Bates v Police No. Scgrg-97-1397 Judgment No. S6430

[1997] SASC 6430

BATES  v  POLICE

Perry J

The appellant appeals against the sentence imposed upon him following his plea of guilty before a Magistrate constituting the Magistrates Court sitting at Adelaide to three traffic charges, all arising out of an act of driving on 14 April 1997. The charges were that on that day on Bolivar Road at Paralowie he drove a motor car which was unregistered (s9 of the Motor Vehicles Act 1959), which was uninsured (s102 and at a time when he was disqualified from holding or obtaining a driver’s licence (s91).

The appellant was represented in the court below by counsel who made submissions on his behalf.  The learned Special Magistrate gave short ex tempore reasons and proceeded to enter a conviction on each of the three counts.

On each of the first two counts, that is, driving an unregistered and uninsured vehicle, he imposed fines of $400, a total of $800.  On the third count, that is, driving whilst disqualified, the learned Special Magistrate imposed a sentence of seven days imprisonment.

As well, on each of the second and third counts he imposed a four months licence disqualification to operate cumulatively, that is, eight months in all.

There is one ground of appeal, namely, that the sentences in respect of all three counts were manifestly excessive.

Affidavits were put before the Court on the hearing of the appeal sworn by the police prosecutor, Ms Julie Fahy, and by counsel who appeared for the appellant in the court below, namely, Ms Lambert.

From the prosecutor’s affidavit, it appears that the facts given to the learned Special Magistrate were that on the morning of the day in question police travelling on Bolivar Road, Paralowie, observed what turned out to be the car driven by the appellant travelling in the opposite direction.  They conducted inquiries, as a result of which it appeared that the registration had expired seven months before.  As a result of that information, the police officers called on the appellant at his home address at Paralowie later on the same day.  The appellant admitted that he owned the car, which was standing in the drive way, and that he had been driving it earlier when observed by the police officers.  He admitted that he knew that the vehicle was neither registered nor insured.  He said that he had driven it in that state in order to go to Wingfield to get some parts for it.

The police officers then made inquiries as to the appellant’s licence, as a result of which they learned that he had been disqualified from 1 April 1997 to 31 July 1997.  The appellant admitted that he knew of the disqualification, but said that he had driven for the reason previously indicated.

The learned Special Magistrate was informed that the appellant had two previous convictions.  In May 1993, he was convicted in the Magistrates Court on charges of driving an unregistered and uninsured vehicle.  On those charges he was fined and lost his licence for three days.

On 4 March 1997, in the Magistrates Court at Elizabeth, he was again convicted of driving an unregistered and uninsured vehicle, as to which he was fined and subjected to the licence disqualification to which I have already referred, namely, a licence disqualification of four months.

The hearing on 4 March 1997 proceeded ex parte, and the appellant was notified of the licence disqualification by letter.  No doubt that accounts for the fact that the licence disqualification was not ordered to commence until a month after the court hearing.  Be that as it may, the appellant admitted in the court below that he received the letter advising of the disqualification.

It is not unimportant to note that the offence the subject of the present appeal was committed only thirteen days after the commencement of the period of that licence disqualification.

The appellant was aged 23 years and had been unemployed for about five years leading up to the offence now in question.  At the time, he subsisted on a sole parent pension.

He came to be a sole parent in unusual circumstances.  At the age of 19, his older sister, while incarcerated during a remand for offences being dealt with in the Magistrates Court, committed suicide in custody.  While she was in gaol, the appellant had the care of her two children, aged five and six years.  Following her death, the appellant took on the full-time responsibility for looking after the children and had custody of them at the time of the offence now in question.

The learned Special Magistrate was informed that if he imposed a custodial term of imprisonment there was no family able to care for the children.  It appears that the biological father had no contact with them, and the only other near relative was an 85 year old grandmother.

However, from her affidavit, it appears that Ms Lambert put to the learned Special Magistrate:

"The only possibility was that a friend could care for the children for a short period or they would have to go into care, and this was not desirable."

In the learned Special Magistrate’s notes the matter is put a little more positively:

"Defendant looking after deceased sister’s children 9 and 10.  If imprisoned, others will look after children for him - has made arrangements."

In the course of his ex tempore sentencing remarks, the learned Special Magistrate said:

"...... I take all those matters put by counsel on your behalf into account in imposing penalty on you.

I regard the offending as relatively serious - you were driving only thirteen days after the disqualification commenced and under the very circumstances the court sought to protect the public from and punish you for by imposing a disqualification.  I bear in mind the effect of the sentence on the children you are caring for but the effect of the sentence on the persons reliant on an offender should be given less weight than some other factors in sentencing, and if the period of imprisonment is limited, the effect should be negligible in any event.  I do not regard it as an appropriate case for suspension."

In her submissions, Ms O’Connor who appeared on behalf of the appellant, put the argument that the learned sentencing Magistrate erred in failing to consider whether the circumstances of the appellant and of the offence were such that they provided a basis for the imposition of a penalty other than a term of imprisonment.

