposition under Division 3A (at [62]). 2 Release on licence for 18 months was not manifestly excessive (at [69]). 3 The Magistrate did not err by imposing a condition preventing the appellant from driving a motor vehicle for 18 months (at [83]). 4 Appeal dismissed (at [85]). Criminal Law Consolidation Act 1935 (SA) s 269NA, s 269NB, s 269ND, s 269NDA, s 269NI, s 269NM, s 269O, s 269P, s 269Q, s 269T and s 269U.; Motor Vehicles Act 1959 (SA) ss 74(2a)(c) and ss 74(5)(a); Sentencing Act 2017 (SA) s 44, s 69, s 71, s 79, s 81, and s 96., referred to. Question of Law Reserved (No 1) (1997) 70 SASR 251, applied. Bajon v Police [2018] SASC 176, considered. -- 2 of 15 -- VEARING v COMMISSIONER OF POLICE [2024] SASC 34 Criminal Appeal: Single Judge 1 BLUE J: Gary Vearing appeals against a sentencing disposition under Part 8A Division 3A of the Criminal Law Consolidation Act 1935 (SA) (the Act) in respect of a charge of driving unauthorised a motor vehicle having been disqualified from holding or obtaining a licence due to a drug driving offence.1 2 A Magistrate released Mr Vearing on a licence under Division 3A for a period of 18 months.2 3 Mr Vearing appeals on three grounds: 1 the Magistrate erred by imposing a limiting term by reference to the period of the supervised good behaviour bond that he would have imposed if the appellant had been guilty rather than the period of imprisonment he would have imposed;3 2 the sentencing disposition was manifestly excessive; 4 and 3 the Magistrate erred by imposing a condition of the order that prevented Mr Vearing from driving a motor vehicle for 18 months.5 Background 4 On 10 September 2021 Mr Vearing was observed by police driving a motor vehicle along John Rice Avenue Elizabeth Vale and then turning right at a no- right-turn intersection into the Elizabeth Vale Shopping Centre car park. 5 Mr Vearing did not hold a driver’s licence. He had been disqualified from holding a driver’s licence on 27 November 2018 as a result of his conviction for a drug driving offence. He last held a licence on 16 May 2011. 6 Mr Vearing told police that he believed that his driver’s licence was expired, that he has issues remembering information and that he struggles to remember the road rules so as to be able to re-sit his learner’s permit test. 7 The maximum penalty for a breach of section 74(2a)(c) of the Motor Vehicles Act 1959 (SA) is imprisonment for one year or a fine of $5,000. On conviction there is mandatory disqualification for at least three years. 1 Motor Vehicles Act 1959 (SA) s 74(2a)(c). 2 Pursuant to Criminal Law Consolidation Act 1935 (SA) s 269NB(2)(c). 3 Ground 2 of the Grounds of Appeal 4 Ground 1 of the Grounds of Appeal. 5 Ground 3 of the Grounds of Appeal. -- 3 of 15 -- [2024] SASC 34 Blue J 2 8 In May 2023 the Forensic Community Mental Health Service provided a report to the Magistrates Court in relation to Mr Vearing’s earlier release on licence under Division 4 in June 2021 with a limiting term of 27 months. The report included statements that Mr Vearing posed a significant challenge to engage in the community; he had not attended psychiatric appointments for annual reports; he appeared to evade clinicians when they attempted to review him at home; he had breached his licence conditions including admitting to using methamphetamine and continuing to drive although disqualified; and he exhibited a lack of interest in changing or improving his lifestyle by refusing to seek access to NDIS, or drug and alcohol counselling. This report was ultimately produced to the Magistrate who made the sentencing disposition. 9 Mr Vearing had an extensive history of driving unlicensed or disqualified offences and other offences. They included the following matters. 10 In 1996 Mr Vearing was convicted of driving in a reckless or dangerous manner and exceeding the speed limit by more than 45 kilometres per hour. He was fined and disqualified from holding a driver’s licence for 15 months. 11 In 2001 Mr Vearing was convicted of driving while disqualified on two separate occasions. 12 In 2007 Mr Vearing was convicted of two counts of driving while disqualified and various other offences, for which he was sentenced to imprisonment for 14 days and disqualified from holding a driver’s licence for 14 days. 13 In 2015 Mr Vearing was convicted of driving dangerously to escape police pursuit and driving a motor vehicle without being authorised. He was sentenced to imprisonment for three months and six days and disqualified from holding a driver’s licence for two years. 14 In 2016 the objective elements were found proved in respect of two counts of driving dangerously to escape police pursuit and two counts of driving a motor vehicle without being authorised. Mr Vearing was accordingly committed to detention under Division 4, with a limiting term fixed at six months. 