KYM DERWYN BARNES v COMMISSIONER OF POLICE (SA) [2024] SASC 39

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE J MARTIN) MCCRM-23-012404, MCCRM-23-013667 Applicant: KYM DERWYN BARNES Counsel: MR S LAIDLAW - Solicitor: MATTHEW MITCHELL SOLICITORS Respondent: COMMISSIONER OF POLICE (SA) Counsel: MS I KIMBER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 13/03/2024 File No/s: SCCRM-23-039142 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. BARNES v POLICE [2024] SASC 39 Judgment of The Honourable Justice McDonald 15 March 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS This is an appeal against sentences imposed by the Magistrates Court following the appellant’s conviction of two separate offences of driving a motor vehicle whilst disqualified or suspended. The Magistrate imposed one sentence for each offence to be served cumulatively, resulting in a head sentence of two months and 12 days which was suspended upon the appellant entering into a bond to be of good behaviour for a period of three years. The appellant appeals this sentence on the basis that the Magistrate erred on three accounts: 1. That the sentence imposed was manifestly excessive; 2. That the Magistrate erred in failing to allow any credit for time spent by the appellant in custody, and; 3 That the Magistrate failed to take into account time spent by the appellant on home detention bail. Prior to the hearing of the appeal, counsel for the respondent advised the Court that two process errors had been identified, namely; -- 1 of 10 -- 1. That the Magistrate had failed to take into account time spent in custody by the appellant (conceding Ground 2), and; 2. That the Magistrate had erred in deciding to suspend the sentence prior to determining the appropriate sentence to be imposed. Held, allowing the appeal, setting aside the sentence of the Magistrate and re-sentencing the appellant: 1. The Magistrate erred in not taking into account the appellant’s time spent in custody. 2. It is appropriate to re-sentence the appellant to a period of imprisonment of one month, taking into account time spent in custody and on home detention conditions. This sentence will be suspended upon the appellant entering into a bond to be of good behaviour for a period of 12 months. Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1; Sentencing Act 2017 (SA) s 44(2), s 96(1); Motor Vehicles Act 1959 (SA) s 91(5a), referred to. House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; R v Wilton (1981) 28 SASR 362; Lowndes v The Queen (1999) 195 CLR 665; R v Franceschini (2015) 123 SASR 396; R v Tsonis [2018] SASCFC 86, applied. R v Mark [2019] SASCFC 48; Police v Chilton [2014] SASCFC 76; Police v Cadd (1997) 69 SASR 150; Police v Nissen (2014) 120 SASR 50; Kentwell v The Queen (2014) 252 CLR 601, discussed. -- 2 of 10 -- BARNES v POLICE [2024] SASC 39 Magistrates Appeal: Criminal McDONALD J. 1 On 21 September 2023 Kym Barnes was sentenced for 19 offences that were the subject of 14 Magistrates Court files. A summary of the offences and the sentences imposed is set out below: File Count Offence Maximum Penalty Penalty Imposed MCCRM- 23- 012404 1 Drive vehicle licence disqualified/suspended (s 91(5a) MVA). 3 years (subsequent offence). 1 month imprisonment (after 30% discount) MCCRM- 23- 013667 1 Drive vehicle licence disqualified/suspended (s 91(5a) MVA). 3 years (subsequent offence). 1 month 12 days imprisonment (after 30% discount, to be cumulative on the 1 month imprisonment imposed for MCCRM- 23-012404) Total for 23-012404 and 23-013667: 2 months 12 days imprisonment. Suspended upon entry into a bond to be of good behaviour for 3 years. 2 Contravene direction to stop or not move vehicle (s 40H (5) RTA). $5000 Convicted, discharged without further penalty. 3 Drive unregistered motor vehicle on road (s 9(1) MVA). $7500 Convicted, discharged without further penalty. 4 Drive uninsured motor vehicle on road (s 102(1) MVA). $10,000 Convicted, discharged without further penalty. 5 Drive, sell or dispose of vehicle contrary to defect notice (s 145(6) RTA). $2500 Convicted, discharged without further penalty. -- 3 of 10 -- [2024] SASC 39 McDonald J 2 6 Drive motor vehicle with defaced number plate (s 47D(1)(b) MVA). $5000 Convicted, discharged without further penalty. MCPIR- 22-1512 1 Drive motor vehicle with methamphetamine in fluid/blood (s 47BA (1)(a) RTA). $900 Min 6 month disq. $900 6 month disq. MCCRM- 23- 000562 1 Drive motor vehicle with methamphetamine in fluid/blood (s 47BA (1)(a) RTA). $900 Min 6 month disq. $900 6 month disq. MCCRM- 22- 005222 1 Drive motor vehicle with methamphetamine in fluid/blood with a child under 16 present (s 47BA (1)(a) RTA). $900 Min 6 month disq. $900 6 month disq. MCCRM- 23- 006215 1 Drive motor vehicle with methamphetamine in fluid/blood (s 47BA (1)(a) RTA). $900 Min 6 month disq. $900 6 month disq. MCCRM- 22-17298 1 Drive motor vehicle with methamphetamine in fluid/blood (s 47BA (1)(a) RTA). $900 Min 6 month disq. $900 6 month disq. MCCRM- 22-17301 1 Drive motor vehicle with methamphetamine in fluid/blood (s 47BA (1)(a) RTA). $900 Min 6 month disq. $900 