Camplin v Police - [2007] SASC 94

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
CAMPLIN v POLICE
[2007] SASC 94
Judgment of The Honourable Chief Justice Doyle (ex tempore)
14 March 2007
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
Appeal against sentence imposed by Magistrates Court – appellant pleaded guilty to three counts of driving a motor vehicle on a road while not holding a driver’s licence and never having held a driver’s licence of the required kind – whether sentence of 14 days imprisonment manifestly excessive – nature of the offending in flagrant disregard of responsibility as a driver and of the legislation that governs the ability to drive.
Held: appeal dismissed.
Motor Vehicles Act 1959 (SA) s 74, referred to.
Police v Whitehouse (2005) 92 SASR 81, applied.

CAMPLIN v POLICE
[2007] SASC 94
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore):I have taken into account counsel’s written outlines and their submissions before me today. I have also been able to consider the Magistrate’s judgment.
This is an appeal against sentence. The issue is whether the sentence is manifestly excessive.
Mr Camplin pleaded guilty in the Magistrates Court to three charges under the Motor Vehicles Act1959 (SA) (the “MVA”). Each charge alleged a breach of s 74(2) of the MVA. The offence in question is, in effect, driving a motor vehicle on a road when the driver does not have a driving licence of the required kind, and has never had a driving licence of the required kind.
The offences were committed on 23 April 2005, 12 March 2006 and 21 March 2006. The matter was heard, and sentence imposed, on 2 February 2007.
In each case Mr Camplin was, for one reason or another, stopped by the police while driving a motor car. He admitted that he did not have a licence, and had never had one.
Section 74 of the MVA was amended with effect from 15 December 2003. Previously it created a single offence of driving a motor vehicle while not holding the required kind of licence. The effect of the amendment was to create two offences. The first, as before, is an offence of driving a motor vehicle without holding the required kind of licence. The second offence is the offence to which Mr Camplin pleaded guilty, driving a motor vehicle without holding the required kind of licence and never having held that kind of licence.
The legislative history indicates that Parliament has decided that a distinction should be drawn between the two categories of offender, and it is indicated by the penalty provisions that the latter category of offending is, not surprisingly, viewed more seriously.
Mr Camplin has a conviction for an offence against s 74 as it originally stood. That conviction was recorded in November 2003, not long before the section was amended.
The conviction recorded by the Magistrate for the offence committed on 21 March 2006 is a conviction for a subsequent offence for the purpose of s 74(5) of the MVA. This was decided by the Full Court in Police v Whitehouse (2005) 92 SASR 81. The other two offences are also subsequent offences.
For an offence that is a subsequent offence, the maximum penalty is a fine of $5000 or imprisonment for one year.
Detailed submissions were made to the Magistrate on the question of penalty by counsel appearing for Mr Camplin. The Magistrate said in the course of his sentencing remarks that the offences committed by Mr Camplin showed “a flagrant disregard towards not only his responsibility as a driver but towards the legislation that governs one’s ability to drive”. I agree. The fact that the latter two offences were committed only nine days apart speaks for itself. So does the fact that Mr Camplin was already before the Court for the offence of 23 April 2005. He was on bail in relation to that. That is a circumstance of aggravation. It should have served as a warning to him that the course of conduct in which he was engaging was one that was likely to prove dangerous for him.
The Magistrate said it was necessary to impose a penalty that would deter Mr Camplin from offending, and I agree with that.
On the count relating to the offence committed on 21 March 2006, the latest of the three offences, the Magistrate recorded a conviction and sentenced Mr Camplin to imprisonment for 14 days. He declined to suspend the sentence. He made an order on each count that Mr Camplin be disqualified from holding or obtaining a driver’s licence for a period of three years. He imposed no other penalty on the first and second counts.
Mr Camplin complains that the sentence is manifestly excessive.
I begin by observing that the matters put before the Magistrate did not significantly mitigate the seriousness of the offending.
As to the circumstances of the offence, in each case, they boil down to the fact that, although Mr Camplin did not have a licence, he drove a motor car because of every day domestic needs, linked to the need of his partner for help with the caring of her child and for help with caring for a sick relative.
It is clear that Mr Camplin drove, knowing that he should not, because that was the convenient thing to do. There was nothing in the nature of an emergency or crisis, so there is no real excuse for the offending conduct. The Magistrate was told that Mr Camplin had a background of depression and drug abuse. That provides no excuse for this offending.
Mr Camplin is in a stable relationship. He and his partner have a two year old child. His partner relies on Mr Camplin to care for the child for two days each week while she has employment. At the moment Mr Camplin does not have employment. Each weekend an eight year old son of Mr Camplin from a previous relationship stays with him. A custodial sentence will clearly cause some difficulty for Mr Camplin’s partner and for the children, but only for a short time, and there is nothing to suggest that the inconvenience and disruption to their lives will be greater than occurs whenever an offender with a partner and children, to some extent dependent on the offender, is sent to prison.
The Magistrate was told that Mr Camplin wanted to get a truck driver’s licence, but so far had not been able to qualify for a driver’s licence, the first step along that road.
These were all matters to be considered, but, as I have already said, they do not significantly mitigate the offending conduct when one bears in mind that there are three offences and that, as the Magistrate rightly observed, they were flagrant breaches of the legislation in the circumstances.
On appeal it is submitted by Mr Twiggs, counsel for Mr Camplin, that the Magistrate should have reduced the sentence on account of the plea of guilty. That may be, but in a case of such a short sentence as this, that cannot be significant. It could only, at best, be a matter of a few days.
Counsel complains that the Magistrate failed to warn counsel and Mr Camplin that imprisonment was likely. There is no substance in this point. Mr Camplin was represented before the Magistrate and it must have been apparent that imprisonment was a possibility.
I consider that the sentence is an appropriate one.
That leaves the question of whether the Magistrate erred in declining to suspend the sentence.
All of the matters just referred to must be taken into account. As well, there is the submission that Mr Camplin now realises how serious the offence is, and that since he was last detected he has not committed any further offences. That may be, but that of itself is not entitled to great weight.
There is one other matter that can be taken into account. When Mr Camplin was convicted for a breach of s 74 in November 2003, the offence was not one that attracted imprisonment as a punishment. He would not have been warned that a further offence would attract imprisonment. But that also can only be given limited weight. The fact that a person is unaware that his offences attract imprisonment as a punishment can be taken into account, but for obvious reasons can only be given limited weight.
I can interfere only if satisfied that, in all the circumstances, it was incumbent on the Magistrate to suspend the sentence. I cannot interfere simply because I think that had I been deciding the matter I might have, or would have, taken the course of suspending the sentence of imprisonment.
I am not satisfied that the Magistrate was wrong to act as he did. Deterrence was important. The sentence is a short one, and can be regarded as moderate in all the circumstances. The impact on the family is a relevant matter, but is not so significant, on the material before the Magistrate or before me, as to lead to the conclusion that the Magistrate should have suspended the sentence.
A court is always reluctant to impose imprisonment for a first time, but I am not able to say it was not open to the Magistrate to decide that this was an appropriate order having that effect.
For those reasons, I must dismiss the appeal.