15 In 2017 Mr Vearing was convicted of driving dangerously to escape police pursuit and driving a motor vehicle under disqualification and sentenced to imprisonment for three months and two weeks. 16 In November 2018 Mr Vearing was convicted of driving a motor vehicle with methamphetamine in his fluid or blood, for which he was fined and disqualified from holding or obtaining a driver’s licence for 12 months. 17 Also in November 2018, the objective elements were found proved in respect of driving a motor vehicle under disqualification and Mr Vearing was released on licence under Division 3A with a term of eight months. -- 4 of 15 -- [2024] SASC 34 Judgment Author 3 18 In June 2021 the objective elements were found proved in respect of two counts of driving a motor vehicle without being authorised after a drug driving disqualification and three counts of driving a motor vehicle under disqualification. Mr Vearing was released on licence under Division 3A with a term of two years and three months. 19 Mr Vearing also has various convictions for theft, unlawful possession, drug offences, speeding, driving an unregistered and uninsured motor vehicle and breaching a domestic violence restraining order. He also has a prior conviction for carrying an offensive weapon and failing to comply with a bail agreement. Magistrate’s remarks 20 The Magistrate summarised the facts and referred to the May 2023 report. The Magistrate raised the concern that “people who supervised” Mr Vearing were worried about his getting in a car when he was not supposed to. The Magistrate referred to the fact that the most important factor was protection of the public. 21 The Magistrate referred to Mr Vearing’s history and said: With that history, it is possible that this charge could attract imprisonment or at the very least a bond, possibly or probably with some supervision to help you deal with the drug use in the past. 22 The Magistrate determined to release Mr Vearing on licence and identified the conditions. One of the conditions was that Mr Vearing not be allowed to drive any class of motor vehicle for 18 months. 23 Mr Vearing’s counsel enquired whether the Magistrate would be minded to have that condition allow Mr Vearing to drive if he were to be properly licensed. Counsel referred to the licence disqualification that would ordinarily be imposed if someone had pleaded guilty. The Magistrate responded: He is off the road for half of that length. I have chosen 18 months because of what I consider might be an appropriate length of the bond, some of or all of which would be subject to supervision and I come to that conclusion based on what I read in the May report and Mr Vearing’s less than adequate performance. I think 18 months is appropriate and that is not to punish Mr Vearing but Parliament has seen fit partly to punish but also to protect the community to impose a licence disqualification of three years, ordinarily for this offence, so that is the length. The legislative regime 24 Part 8A was inserted into the Act with effect on 2 March 1996.6 It provides for determination whether a defendant was mentally incompetent to commit, or is mentally unfit to plead to, a charged offence. 6 Criminal Law Consolidation (Mental Impairment) Amendment Act 1995 (SA). -- 5 of 15 -- [2024] SASC 34 Blue J 4 25 When first enacted, sections 269F A(4), 269F B(3), 269G A(2) and 269F B(3) provided that, on positive findings of mental incompetence and the objective elements, the court was to make findings accordingly to find that the defendant was not guilty of the offence and declare the defendant to be liable to supervision under Division 4. 26 When first enacted, sections 269M A(3)(a), 269M B(2), 269N A(2) and 269N B(3) provided that, on positive findings of unfitness to plead and the objective elements, the court was to make findings accordingly and declare the defendant to be liable to supervision under Division 4. Division 4 dispositive orders 27 Section 269O(1) requires that a court, on declaring a defendant liable to supervision, make one of three dispositive orders: 1 release the defendant unconditionally; 2 release the defendant on licence; or 3 commit the defendant to detention. 28 If the court releases the defendant unconditionally, that is the end of the matter. 29 If the court releases the defendant on licence or commits the defendant to detention (collectively a supervision order), the court is required to fix a “limiting term”7 and at the end of the limiting term the supervision order lapses.8 30 If the court commits the defendant to detention, at any time during the limiting term the court may release the defendant on licence (or indeed release the defendant unconditionally). Similarly, if the court releases the defendant on licence, at any time during the limiting term the court may commit the defendant to detention, vary the licence conditions or release the defendant unconditionally.9 Accordingly, the initial dispositive order is in one sense an interim order having effect, but subject to review, during the limiting term. 31 In order to fix the limiting term (or indeed decide whether to make a supervision order or release the defendant unconditionally), the court is required to determine whether, on a finding of guilt and ignoring the defendant’s mental impairment, the defendant would have been sentenced to imprisonment, supervision, or some other sentence. 