Ballone v Police No. Scgrg-97-1594 Judgment No. S6534

[1998] SASC 6534

BALLONE  v  POLICE

Matheson J (ex tempore)

The appellant was charged on complaint with the following counts:

1. On the 7th day of September 1997 at SMITHFIELD PLAINS in the said State, [she] drove a motor vehicle on a road namely Crittenden Road, while she was disqualified from holding or obtaining a licence.

1. On the 7th day of September 1997 at SMITHFIELD PLAINS in the said State, being the driver of a vehicle namely a motor sedan and on being asked questions by a member of the Police Force for the purpose of ascertaining the name and place of residence of the said driver did not truly answer such questions."

She pleaded guilty and was convicted in the Magistrates Court at Elizabeth.  She was sentenced to imprisonment for a period of ten days,  and ordered to pay $117 costs.  She has appealed on the ground that the penalty is manifestly excessive and in particular alleges that his Honour erred in not suspending the sentence. 

The appellant is 30 years of age, and has some relevant previous convictions.  On 15 September 1995 in the Elizabeth Magistrates Court she was sentenced to seven days imprisonment for driving whilst disqualified, which was suspended upon her entering into a bond in the sum of $100 to be of good behaviour for six months.  On 12 June 1997 in the same court she was charged with exceeding the prescribed concentration of alcohol in her blood, fined $500 and had her licence suspended for six months.

The maximum penalty for driving whilst disqualified for subsequent offences is two years imprisonment and for failing to truthfully answer questions the maximum penalty is a fine not exceeding $1,000. 

There does not appear to be any dispute as to the facts which were as follows:

At about 2.30pm on Sunday the 7th of September 1997, police were travelling west on Crittenden Road, Smithfield Plains, when they saw a white Holden Torana registration number SA SSL-506 in poor condition travelling east on Crittenden Road Smithfield Plains.  Police made a u-turn to travel in the same direction behind the Torana.  This vehicle was subsequently stopped and a short conversation was had with the female driver who identified herself as ‘Yvonne Lynch’ of 16 Palari Avenue Munno Para.  A motor vehicle check was conducted which revealed the registered owner to be Naomi Ballone, the appellant.  I.D. was finally produced although the appellant first stated that she did not have any.  A licence check was conducted which revealed that she was disqualified by Court.  She was subsequently arrested.

The appellant stated that she was aware she was disqualified from driving.  She gave a false name and address because she was scared of going to jail as she knew she was disqualified but was driving because she had to pick her boys up from their father’s at Evanston.

The appellant was represented before the learned magistrate by counsel who made detailed submissions.  They included the following:

"(a)    That the appellants previous conviction for driving disqualified arose out of disqualification by the Registrar of Motor Vehicles and that she had not been driving her motor vehicle when the demerit points had been incurred.

(b)     That the appellant admitted the Police allegations with the exception that she wasn’t cautioned over the condition of her motor vehicle.

(c)     That the appellant is a single mother of 2 children aged 10 years and 2 years.

(d)     That the appellant had been in a violent relationship with the father of the 10 year old child which had broken up after he had threatened to kill that child when he was 18 days old.

(e)     That the appellant[‘]s 2 year old child had been conceived as a result of date rape by a close family friend which rape she was too embarrassed to report to the Police and that she had had that child against her family’s wishes.  His name is STEPHEN BALLONE and he was born on 10 February 1995.

(f)     That after the birth of the child she didn’t want the father to have any contact to him.

(g)     That the Department of Social Security required her to seek maintenance from the father of the child.  She didn’t seek it but pretended that she had and the amount of her benefit was reduced as if she was getting such maintenance.  That she got into financial difficulties because her benefit had been reduced and, out of necessity, she approached the father for payment of maintenance of his child when the child was one year old.

(h)     That the father agreed to pay maintenance of $356.00 per month for the child provided that the appellant gave him contact to the child.

1. That the appellant agreed to allow the father contact in her presence each fortnight for 4-5 hours.

(j)     That about 5 contact visits took place before about 12 June 1997.

(k)     That prior to 12 June 1997 the father told the appellant that he wanted unsupervised contact to the child.  The appellant felt insecure about this but agreed.  Prior to leaving the child for the first unsupervised visit she had a couple of glasses of wine and a lemonade to calm herself down and then drove her car intending to buy nappies and milk for the child to use during the visit when she was pulled over by the Police and a Random Breath Test was performed as a result of which she was found to be marginally over the limit and was charged with and convicted of exceeding the prescribed concentration of alcohol and disqualified from driving for 6 months.

