ASHCROFT v Police - [2009] SASC 251

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ASHCROFT v POLICE
[2009] SASC 251
Judgment of The Honourable Justice Nyland
25 August 2009
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
Appellant pleaded guilty to driving disqualified - Magistrate revoked order for suspension of earlier sentence of imprisonment for similar offences - whether offending contumacious - foolish decision to drive in context of situation which appellant perceived to be urgent - no error on part of Magistrate - appeal dismissed.
Motor Vehicles Act 1959 s 91, referred to.
Rhodes v Police [1999] SASC 191, distinguished.
Hendy v Police [2008] SASC 131, discussed.
Police v Cadd (1997) 69 SASR 150; Nash v Police [2009] SASC 112, considered.

ASHCROFT v POLICE
[2009] SASC 251
Magistrates Appeal

NYLAND J: This is an appeal against sentence. The appellant was charged on complaint that on 22 December 2008 at Christies Beach he drove a motor vehicle, namely a green Ford sedan, South Australian Registration WEK-858 on a road, namely Fuller Terrace, while he was disqualified from holding or obtaining a licence, contrary to the provisions of s 91 Motor Vehicles Act 1959.
On 23 April 2009, the appellant appeared before a Stipendiary Magistrate in the Magistrates Court at Christies Beach and pleaded guilty to that charge. At the same time, an application was made for the enforcement of a bond which the appellant had entered into on 4 June 2008. On that date the appellant was sentenced with respect to three offences of driving disqualified, which had occurred on 19 April 2008, 3 May 2008 and 8 May 2008 respectively. On that occasion, the Magistrate imposed a total sentence of imprisonment of three months, but suspended that sentence upon condition that the appellant enter into a bond in the sum of $200 to be of good behaviour for a period of two years. That bond included conditions that the appellant be under the supervision of a probation officer/community corrections officer for a period of 12 months and that he obey all lawful directions, which included directions as to treatment, counselling and/or programs for drug or alcohol abuse.
The Magistrate’s findings
It appears there was some discussion between the Magistrate and Mr Colthorpe, who appeared as counsel for the appellant in the Magistrates court, as to the basis upon which the appellant drove on the day in question. The appellant subsequently gave evidence on oath as to that matter.
Having heard the evidence of the appellant, the learned Magistrate indicated that he considered that the driving of the appellant was contumacious. He then considered whether there were proper grounds to excuse the failure to abide by the terms of the bond entered into by the appellant on 4 June 2008. The Magistrate was not satisfied that the failure to comply with the conditions of the bond was trivial nor did he find proper grounds to excuse the breach. He therefore revoked the order for suspension of the sentence of imprisonment. The Magistrate did not consider there were any special circumstances to justify a reduction of that sentence, and therefore ordered the sentence of three months imprisonment be carried into effect forthwith. The Magistrate noted however that the appellant had spent one month in custody and had also been on home detention bail and he took those matters into account. He indicated that the starting point for the term of imprisonment for the present offence should be a period of five months, but he reduced that by one month to allow for the plea of guilty and by a further month to allow for time spent in custody. That resulted in a sentence of three months imprisonment, which he directed to be served cumulatively upon the three months to be served upon revocation of the order for suspension of sentence. The total term of imprisonment was therefore six months.
Grounds of appeal
On the hearing of the appeal, Mr Colthorpe again appeared for the appellant and Mr Jacobi appeared for the respondent. Mr Colthorpe submitted that the learned Magistrate had erred in finding that the circumstances surrounding the offence were contumacious. He referred to the evidence of the appellant as to his reason for driving and submitted that the circumstances did not demonstrate a flagrant disregard of the law, such as to require the imposition of an immediate custodial term.
Evidence of the appellant
The appellant told the court that prior to 22 December 2008 he had been employed for about four and a half years by A-Class Metal Finishers on a casual basis as a metal polisher. On about 18 December 2008 however he was told that it was unlikely that there would be any work available in the New Year.
At the relevant time the appellant was living at his brother’s house at Seaford, together with his brother’s girlfriend and their two children. At about 12.20 pm on 22 December 2008 the appellant received a phone call from a friend. He said that his boss would be at his house shortly and there was a possibility that some work might be available for the appellant. The appellant needed to attend promptly, however, as the boss was not going to be there for very long. The appellant understood that if work was available, it could commence the following day. The friend resided at Christie Downs, which was about a 10-minute car drive from the appellant’s address at Seaford. The appellant said he was not aware of the availability of any public transport and did not have money to hire a taxi. The appellant’s brother was at work. His brother’s girlfriend was at home, but was not the holder of a driver’s licence. The appellant’s father lived at Christie Downs, but he also was not the holder of a driver’s licence.
