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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ASHCROFT v Police

Details

AGLC: ASHCROFT v Police [2009] SASC 251
Case: [2009] SASC 251
Decision Date: 25 August 2009

CaseChat Overview and Summary

The appellant in this case, Ashcroft, appealed against a decision of a Magistrate of the Magistrates Court of South Australia, who had revoked an order for the suspension of an earlier sentence of imprisonment. Ashcroft pleaded guilty to driving while disqualified. The issue before the court was whether the Magistrate erred in finding that the circumstances surrounding the offence were contumacious, and whether the Magistrate's decision to revoke the suspension order was appropriate.

The court found that the Magistrate had not erred in finding that the circumstances surrounding the offence were contumacious. The court found that the appellant's decision to drive while disqualified demonstrated a flagrant disregard for the law, and that the appellant's reasons for driving were not sufficient to excuse his conduct. The court noted that the appellant had been aware of his disqualification, and that he had driven in circumstances which he perceived to be urgent. The court found that the appellant's conduct was deliberate and reckless, and that the Magistrate was entitled to find that the circumstances of the offence were contumacious.

The court dismissed the appeal and upheld the decision of the Magistrate. The court found that the Magistrate had not erred in revoking the suspension order, and that the appellant's conduct warranted an immediate custodial sentence. The court noted that the appellant had a history of similar offending, and that the suspension order had been previously revoked on two occasions. The court found that the appellant's conduct demonstrated a lack of respect for the law, and that the revocation of the suspension order was appropriate.

[1] (1997) 69 SASR 150.
[2] [2009] SASC 112.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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