Amos v Police No. Scgrg-97-1345 Judgment No. S6437
[1997] SASC 6437
•14 November 1997
AMOS v POLICE
Matheson J (ex tempore)
The appellant pleaded guilty on 12 September 1997 in the Magistrates Court at Adelaide to a charge that on 30 December 1996 at Paralowie in the state of South Australia he drove a motor vehicle on the road, namely McNicoll Road, while he was disqualified from holding or obtaining a licence contrary to s91 of the Motor Vehicles Act 1959.
He also admitted that he was thereby in breach of a bond in which he entered on 25 July 1996 in the Magistrates Court at Elizabeth on the charge of driving whilst disqualified.
On that occasion he was sentenced to seven days imprisonment suspended upon him entering into a bond in the sum of $100 to be of good behaviour for a period of six months.
The facts of the offence to which the appellant pleaded on 12 September were that at about 5.25 pm. on 30 December 1996 police were on uniform mobile patrol travelling north on McNicoll Road, Paralowie. They were following a brown Ford Galaxy sedan driven by the appellant.
A motor vehicle check conducted by the police computer revealed that he was currently disqualified. The appellant stopped and the police had a conversation with him in which he said that he was aware that it was an offence to drive a motor vehicle on a road whilst disqualified and he gave as his reason that he was just going to work.
After hearing submissions from the police prosecutor and Ms Abbott, counsel for the appellant, the learned magistrate remanded the appellant in custody until 16 September upon which date she convicted the appellant, and sentenced him to 21 days imprisonment commencing on 12 September and ordered him to pay costs amounting to $116, and in relation to the breach of bond her Honour revoked the suspension and imprisoned the appellant to seven days commencing on the same date namely 12 September. Her Honour's order meant, of course, that the two sentences were to be served concurrently. On the same date her Honour released the appellant on bail having regard to his intention to appeal to this court.
The appellant had a very bad record indeed which included the following: On 30 November 1989 he was convicted of exceeding prescribed concentration of alcohol and fined $350 and disqualified for six months; on 13 January 1983 he was convicted of a number of offences including driving under the influence of intoxicating liquor and fined a total of $2,200 for all the offences and disqualified from holding or obtaining a driver's licence until further order; on 26 July 1993 he was again convicted of exceeding the prescribed concentration of alcohol, fined $700 and disqualified for one year.
There is no doubt that a great deal could be said and was said by Ms Abbott, counsel for the appellant, in mitigation of penalty both before the learned magistrate and before me. Those submissions included the following:
The appellant’s vehicle was stopped as a result of a random police licence check at 5.25pm and there was no allegation of bad driving or intoxication.
The appellant was a twenty-six year old man at the time of the subsequent offence and twenty-seven when sentenced.
Following the commission of this offence the appellant was married on the 22nd March 1997 to a woman whose eleven year old son he supports and treats as his own.
It was with his wife that the appellant purchased his first real estate in the form of a vacant block of land in January 1997. The appellant and his wife took out a substantial loan for $88,000.00 for the purchase of the land and the building of the house.
At the time of sentencing the building of the matrimonial home on the block of land had been completed and the family had recently begun to reside there.
The appellant has been in full time employment at ‘Midas Muffler and Brake Shop’ at Norwood for almost two and a half years. He is one of three mechanics employed there and is the only qualified brake mechanic. He works five and a half days per week.
A letter dated the 25th August 1997 from Mr Craig Hersey, the manager at Midas, was tendered to the Court. It confirmed that the appellant will lose his employment if his sentence causes him to require more than one week off work. After pleading guilty the appellant was remanded in custody for five days prior to receiving his sentences and then receiving bail pending this appeal. If he loses any further time off work he will lose his employment.
The appellant is the only income earner in the family. His income averages $400.00 nett per week. His wife is unemployed and receives the Family Allowance of $60.00 per week. The appellant also has fines outstanding to the Court Services Department in the amount of approximately $11000.00. The family has no savings. Without the appellant’s income the family would not be able to continue to service the mortgage of $160.00 per week and personal loan repayments of $33.75 per week in addition to their living expenses.