7 Criminal Law Consolidation Act 1935 (SA) s 269O(2). 8 Criminal Law Consolidation Act 1935 (SA) s 269O(3). 9 Criminal Law Consolidation Act 1935 (SA) s 269P and s 269U. -- 6 of 15 -- [2024] SASC 34 Judgment Author 5 32 If the defendant would have been sentenced to imprisonment (whether or not to be served in a prison,10 on home detention,11 under intensive correction12 or suspended13), the limiting term must be equivalent to the period (head sentence) of imprisonment on a finding of guilt ignoring mental impairment (hypothetical imprisonment).14 The limiting term is required to be fixed by reference to hypothetical imprisonment, even if the court decides to release the defendant on licence. 33 If the defendant would have been the subject of a good behaviour bond with supervision, the limiting term must be equivalent to the period of supervision under the bond on a finding of guilt ignoring mental impairment (hypothetical supervision).15 The limiting term is required to be fixed by reference to hypothetical supervision even if the court decides to commit the defendant to detention. 34 If the defendant would absent mental impairment have been sentenced to neither imprisonment nor supervision (such as a fine, community service or an unsupervised bond), the defendant must be released unconditionally.16 35 It appears somewhat incongruous that the limiting term is set by reference to hypothetical imprisonment absent mental impairment when the court releases the defendant on licence or that the limiting term is set by reference to hypothetical supervision when the court commits the defendant to detention. It is true that, over the course of the limiting term, initial detention might be varied to release on licence and vice versa. Nevertheless, the apparent incongruity (coupled with the fact that the legislative regime has now been in place for 28 years) warrants review by the legislature to determine whether this aspect of the regime should be preserved or varied. 36 A court cannot make a dispositive order until the court has received a psychiatric report, or equivalent, arranged by the Minister under section 269Q. The court must also receive a report under section 269R setting out the views of any victim or next of kin and the defendant’s next of kin, and cannot release a defendant (unconditionally or on licence) until the court has received a psychiatric report, or equivalent, under section 269T(2)(a). 37 If the court determines to release the defendant on licence, the court may impose such conditions as it thinks fit. It is ordinarily mandatory that the conditions 10 Sentencing Act 2017 (SA) s 44. 11 Sentencing Act 2017 (SA) s 69 and 71. 12 Sentencing Act 2017 (SA) s 79 and 81 13 Sentencing Act 2017 (SA) s 96. 14 Criminal Law Consolidation Act 1935 (SA) sub-s 269O(2); Question of Law Reserved (No 1) (1997) 70 SASR 251 at 265-266 per Duggan J (with whom Matheson and Nyland JJ agreed). 15 Criminal Law Consolidation Act 1935 (SA) sub-s 269O(2); Question of Law Reserved (No 1) (1997) 70 SASR 251 at 266 per Duggan J (with whom Matheson and Nyland JJ agreed). 16 Question of Law Reserved (No 1) (1997) 70 SASR 251 at 266 per Duggan J (with whom Matheson and Nyland JJ agreed). -- 7 of 15 -- [2024] SASC 34 Blue J 6 include prohibition of possessing a firearm or ammunition and a requirement to submit to gunshot residue tests.17 38 The paramount consideration in determining whether to release a defendant or the conditions of a licence is protection of the safety of the community.18 This outweighs the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum.19 Division 3A dispositive orders 39 Division 3A was inserted into Part 8A of the Act with effect on 19 November 2017.20 40 Division 3A applies to defendants in respect of whom the objective elements of summary or minor indictable offences have been established but are not guilty due to mental incompetence or are mentally unfit to stand trial.21 41 Subsection 269NB(1) empowers a court, when Division 3A applies, to make one of three dispositive orders:22 1 dismiss the charge and release the defendant unconditionally; 2 release the defendant on licence; or 3 declare the defendant liable to supervision under Division 4. 