The appellant was very keen to obtain more work as he was now 22 and had worked consistently since he was 16. He did not however have any work lined up for the near future. As it happened, a vehicle belonging to the appellant’s mother had been left at the house. The appellant’s mother was however at work and not available to drive the appellant. The appellant therefore took her car and drove himself. About seven and a half minutes into his journey, he was stopped by the police. The appellant admitted that he was aware that he was disqualified, but said he was worried that he was not going to have any work and was worried about his income.
Contumacious offending
Mr Colthorpe referred to the term “contumacious” as discussed in Cadd[1] wherein Mullighan J said at [179] that it meant:
…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 and disobedient to the authority which imposed it.
[1] (1997) 69 SASR 150.
The question of contumacy has been more recently discussed by the Chief Justice in Nash v Police[2] wherein he said at [38]:
… It suffices to say that I consider that the attitude of the offender to the disqualification or licence suspension is of particular significance. The attitude of the offender is to be determined by an assessment of the circumstances of the breach and the reason given by the offender for the breach.
[2] [2009] SASC 112.
Mr Colthorpe argued that the fact that the appellant was driving to secure what was perceived to be a very real prospect of gaining employment and the limited time frame available to him to attend at his friend’s house was similar to, but stronger than, the situation which arose in Rhodes v Police[3]. In Rhodes the appellant had been offered the loan of a computer by a workmate, but the arrangement for the delivery of the computer fell through and advice was received that it would not be available unless collected immediately. The computer was to be used by the appellant’s wife, who had been unemployed for some time but had been offered employment subject to her improving her computer skills. The appellant panicked at missing the opportunity and that prompted him to make what he admitted was a foolish decision to drive.
[3] [1999] SASC 191 at para 14.
In that case, I allowed the appeal against the imposition of an immediate custodial sentence, although I found that appellant’s decision to drive was wilful and could not be described as occurring in a situation of emergency or duress. In that case however the appellant had for over two years put in place a regime for others to drive him. His good character was supported by a number of character references and he had a strong employment history but was at risk of losing his employment as a result of an immediate sentence of imprisonment.
In view of the circumstances of the appellant’s offending, together with all of the matters personal to him, I considered in that case there was good reason to suspend the sentence of imprisonment.
Mr Colthorpe argued that in this case the appellant was doing more than just improving his skills. Had the meeting at his friend’s place been successful, his employment would have commenced the following day.
Mr Colthorpe also referred to Hendy v Police[4] in which the appellant was unable to catch public transport and had no other family members to assist in collecting children from school. The court in that case found the driving was not contumacious.
[4] [2008] SASC 131.
Mr Colthorpe therefore submitted that the circumstances in which the appellant drove his car did not amount to a contumacious breach. In addition, he submitted that the learned Magistrate had erred in finding the offending contumacious due to the appellant’s prior conviction and the appellant being subject to a suspended sentence at the relevant time.
In the course of his sentencing remarks the learned Magistrate said he presumed the appellant would have been given significant warnings about driving disqualified and to have understood that a term of imprisonment was likely to follow as a result of the breach. As to this aspect of the matter, Mr Jacobi referred to the antecedent report of the appellant which confirmed that the appellant had in fact been warned on more than one occasion in the past about the consequences of driving while disqualified from holding a licence, quite apart from the clear warning provided by reason of the imposition of the bond with respect to suspension of the earlier sentence.
I have some sympathy for the appellant and his enthusiasm to obtain employment, but the fact of the matter is that he drove a motor vehicle, well knowing that he was subject to the constraint of a suspended sentence, quite apart from the previous orders for disqualification. In those circumstances I consider the learned Magistrate correctly found that his conduct was contumacious. Further, the appellant has an extremely poor driving record. This was the fourth offence of driving whilst disqualified and included in his offending history are six offences of driving PCA and other driving offences, including driving without due care, all of which occurred on 6 November 2004. This offence was committed only about six months after his entry into the suspended sentence bond. In those circumstances, there was no basis upon which the learned Magistrate could forgive the breach, nor reduce the length of the earlier sentence. Nor were the circumstances of the driving nor the personal circumstances of the appellant such as to provide good reason for the learned Magistrate to take a more lenient view with respect to the appellant’s offending on this occasion. No error on the part of the learned Magistrate has been identified. The appeal is therefore dismissed.