6 month disq. MCCRM- 23- 014127 1 Drive motor vehicle with methamphetamine in fluid/blood (s 47BA (1)(a) RTA). $900 Min 6 month disq. $900 6 month disq. MCCRM- 22-17303 1 Drive motor vehicle with methamphetamine in fluid/blood (s 47BA (1)(a) RTA). $900 Min 6 month disq. $900 6 month disq. MCCRM- 22-21243 1 Drive motor vehicle with methamphetamine in $900 Min 6 month disq. $900 6 month disq. -- 4 of 10 -- [2024] SASC 39 McDonald J 3 fluid/blood (s 47BA (1)(a) RTA). MCCRM- 22-18125 1 Fail to comply with bail agreement (s 17(1) Bail Act). $10,000 or 2 years imprisonment. Convicted, discharged without penalty. MCRM- 23- 033473 1 Fail to comply with bail agreement (s 17(1) Bail Act). $10,000 or 2 years imprisonment. Convicted, discharged without penalty. MCCRM- 23- 012193 1 Possess equipment to use with controlled drug (not cannabis) s 33L(1)(c) (CSA). $2000 or 2 years imprisonment. Convicted, discharged without penalty. 2 This is an appeal against the sentence of two months and 12 days imprisonment for the two offences of driving a motor vehicle whilst disqualified or suspended. That sentence was suspended upon Mr Barnes entering into a good behaviour bond for a period of three years. The bond included conditions that he remain under supervision for the entire period of the bond and that he be drug tested a minimum of once per calendar month. 3 On the appeal, Mr Barnes makes three complaints. First, he submits that the sentence imposed is manifestly excessive. Secondly, it was submitted that the Magistrate erred by failing to allow any credit for the time spent in custody, and thirdly, that the Magistrate also failed to take into account time spent on home detention bail. Principles on Appeal 4 This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA) (‘the Rules’). Appeals from a Magistrate to a single Judge of the Supreme Court are by way of rehearing pursuant to r 191.1 of the Rules. 5 In order to interfere with the exercise of a sentencing discretion, there must be a demonstrated error of the kind described in House v The King.1 The approach to be adopted was summarised by White J in Wittwer v Police:2 The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or if it has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly: House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen 1 (1936) 55 CLR 499. 2 [2004] SASC 226 at [16]. -- 5 of 10 -- [2024] SASC 39 McDonald J 4 (2000) 202 CLR 321 at 324 – 325 [3] – [4]; Naera v Police (1995) 184 LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60. 6 The Court will not interfere merely because it would have exercised the sentencing discretion in a different way to the sentencing Magistrate.3 It is the appellant’s submission that the sentence imposed by the Magistrate was infected by both outcome and process error. The approach to be adopted by an appellate court in relation to each type of error was conveniently summarised by Stanley J in R v Mark:4 A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal. (Footnotes omitted) Concession made by the Respondent 7 Prior to the hearing of the appeal, counsel for the respondent advised the Court that at least one, probably two, process errors had been identified. The first error was that the Magistrate had failed to take into account the time that Mr Barnes had spent in custody. This was the appellant’s second ground of appeal. The second error, that was not the subject of a ground of appeal, is that the Magistrate erroneously decided to suspend the sentence imposed prior to determining the length of that sentence.5 It may be that the latter error caused the first or, as counsel for the respondent submitted, that the failure of the Magistrate to take into account the time Mr Barnes spent in custody was “part and parcel” of the process error, that being the decision to suspend before determining the appropriate sentence. The failure to take into account the time spent in custody 8 At the time of sentencing, Mr Barnes had spent just over five weeks in custody (from 9 April 2023 – 17 May 2023). 3 R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665 at 671- 672. 4 [2019] SASCFC 48 at [18]. 5 Section 96(1) of the Sentencing Act 2017 (SA) provides that: Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond— … (Emphasis added) -- 6 of 10 -- [2024] SASC 39 McDonald J 5 9 Pursuant to s 44(2) of the Sentencing Act 2017 (SA), if a defendant has spent time in custody in respect of an offence for which they are subsequently sentenced to a term of imprisonment, the Court may take into account the time already spent in custody by making a reduction to the length of the sentence, or by backdating the sentence. A “sentence” is defined to include “the imposition of a penalty”; or “the decision of a court to offer a defendant an opportunity to enter into a bond”.6 Although the Court is conferred with a broad discretion as to the extent of any credit given for time spent in custody, the usual, typical or “almost universal” practice is to give full credit for that time.7 In light of that practice, there must be some proper basis to depart from the conventional approach. 