42 The first type of dispositive order is the same as an unconditional release under Division 4. The second type of dispositive order is the same (subject to the question of its period addressed under Ground 2 below) as a release on licence under Division 4. 43 The court has no power under Division 3A to commit the defendant to detention. However, if the court considers that detention is appropriate, the court has power to declare the defendant liable to supervision under Division 4 and then to make an order committing the defendant to detention under Division 4. 44 Like a release on licence under Division 4, if the court releases the defendant on licence, at any subsequent time during the limiting term the court may declare the defendant liable to supervision under Division 4 and then commit the defendant to detention under that Division, vary the licence conditions or release the defendant unconditionally.23 Accordingly, an initial dispositive order by way of 17 Criminal Law Consolidation Act 1935 (SA) ss 269O(1a) and 269O(1b). 18 Criminal Law Consolidation Act 1935 (SA) s 269NI(1). 19 Criminal Law Consolidation Act 1935 (SA) s 269NI(2). 20 Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA). 21 Criminal Law Consolidation Act 1935 (SA) s 269NM(1). 22 Power is also conferred to adjourn the proceeding or remand the defendant on bail, but these are procedural orders. Power is also conferred to make any other order that the Court thinks fit but this is unlikely to confer a substantive dispositive power. 23 Criminal Law Consolidation Act 1935 (SA) ss 269ND and 269NDA. -- 8 of 15 -- [2024] SASC 34 Judgment Author 7 release on licence is in one sense an interim order having effect, but subject to review, during the licence term. 45 Like a release on licence under Division 4, if the court determines to release the defendant on licence, the court may impose such conditions as it thinks fit. It is ordinarily mandatory that the conditions include prohibition of possessing a firearm or ammunition and a requirement to submit to gunshot residue tests.24 46 Like a release on licence under Division 4, the paramount consideration in determining whether to release a defendant or the conditions of a licence is protecting the safety of the community.25 This outweighs the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum.26 47 When Division 3A was inserted, sections 269F B(3), 269G B(3)(a), 269M B(2) and 269N B(3) were amended to make the requirement to declare the defendant liable to supervision under Division 4 subject to Division 3A. This had the effect that, if a court decides to proceed under Division 3A, the defendant is not declared liable to supervision. 48 There are essentially four differences between Division 3A and Division 4: 1 Division 3A is not available in respect of a major indictable charge; 2 Detention is not available under Division 3A (but if called for can be imposed under Division 4); 3 Division 3A contains no express provision27 for a limiting term but contains a statutory limit of five years for release on licence; and 4 Division 3A does not require section 269Q, 269R or 269U reports. Implicit limiting term 49 Ground 2 is that the Magistrate erred by imposing a licence by reference to the period of the supervised good behaviour bond that he would have imposed if Mr Vearing had been guilty rather than the period of imprisonment he would have imposed. 50 Mr Vearing contends that it is implicit in Part 8A that the period of a licence release under Division 3A must, like the limiting term applying to a licence release under Division 4, be fixed by reference to the period of hypothetical imprisonment or hypothetical supervision (as applicable) that would have been imposed but for 24 Criminal Law Consolidation Act 1935 (SA) ss 269NB(4) and 269NB(5). 25 Criminal Law Consolidation Act 1935 (SA) s 269NA(1). 26 Criminal Law Consolidation Act 1935 (SA) s 269NA(2). 27 It being in dispute on this appeal whether this is implicitly required. -- 9 of 15 -- [2024] SASC 34 Blue J 8 the defendant’s mental impairment. The Commissioner takes issue with that construction of Part 8A. 51 Section 269O, which appears in Division 4, relevantly provides: 269O—Supervision orders (1) The court by which a defendant is declared to be liable to supervision under this Subdivision may— (a) release the defendant unconditionally; or (b) make an order (a supervision order)— (i) committing the defendant to detention under this Subdivision; or (ii) releasing the defendant on licence … (2) If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.1 (3) At the end of the limiting term, a supervision order in force against the defendant under this Division lapses. Note— 1 The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment. 52 Subsection 269O(2), by its terms, does not apply to a disposition under Division 3A. Not only is section 269O located in Division 4 but it also contains a precondition to its application, namely that the defendant has been declared liable to supervision under Division 4. That precondition is not satisfied when the court proceeds under Division 3A. 53 Division 3A contains no provision for a limiting term. The only reference to a term is the reference to the period of the licence, which must not exceed five years. 