(l)     That after the disqualification was imposed the appellant’s mother drove the child to contact with the father.  The father had regular unsupervised visits from 10am Saturday to 5pm Sunday.  The appellant stayed with her mother at Elizabeth during contact.

(m)   That after being disqualified the appellant planned to fix her car and sell it.

(n)     That the appellant agreed with the father that he would have contact to the child and her 10 year old child from 5pm on 5 September 1997 to 5pm on 7 September 1997.  The appellant’s mother was to deliver the children to the father for contact and the father was to return the children after contact.

(o)    That on 5 September 1997 the appellant’s mother delivered the children to the father for contact and the appellant stayed with her mother for that weekend.  That the appellant’s mother was ill with heart trouble and had just learned that she had to have a bypass operation.

(p)     That at about 11.30pm on 6 September 1997 the appellant received a phone call from the father in which he told her that his job at Port Lincoln had been brought forward a day and that he was being picked up by his supervisor at between 8.30am and 9.00am on Sunday 7 September 1997 and asked her to organise to collect the children from his place.  The appellant agreed to do this.

(q)     That the appellant and her mother stayed up late on Saturday night 6 September 1997 whilst the appellant’s mother wrote her Will.

(r)     That because the appellant knew that her mother was ill under stress and on medication the appellant did not want to put her under more pressure by asking her to collect the children the next morning.  Therefore she decided to drive from Elizabeth to Gawler to collect the children.

(s)     That the appellant was born on 2 April 1967 and was the middle child of 7 children she was brought up in Brisbane.  Her parents separated when she was three years old.

(t)     That the appellant’s memories of her father were that of a drunken violent person.  Her mother fled from her father with her children and moved to Whyalla and worked for BHP for several years.  Her father found her mother in Whyalla as a result of which her mother moved to Adelaide in order to avoid the father.  On two occasions later the father found the mother in Adelaide and the mother moved house.  Restraining orders were ineffective in keeping the father away from the mother and the children.

(u)     That the appellant was educated wherever the family lived.  She could not concentrate at school because of problems at home.  She completed half of year 10 and left school at age 16.  Upon leaving school she moved out of home and lived with her sister and got various jobs as a shop assistant.

1. That when she was 19 she became pregnant with her son who is now 10 years old.  When that child was 18 days old, the father of that child threw the child up against a wall injuring him and he also injured the appellant as a result of which she fled the home, leaving the child with the father, for a short time until she could summons assistance.  During this time she didn’t know whether or not her child was alive or dead.  Police proceedings were commenced against the father but the Police didn’t proceed with these.  The appellant has been permanently scarred by this incident.

(w)    That the appellant has had work in the hospitality industry, doing bar work and cleaning motel rooms.  She last worked 12 months ago part time at the Tanunda Hotel.  She left this job because it became too difficult for her to arrange child care.

1. That the appellant’s 10 year old child was depressed and had talked of killing himself.  He had been bashed up and robbed by older children near his home.  After this happened he went to live with the appellant’s mother.  He had refused to return home to the appellant because of fears for his safety.  He was with the appellant at the time she was apprehended on these charges and was worried about the prospect of the appellant serving a gaol term.  He also knew that his Nanna was very sick.

...

(z)     The appellant was very worried about the health of her mother who had been diagnosed as a diabetic and had heart problems.  She had been told that her mother was unlikely to regain her health.

(zi)    That the appellant was trying desperately hard to make a stable home for her children.  She had arranged to transfer her housing trust housing to a safer area closer to the father of Steven which was also linked to a public transport route and this change was imminent.  She had sold her car the weekend after being apprehended for driving disqualified.  She had personal counselling at the Parafield Gardens House and was now on a waiting list for further treatment.

(zii)  That she was distressed and hysterical at her first interview with me on 8 September 1997 and I had suggested that she see a doctor for treatment.  She did so and the doctor placed her on medication the same day but she was still suffering from sleeplessness, nervousness and anxiety and I considered her to be quite ill.  She was frightened of losing her children whilst undergoing any medical treatment."

The appellant's counsel tendered a report from Dr Prasad dated 28 October, which concluded with this passage:

"I feel any term of imprisonment will definitely cause severe psychological trauma to this lady and her children and I would strongly advise that this cause [sic] of action should not be taken under any circumstances." 

The learned magistrate in his remarks seems to me to have given most sympathetic consideration to the matters that were put to him in mitigation and to display appropriate compassion to the appellant.  Those matters were  repeated by counsel for the appellant before me.  However, I have no doubt that his Honour was correct in concluding that the offence was a deliberate one, and having regard to all the circumstances, not least the appellant’s previous convictions I am not persuaded that his Honour erred in not suspending the sentence.  For those brief reasons the appeal will be dismissed.

There will be no order as to costs.