10 In R v Tsonis,8 the Full Court explained the approach to be adopted as follows: However, in light of the usual practice of giving full credit, it would seem that there must be some good reason - that is, some reason or circumstance that reflects sound sentencing principles - before it is appropriate to give less than full credit. Further, where a sentencing judge does decide to give less than full credit, it is incumbent upon that judge to disclose both the extent of the credit given for the time spent in custody (and hence the extent of the shortfall), and the reason or reasons for giving less than full credit. 11 In this matter, the Magistrate expressly indicated that as she intended to suspend the term of imprisonment imposed on Mr Barnes, no reduction would be made for the time that he spent in custody. The Magistrate failed to identify any basis upon which she proposed to disregard that time in formulating the length of the sentence. 12 Counsel for the respondent correctly concedes that the Magistrate was in error in adopting that approach. In light of this error, this Court’s power to intervene is enlivened, and the Court must resentence unless “in the separate and independent exercise of its discretion it concludes that no different sentence should be passed”.9 13 In such circumstances, it is not necessary to consider the complaints of manifest excess, or of the failure of the Magistrate to give appropriate weight to the period that Mr Barnes spent on home detention bail conditions. As to the latter, I simply make the observation that the authorities are clear. The approach to be taken to the weight to be given to the time that a defendant spends on home detention bail compared to time in custody, is very different. 14 In relation to the former, the Court has greater flexibility, with no obligation as to how to approach the determination of how much, if any, credit should be given. As Nicholson J said in R v Franceschini:10 6 Sentencing Act 2017 (SA) s 5(1). 7 R v Tsonis [2018] SASCFC 86 at [69]. 8 Ibid at [75]. 9 Kentwell v The Queen (2014) 252 CLR 601 at 615. 10 (2015) 123 SASR 396 at 408. -- 7 of 10 -- [2024] SASC 39 McDonald J 6 At common law, a sentencing Judge in this State has a discretion to allow credit for time spent on home detention bail and to, in effect, fix a period by which the sentence otherwise to be ordered is to be reduced thereby. There is no obligation on a court to give any such credit. Further, where some allowance is made, it inevitably will be significantly less than the total amount of time spent on home detention bail, but there is no accepted formula. It is akin to a personal circumstance to be taken into account and the particular facts of each case will inform whether or not credit is warranted the extent of any such credit that is warranted. 15 It is apparent from the sentencing remarks that the Magistrate was alive to the fact that the appellant had spent time on home detention bail. 16 It follows that it has not been established that the Magistrate was in error in the approach that she adopted in relation to this sentencing consideration. 17 As mentioned previously, counsel for the respondent correctly conceded that ground 2 has been made out. The appeal is allowed, and the sentence imposed by the Magistrate is set aside. Resentence 18 The parties agreed that there is no utility or benefit in remitting the matter back to the Magistrates Court for Mr Barnes to be resentenced. It was agreed that this Court is in just as good a position as the Magistrates Court to resentence Mr Barnes. 19 There has been no suggestion by the parties, either in the Magistrates Court or on appeal, that this offending does not warrant the imposition of a term of imprisonment. It has long been recognised that driving whilst disqualified is an inherently serious offence. 20 In Police v Chilton,11 in considering the earlier authority of Police v Cadd,12 and Police v Nissen,13 (which was handed down the same day) Kourakis CJ set out the rationale behind why the Court regards this offence as so serious:14 …The reasons of this Court in Cadd, which was recently considered by this Court in Police (SA) v Nissen, show that such is the need for personal deterrence and general deterrence for offences of this kind that a recidivist offender with no compelling reason to drive can, in the ordinary course, expect to be imprisoned notwithstanding that statutory and common law principle. To put it bluntly, so great is the need to ensure that disqualification orders operate as an effective sanction in ensuring compliance with the rules of the road that imprisonment will, generally, be resorted to in the case of offenders who repeatedly flout judicial or administrative orders of disqualification. 21 The facts and circumstances surrounding Mr Barnes’ two offences make them serious offences of their type. At the time of the commission of these offences, Mr Barnes had previously been convicted of driving disqualified on five 11 (2014) 120 SASR 32. 12 (1997) 69 SASR 150. 13 (2014) 120 SASR 50. 