54 Subsection 269NB(2) provides: (2) The court may— (a) dismiss the charge and release the defendant unconditionally; or (b) declare the defendant to be liable to supervision under Division 4 Subdivision 2; or -- 10 of 15 -- [2024] SASC 34 Judgment Author 9 (c) make an order (a Division 3A order) releasing the defendant on licence for the period (which must not exceed 5 years) specified by the court in the licence; or (d) adjourn the proceedings; or (e) remand the defendant on bail; or (f) make any other order that the court thinks fit. 55 Starting with the text of section 269NB(2)(c), it contains no provision for a limiting term or reference to subsection 269O(2). The text itself contains no suggestion that the requirements in relation to a limiting term are imported into the provision. Although in theory the limitation of the licence period to a maximum of five years could impose a ceiling on a limiting term derived from subsection 269O(2), the fact that the legislature directed its attention in section 269NB(2)(c) to the period of the licence without reference to the limiting term concept suggests that the concept was not imported into the provision. 56 Turning to the context of section 269NB(2)(c) within section 269NB, the section (and Division 3A) only applies to summary and minor indictable offences, in contrast with Division 4 which applies to all offences. This suggests that Division 3A is intended to deal with less serious offences. It appears incongruous that a licence term under Division 3A can exceed the licence term permissible under Division 4. Nevertheless, if the legislature had intended to apply the limiting term regime to Division 3A, it is incomprehensible why it would not have done so explicitly. 57 Considering the context of section 269NB within Division 3A does not point one way or the other, other than the absence of any reference to a limiting term. 58 Turning to the evident purpose of section 269NB(2)(c) and Division 3A generally, it is to provide for a simpler process (without the necessity for external reports) in relation to less serious offences where detention of the defendant is not necessary to protect the safety of the community. 59 This evident purpose, derived from the provisions of Division 3A, is confirmed by the Second Reading Speech in respect of the Bill that became the amending Act that introduced Division 3A into Part 8A. The Attorney-General, the Honourable John Rau, relevantly said: The Bill inserts provisions into the Act which are designed to provide more flexibility for courts of summary jurisdiction, as per a recommendation of the Council. The provisions inserted into Division 3A of Part 8A provide additional dispositions for people found not guilty due to mental incompetence. These provisions only apply to courts of summary jurisdiction and apply where it has been found the defendant is mentally incompetent to commit the offence or mentally unfit to stand trial, but the court considers it appropriate to utilise these more flexible dispositions. -- 11 of 15 -- [2024] SASC 34 Blue J 10 In these circumstances the court may dismiss the charge and discharge the defendant unconditionally, adjourn the proceedings, remand the defendant on bail or make any other order the court considers appropriate. The provisions also provide for a court of summary jurisdiction to make a Division 3A order releasing a defendant on a licence for a period, which must not exceed 5 years, specified on the licence. This order is designed to be imposed for less serious offences and provides a less onerous avenue for disposition. The use of the mental impairment defence has become much more common in summary proceedings, and the intention of this reform is to provide flexibility to Magistrates to deal with defendants through flexible remedies. 28 60 Again, it appears incongruous that a licence term under Division 3A can exceed the licence term permissible under Division 4. However, it would also appear incongruous if the term of the licence under which a defendant is released under Division 3A were required to be fixed by reference to the period of hypothetical imprisonment in circumstances in which the court cannot commit the defendant to detention under that Division. 