Beavis v Police - [2006] SASC 365

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BEAVIS v POLICE
[2006] SASC 365
Judgment of The Honourable Justice Anderson
21 December 2006
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - REMISSION FOR REHEARING
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appellant convicted for driving whilst disqualified - the sentencing Magistrate found in relation to the offence of driving whilst disqualified that the appellant's offending was contumacious and imposed a sentence of imprisonment of 28 days - appeal against sentence of imprisonment - whether the Magistrate erred in finding that the appellant's driving was contumacious - whether the Magistrate should have heard evidence from the appellant before making such a finding - evidence taken from appellant on appeal - whether the appellant's driving was contumacious on the evidence given - Held: appeal allowed - Magistrate erred by failing to find that he disbelieved the appellant before making a finding that the appellant's driving was contumacious - it was a reasonable possibility that the appellant was confused and misunderstood the Magistrate in respect of the penalty given - the appellant's driving was not contumacious - good behaviour bond required.
Police v Cadd (1997) 69 SASR 150; White v Police [2000] SASC 127; Rhodes v Police [1999] SASC 191, considered.

BEAVIS v POLICE
[2006] SASC 365
Magistrates Appeal
ANDERSON J
Introduction

This is an appeal from a conviction for driving whilst disqualified. Mr Beavis had earlier been disqualified from driving for 15 months. The disqualification commenced on 11 July 2005 for an offence of driving under the influence on 9 December 2004.
The offence that is the subject of this appeal occurred on 8 May 2006. The appellant pleaded guilty to the offence. The Magistrate sentenced the appellant to imprisonment for a period of 28 days and declined to suspend the sentence. He found that the appellant’s driving was contumacious. This appeal relates only to whether the sentence of imprisonment imposed by the Magistrate should be suspended.
Background
On 8 May 2006 the appellant was stopped in a random motor vehicle check. The check revealed that the registered owner of the vehicle, the appellant, was at the time he was driving, disqualified from driving for 15 months as a result of the previous court order. When apprehended, the appellant is alleged to have stated that he knew that he was disqualified from driving by the court order, but he said that he thought that the disqualification was for a six month period, and that the period of disqualification had been served.
The appellant also told the police officers that the Magistrate, when disqualifying him from driving, did not explain the consequences of driving whilst disqualified. That is at odds with the details recorded on the court record where there is an endorsement that the appellant was warned as to the consequences of driving whilst disqualified.
At the same time that the appellant was disqualified, the Magistrate also made an Alcohol Interlock Order and it may be that the appellant was confused by that order. I will deal with this later.
On 30 September 1992 the appellant had been convicted of three counts of driving whilst disqualified in October and December of 1991. He was imprisoned for a cumulative total of two and a half months for those offences. He was 21 years old at the time he committed those offences. He is now 36.
The Magistrate’s sentencing remarks
The Magistrate said that the appellant had formed the view that the disqualification was for six months, and “without any inquiry, took it upon himself to drive”. His Honour correctly stated that the appellant had a bad record in that he had been dealt with for three previous offences for driving whilst under disqualification. On the face of it, the Magistrate was also right in saying that this should have had some impact on the appellant’s thinking and therefore the need for him to make inquiry about his right to drive after receiving his latest period of disqualification.
The remarks on penalty by the learned Magistrate reveal an error. The basis on which the appellant pleaded guilty was that he was of the mistaken view that the period of disqualification had expired. He believed the period to be six months.
The Magistrate said at [7]:
I am mindful that there is discretion as to how the court determines penalty, but that it is inevitable that I must find the defendant’s driving is contumacious.
As the respondent concedes, that conclusion is not logical because it is not consistent with a claimed misapprehension by the appellant as to the term of the order. If he did in fact misapprehend the term of the order he can not deliberately have disobeyed the order of the court, and therefore it is not inevitable that his driving was contumacious.
The learned Magistrate made no finding that he disbelieved the appellant’s submission in relation to his claimed misapprehension. In the absence of such a finding the Magistrate is in error. Mr Jacobi, for the respondent conceded the error and that the proper course would be to hear evidence from the appellant so that the prosecution could then cross-examine the appellant.
Evidence taken on appeal
