Bradford v Police No. Scgrg-98-789 Judgment No. S6943

[1998] SASC 6943

BRADFORD v POLICE
[1998] SASC S6943

Magistrates Appeal

Debelle J

1. This is an appeal against sentence. 

2. On 3 June 1998 the appellant pleaded guilty in the Adelaide Magistrates Court to driving whilst disqualified from holding or obtaining a driving licence contrary to s91 of the Motor Vehicles Act.  He was sentenced by the Magistrate to a term of imprisonment for 14 days and ordered to pay costs totalling $117.  He appeals against the order of imprisonment on the ground that it is manifestly excessive and on the ground that it ought to have been suspended.

3. The appellant has served a very brief period in custody.  On 3 June he was taken to Yatala Prison and committed there.  Later on that day  his counsel gave notice of his intention to appeal.  The Magistrate suspended the order of imprisonment pending the hearing of the appeal and released the appellant on bail.

4. The offence occurred at about 2.30am on 20 January 1998 on South Road at Melrose Park.  When his car was stopped by police officers, the appellant admitted that he was disqualified from holding or obtaining a driving licence.  There was a passenger in the car.  The passenger drove the car from the point where it had been stopped by the police.

5. The passenger was a Mr B R C Jones.  He was called to give evidence.  However, the appellant did not give evidence.  The effect of the evidence given by Jones was that he and the appellant had worked that night at the appellant’s restaurant in Melbourne Street, North Adelaide.  After work they had gone to the Casino.  Jones drove the appellant’s car.  At the Casino Jones had drunk two glasses of whisky.  He said that, after drinking the whisky, his vision became blurred and he did not feel normal.  It appears that earlier that night Jones had taken two mersyndol tablets to relieve pain in his neck.  Jones believed that the conbined effect of the tablets and the whisky had affected him.  Jones told the appellant he was not feeling well.  They waited for a time not specified in the evidence.  Jones then told the appellant that he was not well enough to drive. The appellant decided to drive his motor car home. The appellant drove the vehicle until he was stopped.  It was Jones who drove the vehicle away after the appellant had been stopped by the police.  He was not cross-examined about his capacity to drive and whether, in truth, he was in fact fit enough to drive from the Casino.

6. The court was told that the appellant had an arrangement by which he could park his car in a carpark in Blyth Street.  The car could be parked in one of the reserved spaces on the ground floor within view of the attendant so long as the car was removed within a reasonable time, which was about two to three hours.  The appellant asserts that his motor car is a collector’s item, namely a Holden Torana XUI with a 398 engine, said to be rare. He asserts that his motor car is attractive to thieves.  He was reluctant to leave his car unattended in the city overnight for fear of it being stolen or damaged.  Apparently the car could be driven at high speeds because of the power of its engine.

7. The appellant resides at Holden Hill where he boards with an older brother and his brother’s wife.  He spends most evenings at his girlfriend’s home.  His girlfriend lives at Noarlunga.  The offence occurred at South Road at Melrose Park.  The appellant was driving to his girlfriend’s house at Noarlunga.  Jones also lives at Noarlunga, close to the house of the appellant’s girlfriend.

8. The appellant was represented in the Adelaide Magistrates Court by Ms Abbott, who also appeared for him on this appeal.  Ms Abbott submitted that the appellant’s driving was not a contumacious breach as that expression is defined in Cadd v Police (1997) 69 SASR 150. In the course of her submissions before the magistrate she referred to English v Police (unreported, Lander J 22 July 1997 Judgment No S6266) and to Harshazi v Police (unreported, Mullighan J 1 May 1998 Judgment No S6663), two decisions of this court where sentences of imprisonment for this offence had been set aside on appeal. 

9. The remarks made by the magistrate when sentencing the appellant show that he considered all relevant issues.  He noted the decisions relied upon by Ms Abbott but correctly observed that each case must be decided on its own merits.  He was not prepared to categorise the appellant’s driving as simply foolish but held it to be contumacious.  He said:

   “However, I am well reminded that each case must be decided and looked at on its own merits.  I do not consider that your driving in that morning was merely foolish.  I am of the view that it was deliberate driving but deliberate in that it was wilful and driving in total defiance of the law.”

And a little later he concluded:

“In my view, the moment that you decided to drive on that morning you did so with an attitude of total disregard of the order or orders of the disqualification.  Accordingly, in my view, it was contumacious driving and that attracts a term of imprisonment.”

The magistrate also had regard to the appellant’s record.  He said:

“Defendant, you must have known it was an offence to drive whilst disqualified in the manner you did.  You decided to ignore that prohibition.

Having regard to all the circumstances I consider that it will be inappropriate to suspend the term of imprisonment. The circumstances of driving are, however, relevant in determining the length of the term of imprisonment which I think should be spent in custody.  In all the circumstances I think the term of imprisonment will be 14 days.”

The magistrate then considered whether he should suspend the sentence.  He identified all the relevant issues.  He noted that the appellant had acted in general defiance of the law since 1988.  He considered that the time had been reached when a personal deterrent was required.  At the same time, he expressed the view that the penalty must not be disproportionate to the gravity of the offence.  After again referring to the decision in Cadd and others which have followed it, he concluded that he would not suspend the sentence.

