Aylett v Police

[2006] SASC 132

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

AYLETT v POLICE

[2006] SASC 132

Judgment of The Honourable Chief Justice Doyle (ex tempore)

4 May 2006

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE

Appellant convicted of driving while disqualified from holding driver's licence contrary to s 91 of the Motor Vehicles Act 1959 (SA) - Magistrate imposed sentence of imprisonment for one month - appeal on grounds that the sentence was manifestly excessive - evidence of impact of imprisonment upon appellant's family not raised before Magistrate - respondent not seeking to cross-examine appellant on new evidence - whether appellant should have realised importance of material - whether appellant's solicitor should have raised matter - whether unfairness caused by admission of evidence - evidence admitted - consideration of impact of imprisonment on appellant's family - consideration of previous offence and need for deterrence - consideration of whether sentence should be suspended under s 38 of the Criminal Law (Sentencing) Act 1988 (SA) - appeal allowed - sentence of 14 days' imprisonment imposed - sentence not suspended.

Motor Vehicles Act 1959 (SA) s 91; Magistrates Court Act 1991 (SA) s 42(4); Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Police v Cadd (1997) 69 SASR 150; Neill v Police [1999] SASC 270; The Queen v Smith (1987) 44 SASR 587; The Queen v Amuso (1987) 138 LSJS 53; Gallagher v The Queen (1986) 160 CLR 392; The Queen v McIntee (1985) 38 SASR 432, considered.

AYLETT v POLICE
[2006] SASC 132

Magistrates Appeal:  Criminal

1. DOYLE CJ (ex tempore): This is an appeal against sentence.

2. Mr Aylett pleaded guilty to a charge of driving while disqualified from holding or obtaining a driver’s licence contrary to s 91 of the Motor Vehicles Act 1959 (SA). He was represented and submissions were made on his behalf. The Magistrate convicted Mr Aylett and sentenced him to imprisonment for one month. Mr Aylett appeals on the grounds that the sentence is manifestly excessive. He relies on certain matters by way of mitigation that were not put to the Magistrate.

3. The background to this offence is that on 29 November 2004 Mr Aylett was convicted in the Magistrates Court at Coober Pedy for failing to keep to the left, for driving while there was in his blood the prescribed concentration of alcohol and for driving while disqualified from holding or obtaining a driver’s licence.  He was fined and disqualified from holding or obtaining a driver’s licence for 15 months. He was warned about the likely consequence of driving during the 15 month period.

4. The offence now in question was committed at Coober Pedy about 11 months into the 15 month period of disqualification.

5. Mr Aylett’s explanation for the offence was not one that provided anything much by way of mitigation.  He was proposing to travel to Adelaide the following day by car.  His wife was going to drive.  He needed a new globe for the brake light of the car.  He walked to a shop to buy one and found he had forgotten his wallet.  He walked home.  It was close to closing time, so he drove back to the shop.  It was a spur of the moment decision.

6. In my view, Mr Aylett indicated a disregard of the disqualification order and a disregard for the authority of the court.  He does not claim that he could not have waited the following morning until the shop was open before setting off to Adelaide.  He has not claimed that his wife or someone else could not have driven him to the shop.  It was open to the Magistrate to conclude, as he did, that this was a decision to take the easy course, Mr Aylett being well aware of the disqualification.

7. Bearing in mind Mr Aylett’s record, in particular the earlier disqualification, whether it was by order of a court or not, it was open to the Magistrate to conclude that imprisonment was warranted. This conclusion was open having regard, in particular, to the fact of the prior offence of the same kind, to the relatively short period since that offence had been committed, and to the inadequacy of the excuse that Mr Aylett offered.

8. When a licence disqualification is imposed as a penalty, disregard of that disqualification erodes the efficacy of disqualification as punishment.  It can undermine community confidence in the courts.  The conduct in a case like this indicates a disregard for the decision of the court.

9. The matters that I canvassed in Police v Cadd (1997) 69 SASR 150 at 166-169, all support the approach that the Magistrate took. The case is one of a kind referred to by Mullighan J at 179 when he outlined the circumstances in which imprisonment was appropriate.

10. It follows that the appeal would have been dismissed, more or less as a course unless the further material is admissible and calls for a different decision.

11. The Magistrates Court Act 1991 (SA) by s 42(4) empowers the court to admit fresh evidence on appeal “If the interests of justice so require”. This has been taken to require the appellant to show that the evidence could not have been earlier or previously obtained, exercising reasonable diligence. That will often be an appropriate test but it may not fit all circumstances. In the end, it is the statutory terms that must take priority, although I am, of course, bound by case law that gives content to those statutory terms.

12. I refer in passing to my brief consideration of this topic in Neill v Police [1999] SASC 270 at [19]-[24] and to the decisions that I there referred to: The Queen v Smith (1987) 44 SASR 587; The Queen v Amuso (1987) 138 LSJS 53 at 56-57, and the statement of Sir Harry Gibbs in Gallagher v The Queen (1986) 160 CLR 392 at 395.