61 The parties do not cite any direct authority on the issue of construction whether the concept of a limiting term is imported into Division 3A. In Bajon v Police29 the defendant was charged with driving in a culpably negligent manner, failing to stop after a collision and driving while disqualified. A Magistrate made an order under Division 4 that he be detained for eight months. The Chief Justice allowed the defendant’s appeal and substituted an order under Division 3A releasing him on licence for three years. It does not appear that it was argued by either party that the concept of a limiting term was imported into Division 3A and hence the decision is not authority on the point. However, the reasons of the Chief Justice are inconsistent with a limiting term being imported. The Chief Justice said: I would exercise the powers under Division 3A liable to supervision pursuant to s 269 and release Mr Bajon on a licence under that Division for the following reasons: the protection afforded to the community by an order for detention pursuant to s 269O of the CLCA is for a short time only because of the need to impose a limiting term. It is in part because of the time-limited nature of a supervision order in the case of summary and minor indictable offences that Division 3A is a useful and innovative addition to the order which a court can make upon a finding of incompetence under Part 8A.30 62 Having regard to the text, context and evident purpose of section 269NB(2)(c), the length of a licence under which a defendant is released under Division 3A is not limited by the legislation to the limiting term that would have been fixed under Division 4. 63 This ground of appeal is not established. 28 South Australia, Parliamentary Debates, House of Assembly, 4 August 2016, 6641 (John Rau, Attorney-General). 29 [2018] SASC 176. 30 At [21]. -- 12 of 15 -- [2024] SASC 34 Judgment Author 11 Manifest excess 64 Ground 1 is that the sentencing disposition was manifestly excessive. 65 Mr Vearing contends that release on licence for 18 months was manifestly excessive, having regard to the facts that the offence is a summary offence punishable by a fine or imprisonment for not more than one year; he cooperated with police upon being pulled over and made admissions; and the driving did not involve any serious allegations of dangerous driving or other factually aggravating circumstances. He contends that the circumstances called for unconditional release or at least release on licence for a substantially shorter term. 66 The Commissioner points to the fact that Mr Vearing was pulled over by police because he disobeyed a no-right-turn sign at an intersection; he told police that he has issues remembering information and struggles to remember the road rules; and he has an extensive history of driving offences, driving unauthorised and driving while disqualified offences and other offences. 67 Mr Vearing points to the fact that, under sections 269ND and 269NDA, if he breaches a term of the licence, he could be declared liable to supervision under Division 4 and then committed to detention for most of the 18-month licence term, which would exceed the maximum 12-month imprisonment penalty that could be imposed in respect of a non-mentally impaired defendant. 68 In general terms, I accept the submissions by the Commissioner. The paramount consideration under section 269NA is protection of the safety of the community. Mr Vearing committed a potentially serious traffic offence when he disobeyed a no-right-turn sign. He admitted to the police that he struggles to remember the road rules. He has prior convictions for traffic offences, including driving with methamphetamine in fluid or blood, speeding and numerous driving dangerously to escape police pursuit offences. He has prior convictions for dishonesty and breach of an intervention order. He has numerous convictions for driving while disqualified and driving without being authorised. The report from the Forensic Community Mental Health Service in May 2023, summarised above, was unfavourable. 69 It was necessary for the protection of the safety of the community that Mr Vearing be subject to licence terms and the licence be imposed for a relatively lengthy term. A term of 18 months was not manifestly excessive. 70 Although it is possible that Mr Vearing might be committed to detention if he breaches a term of the licence, any such detention would only be imposed if necessary to protect the safety of the community and further, the detention would be subject to ongoing review. Absent extraordinary circumstances, it is very unlikely that Mr Vearing would be committed to detention for anything approaching 12 months. 71 This ground of appeal is not established. -- 13 of 15 -- [2024] SASC 34 Blue J 12 72 Mr Vearing refers to the fact that the Magistrate did not make a definitive determination whether hypothetical imprisonment or hypothetical supervision would have been imposed absent mental impairment or the length of hypothetical supervision that would have been so imposed. Leaving aside Ground 2, which I have already addressed, it is not a ground of appeal that the Magistrate made a process error in not making such definitive determinations. 