Although the sentencing remarks are short and do not expressly refer to alternatives to imprisonment, there is no reason to suppose that the Magistrate, who is an experienced Magistrate, did not have regard to the possibility of imposing a sentence other than a sentence of imprisonment.

She next put that the learned sentencing Magistrate ought to have suspended the term of imprisonment which he imposed. She submitted that there existed "good reason" within the meaning of s38(1) of the Criminal Law (Sentencing) Act 1988 to justify a suspension, and the learned sentencing Magistrate erred in failing to do so. She emphasised the relative youth of the appellant, his previous good character, and the effect upon the two young children of whom he had custody. She also drew attention to the plea of guilty, and the fact that the appellant had exhibited genuine contrition.

Of course, it is trite law that this Court will not interfere with the exercise of a discretion simply on the ground that this or another court might have exercised the discretion in a different way if seized of the matter.  To justify interference with the exercise of the discretion, the appellant must demonstrate an error of principle or a misapprehension of fact.  The exercise of a discretion may also be interfered with if, absent any such patently vitiating feature, it nonetheless appears to be wholly erroneous in the sense that on no view of the facts could it be justified.

The only possible overt error on the part of the learned Special Magistrate appears in his observation:

"... the effect of a sentence on persons reliant on an offender should be given less weight than some other factors in sentencing ......"

The effect on dependants is now a matter which must be taken into account by reason of the codification of the common law principles relating to sentencing which finds expression in s10 of the Criminal Law (Sentencing) Act. In particular, pursuant to that section, the court must have regard to:

"(n)   The probable effect any sentence under consideration would have on dependants of the defendant."

I think it wrong to approach the task of sentencing on the footing that any of the subparagraphs which appear in s10 of the Criminal Law (Sentencing) Act must necessarily be given less weight than other factors appearing in the other subparagraphs.

Notwithstanding that observation, it might be thought that some support for the view expressed by the learned sentencing Magistrate might be found in dicta of Bollen J (with whom King CJ agreed) in R v Adami  when he said:

"There is no doubt, of course, that the incarceration of almost anybody causes an adverse effect, often financial, on dependants.  Certainly it does for every married man, every father, who is sent to prison.  If that were to be taken into account in the normal run of things, there would be no complaints of overcrowding in our prisons.  The court may take effect on dependants into account to ameliorate a penalty in exceptional cases."

Properly understood, I do not think that the explanation of the principle which appears in that passage is at odds with s10(n) of the Criminal Law (Sentencing) Act. Although regard will be had in all cases to the effect of the imposition of a custodial sentence on dependants of the defendant, it will only have a significant effect on penalty if the effect which it has in that respect in the particular case is out of the ordinary.

Viewed in that light, I do not think that the observation made by the learned sentencing Magistrate as to this aspect of the matter is indicative of error.

I had occasion to address the question of the allowance to be made in sentencing of the effect on dependant children in Walsh & Anor v Department of Social Security. That case concerned an appeal against terms of imprisonment of three and four months respectively imposed upon a married couple who had three young dependant children. That sentence followed the appellants’ plea of guilty to a number of counts of making false statements under the Social Security Act 1991 (Cth).

On appeal I held that viewed discretely, neither sentence disclosed appealable error.

However, evidence put before the Court indicated that the three children were asthmatic and had been hospitalised on a number of occasions with asthma attacks.  A medical practitioner furnished a report which indicated concern at the effect of the gaol terms "on the physical and mental well being of this family unit".

S16A(2)(p) of the Crimes Act (1914) (Cth) is in terms which are indistinguishable from s10(n) of the Criminal Law (Sentencing) Act.

I allowed the appeal by the mother of the children, for whom I substituted an order allowing conditional release under s20 of the Crimes Act.  In the course of my judgment I observed:

"Various international instruments which have been entered into by Australia emphasise the protection by the society and the State of the family as the natural and fundamental group unit of society,  and preservation of the rights of children.   Although such international instruments do not form part of Australian law,  they serve to underscore the importance of provisions such as s16A(2)(p) of the Crimes Act, which, where possible, should be construed and applied consistently with them.   So that while we should always bear in mind the principles which find expression in relevant international instruments, particularly those which have to do with human rights, recourse to them in this case is hardly necessary, as s16A(2)(p) of the Act is clear and unambiguous in its terms.

It appears to me that, bearing that provision in mind, either the learned sentencing magistrate failed to pay sufficient regard to the effect upon the appellants’ three young children of a custodial sentence imposed upon both parents, or, on the basis of the additional material which has been placed before me for the purposes of the appeal, recognition of the need to have regard to the dependant children should result in intervention by way of appeal in a form appropriate to ensure that the welfare of the children is adequately protected."

Here it seems to me that the fact that the appellant had custody of the two young children of his deceased sister is a matter which, consistently with the observations made by me in Walsh, called for careful consideration by the sentencing court.

Nonetheless, if it was simply a matter of the children being looked after by a friend for a short period of seven days, I do not think that the need to give consideration to the effect of the sentence upon the children would be a factor serving to deflect the court from imposing a custodial term of imprisonment if it otherwise was appropriate to do so.