1. In her eloquent submission on behalf of the appellant, Ms Abbott submitted that the magistrate had erred in holding that the offending was contumacious.  She relied on the decision in Harshazi  and in Johns v Police (unreported, Lander J 24 June 1998 Judgment S6729).  She submitted that the appellant had made arrangements for Jones to drive his vehicle, that those arrangements had broken down because of an unforeseen event, that the appellant and Jones had to travel to Noarlunga at a time when public transport was not available, that the appellant and Jones could not afford the taxi fare to Noarlunga, and that the appellant’s motor car was in danger of being stolen or damaged in the carpark.  She characterised the appellant’s conduct as foolish rather than a defiant decision to drive.

2. The submission fails to have regard to a number of factors.  As the magistrate observed, there was no urgency or emergency.  The appellant had ample time when at the Casino to consider what he should do.  Contrary to Ms Abbott’s submission, there was no need for the appellant and Jones to drive to Noarlunga.  The appellant lived at Holden Hill, a suburb considerably closer to the Casino than Noarlunga.  He could, therefore, have taken a taxi to that address.  No doubt he could have taken Jones with him.  There was no evidence that the appellant and Jones could not pay for a taxi to Holden Hill.  Indeed, there was no evidence that they could not pay for a taxi to Noarlunga.  The evidence of Jones is entirely silent on that point.  It is apparent from the magistrate’s reasons that he is extremely sceptical of the reasons advanced by the appellant, a conclusion which, it seems, was reinforced by the fact that the appellant had not given evidence on oath to explain the circumstances of the offence.  Similarly, there was no evidence that the carpark would not have been closed at night to prevent the risk of theft or damage.  The decisions in Harshazi and Johns are to be distinguished since, in those cases, the respective magistrates had not characterised the offence as contumacious.  In this case the magistrate was aware of the decision in Harshazi but nevertheless concluded this was a contumacious breach.  The appellant deliberately drove the vehicle knowing that he should not.  I do not think that the magistrate erred in characterising the offence as a contumacious breach.  His finding was open on the evidence and there is no reason to set it aside.

3. I share the views expressed by Lander J in English that it is important for a magistrate sentencing for this offence to be satisfied of the circumstances in which the offence was committed.  No doubt, in consequence of the decision in Cadd, many offenders will claim the offence was not contumacious.  In rare instances that may be clear on the police allegation but, as a general rule, magistrates will need to enquire carefully into the circumstances surrounding the offence.  Generally speaking, they should require evidence to be given on oath by the defendant and any other witness on whom the defendant relies.  Unless that practice is adopted and the assertions of a defendant are tested, there is a risk that the orders of disqualification will be treated with contempt.  As Lander J said in English, a submission that an offence was not committed in circumstances of contumacy should not be too readily accepted lest penalties provided by s91 be deprived of any deterrent effect.

4. I should add that I share the views of Perry J in Bates v Police (unreported, 19 November 1997 Judgment No S6430) that the requirement for the offending to be contumacious is to add words to s91 of the Motor Vehicles Act which simply are not there with the consequence that the effect of s91 is circumscribed. I should add that those views did not govern or affect my approach to this appeal since I am clearly bound to apply the majority decision in Cadd.  I also share the view of Perry J that a person will be guilty of a contumacious breach of the section if that person, knowing 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 forms of duress.  These views have been the subject of comment by both Mullighan J in Harshazi and by Lander J in Johns.   I respectfully share the views expressed by Lander J.

5. Ms Abbott submitted that, even if the driving was contumacious, the magistrate erred in ordering a term of imprisonment in that the magistrate failed to take properly into account the appellant’s lack of prior offending of this type and the mitigating circumstances she had outlined. The penalty prescribed by s91 for a first offence is imprisonment for a period of six months. Further, as the court held in Cadd, if the offending is found to be contumacious, imprisonment, even for a first offender, must be the starting point when considering the appropriate penalty, although regard must also be had to the circumstances of the offending or the of the offender or both in determining whether to order a lesser penalty. If the offence has been found to be contumacious, it seems unlikely that the circumstances of the offending will, as a general rule, militate against the seriousness of the offence. The appellant’s record was, on his own admission, appalling.  The circumstances of the offending did not mitigate its seriousness.  The magistrate believed that the time had come when a personal deterrent was required.  In addition, the element of general deterrence cannot be overlooked. This offence is prevalent and notoriously difficult to detect.  The seriousness of the offence is indicated by the severity of the penalty even for a first offence.  In my view, the submission must fail.

6. Finally, Ms Abbott submitted that the magistrate had erred in deciding not to suspend the sentence.  She relied in the circumstances set out in her affidavit.  None of those matters justify suspending the sentence.  The magistrate carefully considered whether he should suspend the sentence. The appellant’s record includes several driving offences.  It is apparent that he has learned little from the penalties imposed upon him.  I cannot disagree with the magistrate that this offending shows disregard for, and wilful defiance of the law.  The question I have to determine is not whether I would have suspended the term of imprisonment but whether it has been demonstrated that the magistrate has erred in the exercise of his discretion not to do so.  No ground for interfering with the exercise of the magistrate’s discretion has been demonstrated.

7. For all of these reasons, I dismiss the appeal.