14 Police v Chilton (2014) 120 SASR 32 at 38-39. -- 8 of 10 -- [2024] SASC 39 McDonald J 7 occasions, albeit in 2003 and 2004. It follows that the offences committed in 2023 were “subsequent” offences, with a maximum penalty of three years imprisonment.15 22 On 13 February 2023, Mr Barnes had received a three month licence suspension for driving whilst under the influence of methylamphetamine. It was approximately six weeks later on 28 March 2023 that Mr Barnes was apprehended by the police whilst driving disqualified. On this occasion Mr Barnes was pulled over by police in Kadina. He returned a positive result to an oral fluid drug screening test. That drug was subsequently confirmed to be methylamphetamine and Mr Barnes was issued with a further three month instant loss of licence. 23 Less than two weeks later, on 9 April 2023, Mr Barnes was again caught by police driving whilst disqualified. On this occasion he was driving a utility in New Town. The utility was towing a trailer that was fully loaded with furniture. Mr Barnes again tested positive to methylamphetamine on a roadside drug test. Mr Barnes’ explanation for driving on this occasion was that he needed to move house and was unable to find anyone to assist him. 24 In determining the appropriate sentence for these offences, it is instructive to consider them in the context of Mr Barnes’ previous criminal record and the events that were occurring in his life at the time of the offending. 25 Mr Barnes has a relatively extensive criminal history. He has committed numerous driving offences, property offences and offences of violence. He has received the benefit of suspended sentences and he has been imprisoned. Until recent times he had not, however, committed any further criminal offences since 2014. I am told that this period of stability coincided with a new relationship and the birth of his daughter. 26 In 2022 the “wheels fell off” for Mr Barnes. His relationship broke down and he subsequently lost his family and his home. This led to a period of nine months of poor decision making as Mr Barnes reverted to maladaptive coping mechanisms involving the use of drugs which resulted in the commission of the various offences. The last offence occurred in April 2023 and since that time he has, with one exception, returned negative results to drug tests both as part of his bail conditions and under the terms of the good behaviour bond. 27 An important turning point in Mr Barnes’ life has been in obtaining employment at Bulgunnia Station. Mr Barnes commenced employment there as an overseer but has since been promoted to a new role that involves him working across a number of stations. I have received a reference from Mr Barnes’ employer which speaks of his performance and attitude in positive terms. It would seem that over the time that Mr Barnes has worked in these roles he has remained drug free 15 Motor Vehicles Act 1959 (SA) s 91(5a). -- 9 of 10 -- [2024] SASC 39 McDonald J 8 and has committed no further offences. That is relevant to both the sentence that I impose and the conditions of the good behaviour bond. 28 I see no reason to interfere with the sentences imposed by the Magistrate. They fall within the appropriate range of sentences for offences of this type. For the March 2023 offence,16 I sentence Mr Barnes to six weeks imprisonment, which is reduced to one month, taking into account a reduction of 30 per cent for his guilty plea. For the April 2023 offence, I sentence Mr Barnes to two months imprisonment which is also reduced by 30 per cent, to one month and 12 days. The sentences are to be cumulative resulting in a sentence of two months and 12 days. I reduce that sentence to one month to take into account the time that Mr Barnes has spent in custody and on home detention conditions.17 I will suspend that sentence upon Mr Barnes entering into a bond to be of good behaviour. 29 I turn then to the length of the good behaviour bond. There are a number of factors to be taken into account in determining the appropriate length of the bond. It is a relevant consideration that Mr Barnes has demonstrated exemplary compliance for the six months that he has already been on a bond, in circumstances in which he has had to undertake the onerous task of a three day return bus trip to Port Augusta to undergo monthly drug testing. This however has to be balanced with the propensity that Mr Barnes has demonstrated to fall back into bad habits when life stressors increase. It is consequently necessary that Mr Barnes have the support of a community corrections officer for a further period of time. 30 In my view, a 12 month good behaviour bond with supervision strikes the balance between the competing considerations. It will be a term of the bond that during that time Mr Barnes will not consume any illicit drugs. I do not propose to include a condition that prescribes the frequency of drug testing. That decision is best left in the hands of those with the expertise to make that determination, based on their assessment of the various factors that need to be taken into account. 16 MCCRM-23-012404. 17 Mr Barnes spent three months and six days on home detention bail. -- 10 of 10 --