In my opinion, this was a contumacious offence within the meaning espoused in Police v Cadd and Ors,  and, subject to what I am about to come to, there were no other features in the case which could have justified the imposition of anything less than a custodial term of imprisonment.

But there is another aspect of the effect of a custodial term upon the children in this case which should be taken into account.  In Ms Lambert’s affidavit, she deposes to the following:

1. I informed the Learned Special Magistrate that the children were aware that the appellant may be imprisoned and they were extremely distressed at this prospect.  The children had expressed the view to the appellant that their mother had already died in jail and they were very fearful that the same thing would happen to the appellant if he was imprisoned.

1. I further submitted that if a term of imprisonment was to be imposed any term of imprisonment would have a very detrimental effect on both of the children in view of their past experiences.  I further informed the Learned Special Magistrate that a psychological report had not been ordered in relation to the children because the appellant’s instructions were that he did not want to put the children through any more trauma.  The appellant was of the view that if the children were to sit down with a psychologist for a number of hours and go over the death of their mother and talk about their feelings if their uncle went to jail, this would just cause them even more distress."

The children are at what I would expect to be an impressionable age.  It is not difficult to imagine that even a short term of incarceration of their uncle, who is in loco parentis, could have a serious effect on their emotional well being.

In my opinion, the learned sentencing Magistrate erred in failing to give sufficient recognition to this aspect of the matter.  In that sense, the sentencing discretion miscarried.  It is incumbent upon me to exercise it afresh.

In doing so, I would allow the appeal for the purpose of making an order that the term of imprisonment of seven days imposed by the learned Special Magistrate be suspended upon the entry by the appellant into a twelve month good behaviour bond with such special conditions, if any, as might be suggested by counsel for the respondent.

Before parting with the matter, I should say that during the course of argument on the appeal, the question was debated as to the import of the decision of the Full Court in Cadd (supra) and in particular the meaning of the words "in the ordinary case of contumacious offending" which appear in the judgment of Mullighan J in that case.  He used those words to identify circumstances which would ordinarily warrant the imposition of a custodial term of imprisonment, although he added the qualification:

".. but the circumstances of the offending or the offender or both may dictate some less severe form of punishment ....":

The approach of Mullighan J in that respect was common to the view of the majority of the five Judges in that case.

In his reasons for judgment Mullighan J said that he used the word "contumacious" in the sense explained in Witham v Holloway.   He said further:

"It means 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 disobedience to the authority which imposed it."

The passage referred to by Mullighan J in the judgment of the High Court in Witham v Holloway is in the judgment of McHugh J, who delivered a separate judgment from that jointly delivered by Brennan, Deane, Toohey and Gaudron JJ.  In his judgment, McHugh J adopted the dictum of Lord Wilberforce speaking on behalf of the House of Lords in Heatons Transport (St Helens) Ltd v Transport & General Workers Union,   where Lord Wilberforce "was at pains to point out that wilful breach was not the same as ‘contumacious or insulting behaviour or interference with the administration of justice’".

In the judgment of the majority in Witham v Holloway, it was put this way:

"However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious."

In AMIEU and Ors v Mudgimberri Station Pty Ltd,  in their joint judgment, Gibbs CJ and Mason, Wilson and Deane JJ spoke of "wilful disobedience to a court’s order, especially if it occurs in circumstances where the conduct amounts to public defiance.....".

Although contumacy has been defined as "wilful disobedience to the summons or order of the court",  it appears from these authorities that the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance.  At least, that is the position in cases of contempt of court.

Be that as it may, the words in s91 of the Motor Vehicles Act 1959 are relevantly:

1. A person must not drive a motor vehicle on a road while his or her licence is suspended or while he or she is disqualified from holding or obtaining a licence.

Penalty:  for a first offence - Division 7 imprisonment"

Unassisted by the authority of the decision of the Full Court in Cadd, one might have thought that to regard the penalty of imprisonment as reserved for cases involving a contumacious breach of the section, would be to add words which do not appear in the section, even when considered in conjunction with s11 of the Criminal Law (Sentencing) Act.

Be that as it may, I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.

Applying that approach to the circumstances of this case, I have no doubt that the driving of the appellant was contumacious in the sense in which that expression has been adopted in Cadd.  The appellant well knew that he was disqualified from driving; the passage of driving was not insubstantial; and the appellant was not pressured to drive by reason of any emergency or other situation of duress.

Ms O’Connor pointed out, as though it was a mitigating factor, that the appellant was endeavouring to obtain parts for his vehicle which was unroadworthy.  But that is a circumstance of aggravation rather than of mitigation.  The offence must be regarded as more serious if, not only was the appellant driving whilst unlicensed, but his vehicle was unroadworthy.

However, despite those considerations, the feature of the case which, in my opinion, justifies the intervention of this Court is the peculiar and unusual situation of the appellant vis a vis the two children dependant upon him, more particularly the effect upon them of any incarceration of the appellant.

The appeal will be allowed on the terms which I have indicated.

I make it clear that the orders made by the learned sentencing Magistrate other than the penalty of imprisonment will remain in full force and effect.

I will hear the parties as to costs.