If the appellant were to lose his job at Midas the matrimonial home would be subject to a mortgagee sale unless the appellant was fortunate to find other work immediately.
The appellant has had a lengthy problem with alcohol abuse for over ten years. A letter dated the 6th August 1997 was tendered from the appellant’s mother which advised that the appellant had made a vast improvement in his lifestyle and behaviour over the preceding 18 months. It was not disputed by the prosecution that the appellant had not consumed alcohol to excess since the 18th November 1995. The appellant’s relationship with his wife which commenced after that date is believed to be the influence for his change in behaviour. The appellant’s actions over the 9 month period between the offence and sentencing were evidence of his growing maturity. The appellant’s wife and mother were present and available to give oral evidence of any of the above matters should there have been any dispute about the facts however they were not required to do so."
The learned magistrate gave some reasons for the orders that she made and they included the following:
"In relation to this matter Mr Amos has pleaded guilty to one count of driving disqualified. In so doing he also admitted breaching a bond, which was a seven day suspended sentence for the same offence for which he was dealt with on 25 July 1996.
In between that time and 3 December, the date of this offence, he was also dealt with for a PCA offence. That matter was dealt with on 14 October 1996 but related back to the same date as the earlier drive disqualified charge. He was warned about driving disqualified in July 1996. He was warned again in October 1996 when he was dealt with for the PCA. On 31st December, two months later, he chose to ignore both those warnings and again drove whilst disqualified.
Miss Abbot, in her submissions, made an ardent plea for suspension of the sentence. She has referred to the case of R v Cadd and Ors and submitted that if that case had been decided prior to July 1996 this man would be unlikely to have received a suspended sentence. That argument is hypothetical and of little assistance to the matter before court now.
The factual reality is that this man received a suspended sentence for driving disqualified in July 1996. Five months later he chose to ignore that warning, driving again, knowing full well the penalty for driving disqualified.
In my view R v Cadd has not changed the law regarding the serious nature of driving disqualified. I refer generally to the comments made by the majority of the judges in that matter.
The defendant has, as I have said, pleaded guilty to these offences. He is certainly entitled to credit for that. Miss Abbott said that his life has changed significantly since December 1996, and that is a factor to be taken into account in considering the breach of the bond and the sentence for this particular matter. Since December he has married. He is employed at Midas Mufflers and is apparently well regarded in that business enterprise.
On the occasion of this offence he needed, in his mind as a matter of urgency, to get from Norwood to Paralowie to sign mortgage documents for a home which he and his fiance were buying; he had missed two appointments to sign those loan papers in the past. In light of that situation he chose to go to his parent’s house, get his car and drive from Norwood to Paralowie to sign the documents. It was, in my view, for him a matter of convenience to drive. It is not a case that is out of the ordinary as far as these types of offences are concerned. Mr Amos took the risk and in this case, lost.
I am not satisfied that suspension is appropriate in these circumstances, however I am certainly of the view that the factors set out by Ms Abbott justify a shorter than normal period of imprisonment for these offences. The suspension of the bond imposed in July 1996 will be revoked and I order that he serve the seven days period of imprisonment.
On the present matter of drive disqualified he is convicted and sentenced to a period of 21 days imprisonment; both sentences to run from 12 September 1997."
In her very well prepared and most earnest submissions, Ms Abbott argued, amongst other things, that the fact that the learned magistrate in not referring in her remarks to the potential loss of employment that imprisonment for more than seven days would cause for the appellant, was in error. Moreover, she did not refer to Ms Abbott’s submission that the learned magistrate should have reduced the sentence of imprisonment originally imposed of seven days pursuant to s58(4) of the Criminal Law. (Sentencing) Act 1988.
I am not persuaded that her Honour overlooked those submissions, even though they may not have been expressly mentioned.
I am impressed by the appellant's efforts with the help of his wife and his mother to rehabilitate himself, but I ould be falling down in my duty if I interfered with what her Honour did in this matter which, in my view, far from being manifestly excessive, really was quite merciful.
Sympathetic as I am for the appellant and his wife and his family, I simply can find no justification for allowing the appeal.
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