Both counsel requested that I hear the evidence rather than sending the matter back to a Magistrate. I agreed to hear the evidence. The appellant relied on an affidavit as to the circumstances of the offence and gave additional brief evidence. He was cross-examined as to his belief by Mr Jacobi.
I formed the view that the appellant had considerable difficulty in understanding the questions he was asked. This applied to questions from his counsel, Ms Davis, Mr Jacobi and myself. He appeared to be trying to understand but nevertheless not quite comprehending the point of the question. I remind myself that he was unrepresented before the Magistrate and he told me that he felt nervous when he appeared on that occasion and also before me. He said he was also nervous when apprehended by the police. As Ms Davis said, he had difficulty in both understanding and articulating himself.
Mr Jacobi placed reliance on three matters in his submissions. He said that the appellant had not told the truth to the police when he was apprehended. The only information on that topic is contained in the Apprehension Report which is of course just a summary, and a very brief summary at that, of what happened at the time. This report states that the appellant asserted that he was not warned by the Magistrate of the dangers of driving whilst disqualified. In his evidence before me, the appellant said that he could not recall being warned. I am not prepared to find, on the very limited evidence available, that the appellant has changed his evidence on this topic. The court record shows that he was warned.
Mr Jacobi also submitted that the appellant, if he had the belief that he was only disqualified for driving for six months, had no reason not to have driven between 11 January 2006 and 8 May 2006 when he was apprehended, that is, after six months had elapsed. The appellant however said that he hadn’t driven before the occasion in May because he really had no need to. He had taken to riding a bicycle to and from work and elsewhere whilst he was disqualified, and that it was only because he needed to pick up some parcels, which he could not carry on his bicycle, that he drove the car on this occasion. In addition, he said in his evidence that his car was undergoing repairs during that period.
Finally Mr Jacobi submitted that in view of the appellant’s previous imprisonment, it was highly unlikely that he would not have been aware of the consequences of driving whilst disqualified. The fact is that he was imprisoned many years ago, and that does to some extent cut both ways. This man has been in prison previously when he was 21 years of age, and did not like it. It probably goes in his favour that it is highly unlikely that he would be so stupid in the circumstances of this matter to run the risk of being imprisoned again, given that he had a secure job at the time.
The appellant’s affidavit suggests that he did have a belief as to a period of disqualification of six months. He suggested that he may have confused the period of six months from something said by the Magistrate which related to the Alcohol Interlock Scheme. The scheme set up under Division 5A of the Road Traffic Act 1961 (SA) (“the Act”) applies where a court orders a period of disqualification of six months or more – s 49(1)(b).
Having seen the appellant and formed my opinion regarding his limited ability to quickly understand and analyse what is being said to him, I think there is a reasonable possibility that he did have some mistaken belief regarding his period of disqualification. No doubt the Magistrate at the time would have firstly explained the scheme to him on the basis that he was eligible under the scheme because his period of disqualification exceeded six months. There is every reason in my view to accept that the appellant was confused in this area, and had an impression that six months was the period of disqualification.
This is not a case of looking at the circumstances in which the appellant drove on the occasion in question to see whether that throws any light on the question of whether his driving was contumacious. This is simply a question of what was the appellant’s state of mind and what was his belief when he was stopped on 8 May 2006.
Conclusions
I have formed the view that this man with a previous term of imprisonment, would not have been so stupid to risk the chance of being imprisoned again for perhaps even a longer period than he was many years ago. I think he did have some mistaken belief regarding his period of disqualification because of the discussions regarding the Interlock conditions and that in the circumstances his driving on 8 May 2006 was not contumacious.
In my view, the Magistrate erred in his finding of contumacious driving because he misdirected himself, as I have earlier pointed out. But, in any event, having heard the appellant’s evidence, I do not regard his driving as contumacious. The test for such driving is set out in the decisions of Police v Cadd (1997) 69 SASR 150 at 179 per Mullighan J, White v Police [2000] SASC 127 per Mullighan J at [8], and Rhodes v Police [1999] SASC 191 per Nyland J at [14].
I would therefore allow the appeal, set aside the sentence of imprisonment, and in lieu thereof, record a conviction on the condition that the appellant enter a bond to be of good behaviour for a period of 18 months. The bond is to be in the sum of $1,000. I will discuss the conditions of the bond with Mr Beavis.