Buttigieg v the Police No. Scciv-03-1244

[2003] SASC 363

BUTTIGIEG  v  THE POLICE

[2003] SASC 363

Magistrates Appeal (Criminal)

1. BLEBY J: This is an appeal against sentence. On 8 August 2003 the appellant pleaded guilty in the Magistrates Court to one count of driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence contrary to s 91 of the Motor Vehicles Act 1959. The appellant was sentenced to 14 days imprisonment, which sentence was suspended upon the appellant entering into a 12 month good behaviour bond.

2. On 8 January 2003 the appellant was disqualified from holding or obtaining a driver’s licence for a period of six months.  That disqualification period was due to end on 8 July 2003.

3. The offence the subject of this appeal occurred on Wednesday, 25 June 2003 at about 2.40 am at Bedford Park, fourteen days prior to the end of the disqualification period.  Police were conducting random breath tests on drivers of vehicles travelling south on South Road, Bedford Park, when a red Commodore sedan driven by the appellant was directed to turn into the breath testing station. Instead, the vehicle slowed and turned into Gum Terrace, Clovelly Park where it stopped at a car yard.  Police approached the appellant and it was revealed that he was disqualified from holding a driver’s licence.  He tested negative to an alcotest.  The appellant, when questioned by police, said that he was aware that he was disqualified from driving but that someone had called him and asked him to check his parents’ car yard as it may have been broken into.  It appears from the sentencing remarks of the Magistrate that the person who had asked the appellant to go to the car yard was the appellant’s father.  The appellant was 19 years of age at the time of the offence and was employed at his parents’ car yard.

4. The police prosecutor asserted in his affidavit tendered before me that the Magistrate was informed that the appellant had previously been convicted of driving whilst disqualified on 22 August 2002 and had received a fine of $500 in respect of that offence.  This was not referred to in the Magistrate’s reasons and the appellant denies that any prior like offences were alleged before the Magistrate.  Rather, he says, only one prior matter of driving at a speed dangerous was alleged, being the offence which led to the licence disqualification.  The prosecutor, in a subsequ­ent affidavit, defers to the recollection of the appellant’s counsel that no reference was made to that earlier conviction of driving whilst disqualified.  The respondent’s further affidavit was tendered without objection before me and deposes to the fact that the appellant was in fact convicted of driving whilst disqualified on 22 August 2002.

5. The Magistrate imposed a sentence of imprisonment for a period of 14 days and suspended that sentence upon the appellant entering into a bond to be of good behaviour for 12 months.  In sentencing the appellant, the Magistrate commented that she had been told that the appellant did not turn his mind to the fact that he was disqualified.  She described the offence as serious and considered that a sentence of imprisonment was necessary in order to deter the appellant and other persons from driving whilst disqualified.  Because the appellant was employed she considered that a community service order was not practicable.  The Magistrate did not specifically refer to the alternatives of a fine or simple bond.

6. The appellant appeals against the sentence on the ground that it is manifestly excessive in all the circumstances.  It is further argued that, when the Magistrate determined that community service was inappropriate, she should have then considered alternatives such as a fine or a simple bond rather than determining that imprisonment was appropriate. 

7. The maximum penalty for a first offence of this kind is six months imprisonment. For a subsequent offence the maximum penalty is two years imprisonment: s 91 Motor Vehicles Act 1959.

8. In the Police v Cadd (1997) 69 SASR 150 a majority of the Full Court agreed that imprisonment for this offence was appropriate in the ordinary case of contumacious offending by a first offender, but that the circumstances of the offending or of the offender or of both may dictate some less severe form of punishment. Contumacious was used in the sense of committing the offence with total disregard of the disqualification in disobedience to the authority which imposed it. Those comments were directed to a first offender who is a contumacious offender.

9. I agree with what Lander J said in Johns v Police (Unreported 24 June 1998, Judgment No. S6729) at p 6, that the test of contumacy is directed to attitude.  His Honour said that the reasons for driving in circumstances where the offender knows that he or she has been ordered by a court not to drive are important.  If the driving indicates an attitude of defiance, that would usually amount to contumacy.

10. What is one to make of a situation where, in the words of the appellant’s counsel, he drove “without thinking about the issues of disqualification”?  The Magistrate made no express finding as to whether or not she considered the offence to be contumacious.  However, she did make a finding that the circumstances were not particularly unusual and that the appellant must have realised that he should not drive. 

11. The appellant was nearing the end of his period of disqualification.  He obviously knew about it.  He had been unable lawfully to drive a motor vehicle for nearly six months.  He acknowledged that he was disqualified when first approached by the police.

12. I cannot accept that he drove on that occasion with any genuine state of belief that he could lawfully drive a motor vehicle.  He was going to inspect and possibly to prevent loss and damage to his parents’ property.  Nothing was put about how far he had to go, other possible means of protecting the property, other possible means of conveyance or the urgency of attending on the premises. Lander J in Johns v Police also observed, an observation with which I respectfully agree, that to drive in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance.

13. The Magistrate did not find and I cannot infer from the circumstances disclosed any suggestion of emergency or duress which might excuse the appellant’s behaviour.  As this would therefore appear to be an ordinary case of what must be described as contumacious offending, considerations of general deterrence are important.  The penalty imposed, in my opinion, was well within the normal range of such penalties for a first offence and the order for suspension was entirely appropriate.  The fact that the appellant had been previously convicted of a similar offence within 12 months also tends to negate any suggestion of lack of contumacy.  The appeal is dismissed.