73 Given the fact that the concept of a limiting term is not imported into Division 3A, it was not necessary for the Magistrate to determine whether hypothetical imprisonment would have been imposed absent mental impairment. 74 However, given that Division 3A provides an alternative regime to Division 4 in respect of less serious offences, ordinarily it may be expected that the length of a licence under Division 3A will not exceed the length of a licence under Division 4 in a case of hypothetical supervision, which in turn would be constrained by the length of a supervised bond. It is conceivable that a longer length of licence under Division 3A might be required to protect the safety of the community but that would not be the case as a matter of course. 75 In those circumstances, a relevant consideration to which a sentencing judicial officer should have regard is the length of a supervised bond that would have been imposed absent mental impairment. 76 In the present case, in the passage reproduced at [21] above, the Magistrate said that, absent mental impairment, the charge would have attracted at the very least a bond. Although the Magistrate described the prospect of supervision under the bond as “possibly or probably”, given that the remarks were ex tempore, the Magistrate should be understood as having corrected his initial reference to “possibly” so as to be “probably”. Given the seriousness of the offending, and Mr Vearing’s antecedents, a supervised good behaviour bond of at least 18 months was called for in the absence of mental impairment. There would be no reason to order that the supervision cease before the end of the bond. 77 In conclusion, the Magistrate ought to have explicitly identified the length of the supervised bond that would have been imposed absent mental impairment. However, as this is not a ground of appeal and in any event a supervised bond of at least 18 months was inevitable, there is no warrant to set aside the disposition by the Magistrate. 78 Mr Vearing also refers to the fact that the Magistrate did not include as a term of the licence that Mr Vearing be under supervision. This also is not a ground of appeal. In the absence of consent by Mr Vearing, it cannot now be added as a condition on appeal. -- 14 of 15 -- [2024] SASC 34 Judgment Author 13 Licence condition 79 Ground 3 is that the Magistrate erred by imposing a condition preventing Mr Vearing from driving a motor vehicle for 18 months. 80 Mr Vearing contends that the Magistrate’s remarks reproduced at [23] above indicate that the Magistrate imposed this condition (partly) to punish him rather than to protect the safety of the community. He further contends that, in circumstances where the issue was his driving without a licence rather than the manner of his driving, prohibiting him from driving even if licensed was not needed for the protection of the safety of the community. 81 Mr Vearing last held a driver’s licence in 2011. Due to his disqualification in 2018 as a result of a drug driving offence and the fact that he has not held a licence for at least five years, in order to obtain a driver’s licence he would be required to pass a learner’s theory test, a hazard perception test and a practical driving test. He contends that, if he were to pass all three tests, he would not be a danger to the safety of the community. 82 In relation to the Magistrate’s remarks reproduced at [23] above where the Magistrate referred to Parliament partly punishing and partly protecting the community by imposing a licence disqualification of three years, the Magistrate was referring to section 74(5)(a) of the Motor Vehicles Act 1959 (SA) which provides that, where a court convicts a person of, amongst others, an offence against section 74(2a)(c), the court must order that the person be disqualified from holding or obtaining a driver’s licence for at least three years. It was common ground that that provision did not apply to Mr Vearing because he had not been convicted. The Magistrate was referring to the hypothetical position absent mental impairment, and was not referring to the position of Mr Vearing under a release on licence. 83 In relation to objective assessment, as observed above Mr Vearing had numerous prior convictions for driving dangerously as well as a conviction for driving with methylamphetamine in blood or fluid. The offending that was the subject of the disposition itself involved a breach of a no-turn-right sign. It was necessary for the protection of the safety of the community that Mr Vearing be prohibited from driving for the period of the licence. 84 This ground of appeal is not established. Conclusion 85 The grounds of appeal are not established. 86 I will hear the parties on the disposition of the appeal, including as to costs. -- 15 of 15 --