13. The nature of the evidence, the circumstances which called for it to be presented, and the reason for not advancing it before, will always be relevant.  These matters may affect the approach of the court to the question of whether it should be admitted.  They may affect the manner in which the question is formulated.

14. Here the evidence, which is evidence about the effects of imprisonment on Mr Aylett’s family, was known to Mr Aylett.  He should have realised that it was material.  But I can understand that there would be some people in the community who would not fully appreciate that.  It is a topic on which one would hope that a legal representative would make inquiry in case there was something that the court should know.  That was apparently not done in this case.  On the other hand, it is not material on which the prosecution and the defence had joined issue.  The admission of that evidence now would not cause any unfairness, in the sense of putting the prosecution at a disadvantage through their inability now to challenge or test material which would have been challenged or tested, had it been presented at the time.

15. I am mindful of what King CJ said in The Queen v McIntee (1985) 38 SASR 432 at 435, where he said:

    The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.

16. Mr Aylett told his solicitor that he had not raised the additional matters when before the Magistrate in part because he did not appreciate the significance but also because he was in a state of panic and he was not thinking clearly.  That explanation is not challenged.  I add that on appeal Ms Riddle, for the respondent, did not apply to cross-examine Mr Aylett in relation to this further material or in relation to his explanation for not putting it to the court.  I will come back to the admission of the evidence in a moment and I refer now to the nature of the material.

17. Mrs Aylett suffers from fibromyalgia. This affects her ability to do housework, due to pain. Mr Aylett does a lot of the housework because his wife cannot. They have one child, eight years of age.  Mr Aylett provides a good part of her care.

18. Mrs Aylett also suffers from bipolar disorder, which I take to be a form of depression, and Mr Aylett has to ensure that she does not fail to take her medication.  In short, Mrs Aylett depends fairly heavily on Mr Aylett.  They have no close friends or relatives at Coober Pedy who could replace Mr Aylett.  A medical report confirming the diagnoses has been provided, but that medical report provides no supplementary information about the impact of the conditions.

19. With some hesitation I consider that the evidence should be admitted.  Mr Aylett probably should have realised it was relevant, but I can understand that due to nervousness or something like that, he was not thinking clearly on the morning. His solicitor certainly should have inquired about the impact of imprisonment because imprisonment was certainly a possible outcome for this offence.  The fact that the failure to disclose the material was in part attributable by the failure of the solicitor to make the appropriate inquiries is something that I think that works in Mr Aylett’s favour.  There is also the fact that the material is of considerable relevance.  In the circumstances, I consider that the interests of justice call for its admission. The further material raises an aspect of the matter that was not considered at all and that, in my view, the interests of justice require to be considered.

20. The impact on Mr Aylett’s family is a relevant matter.  Had the Magistrate been aware of it, he should have and I believe would have imposed a lesser sentence, so the appeal must be allowed and I must pass a fresh sentence. However, when considering the appropriate sentence, as I now propose to do, I have to consider all of the circumstances.

21. The case remains one, in my opinion, in which imprisonment is called for.  I say that because of the previous offence and because of the inadequacy of the explanation that Mr Aylett offered for his conduct on the occasion in question. However, the impact of imprisonment on Mr Aylett’s family warrants a lesser penalty than was imposed but, as I have said, Mr Aylett’s disregard of the law nevertheless warrants a penalty that will deter him and others.

22. I therefore set aside the sentence imposed. I order that the following sentence be substituted, namely, that Mr Aylett be convicted and that he be imprisoned for 14 days.

23. I have given careful consideration to the question of whether that sentence should be suspended under s 38 of the Criminal Law (Sentencing) Act 1988 (SA). In the end I am not persuaded that this is a case in which there is good reason to suspend the sentence of imprisonment. There is nothing, to my mind, in the circumstances of the offence to support that course. I recognise that the impact of imprisonment on Mr Aylett’s family supports that course, as also do his personal circumstances. He is a man of 50 years of age with only traffic offences in the past and only a few of them. He has had a previously unblemished record. He has had a good employment record and has previously not been imprisoned. But I also have to consider the seriousness of the offence. I refer in particular to matters that were canvassed on that topic in the decision in Cadd and, in particular, at 167-169. I also have to consider the need to maintain public confidence in licence disqualification as a penalty.

24. When a person is disqualified from holding or obtaining a licence and continues to drive, and particularly if others become aware of that, a degree of public cynicism about the significance of such a penalty is likely to be created. All the more so if the person is detected committing such an offence, and then receives a punishment other than immediate custodial punishment.  Again, on that point I refer to what I said in Cadd at 167-169.

25. So, while I have thought carefully about this matter, and I am truly reluctant to send Mr Aylett to prison for the first time, the requirement to impose a deterrent sentence, one that will deter both him and others from committing such offences, and the requirement to uphold the efficacy of licence disqualification orders, leads me to the conclusion that this is not a case in which there is good reason for the purposes of s 38 to suspend the sentence and accordingly I decline to do so. For those reasons, the sentence is as indicated by me.