Carbone v Police - [2005] SASC 371

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CARBONE v POLICE
Judgment of The Honourable Justice Duggan
29 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence imposed by magistrate - appellant sentenced to 7 days imprisonment for driving disqualified - whether sentence manifestly excessive - whether magistrate erred in not suspending sentence of imprisonment - consideration as to meaning of "contumacy" - whether material before magistrate sufficient to make the finding that the offending was contumacious - appeal allowed - sentence imposed by magistrate suspended.
Motor Vehicles Act 1959 s 91, referred to.
Police v Cadd (1997) 69 SASR 150, applied.
White v Police [2000] SASC 127; Rhodes v Police [1999] SASC 191; Scholes v Police [2005] SASC 116; Johns v Police (Lander J, 24 June 1998, unreported), discussed.

CARBONE v POLICE
[2005] SASC 371
Magistrates Appeal

DUGGAN J. The appellant has appealed against his sentence on an admitted charge of driving a motor vehicle while disqualified from holding or obtaining a licence contrary to s 91 of the Motor Vehicles Act 1959.
The disqualification was imposed on 26 February 2004 after the appellant had been convicted of driving at a speed which was dangerous to the public. On that occasion he was fined $300.00 and disqualified from holding or obtaining a driving licence until 25 August 2004.
The appellant was stopped by police officers at about 4.50 pm on 21 June 2004 as he was driving a motor vehicle along Mooringe Avenue, North Plympton. He told the reporting police officer that he was aware that he had been disqualified from holding or obtaining a driver’s licence.
The learned magistrate sentenced the appellant to imprisonment for seven days and declined to suspend the sentence. The grounds of appeal complain that the sentence was manifestly excessive and that the magistrate erred in not suspending the sentence.
In submissions before the magistrate, the appellant’s counsel submitted that the offending was not contumacious. He told the magistrate that on the day of the offence the appellant received a telephone call from a friend who told him that the friend’s 14 year old girlfriend had been stranded at Para Hills High School and that she had no way of getting home. The appellant lives at Para Hills, a short distance from the school. According to counsel’s submissions, the friend viewed the situation as “an emergency” in that it was 4.30 pm and the girl had no way of getting home. He drove the girl to Plympton.
The learned magistrate rejected the submission that the offending was not contumacious. He said the appellant’s decision to drive was indicative of contempt of the court order.
In Police v Cadd (1997) 69 SASR 150 the majority of the Full Court of the Supreme Court held that the punishment for this offence should be imprisonment in the ordinary case of contumacious offending by a first offender, but that the circumstances of the offending or the offender or both may indicate some less severe form of punishment.
Counsel for the appellant drew my attention to three cases decided since the decision in Police v Cadd.
In White v Police [2000] SASC 127 Mullighan J set aside an immediate sentence of imprisonment imposed on the appellant for an offence of driving while disqualified. The appellant drove for less than a kilometre after he had been drinking with friends. The learned judge found that the magistrate erred in his approach to sentencing both in relation to the offence of driving while disqualified and a further offence of driving while he was so much under the influence of liquor as to be incapable of exercising effective control of the vehicle. In addition, the magistrate did not find that the offending was contumacious; nor did he reject a defence submission that the appellant gave no thought to the licence disqualification when he drove. Mullighan J reached the conclusion that the appellant’s actions were foolish and unthinking, but not defiant or intentionally disobedient.
The appellant’s counsel also referred to Rhodes v Police [1999] SASC 191, a case in which Nyland J concluded that the appellant’s conduct was wilful and foolish, but not contumacious. Her Honour formed the view that, in the light of this consideration and the appellant’s personal circumstances, an immediate term of imprisonment was not warranted.
Finally, counsel referred to Scholes v Police [2005] SASC 116. The appellant had been sentenced to an immediate term of imprisonment. The magistrate made no finding as to whether the conduct was contumacious in the sense referred to in Police v Cadd. Anderson J found that the appellant’s conduct was not defiant or intentionally disobedient. He said:
If the Magistrate was dealing with the matter on the basis that the conduct was contumacious, I disagree with him. If he was not dealing with it on the basis that it was contumacious, then in my opinion, the penalty is manifestly excessive.
The difficulties which these cases present for the courts remain despite the discussion in Police v Cadd. The concept of contumacious offending as an important touchstone for consideration of penalty is often difficult to apply in practice. Apart from the conceptual difficulties inherent in the use of the term, I suspect that, in many cases, the only facts upon which the issue is to be determined are those raised in submissions from the bar table.
Although, as I have said, the concept of contumacious offending is an important touchstone, it is not to be treated as conclusive of whether the defendant is to be imprisoned. The formulation by the Chief Justice of the common denominator in the majority decision included the important rider that, even in cases of contumacious offending, “the circumstances of the offending or the offender or both may dictate some less severe form of punishment”.
In the present case, the magistrate’s sentencing remarks were brief and I set them out in their entirety:
I note your plea of guilty. I note your youth. I note the various personal matters which are referred to in the reports that have been tendered by consent. Your general character is not in issue.
The reality is that you drove contrary to an order of disqualification in respect to speed dangerous. It is said that you received a call from a 14-year old girl who found it difficult to get transport home from school. You, in contravention of the order of disqualification foolishly decided you could assist. You drove to collect your friend. You were detected driving contrary to that order of disqualification.
Drive disqualified is a very serious matter. That was made well known to you at the time of the imposition of the order of disqualification.
Ms Isaacs has submitted your actions on this date were non contumacious. He says there was no element of contempt displayed by you in driving contrary to that order. I cannot accept that submission. The very fact that you decided to drive contrary to that order is indicative of the contempt you held for the order of the court. I accept that if I imprison you today, that order is likely to have a substantial impact on your employment.
The prosecutor has emphasised the need to impose a heavy penalty to ensure that orders of disqualification are obeyed. The prosecutor has submitted that your actions are evidence of contempt for that court order.
Having balanced those various considerations Mr Carbone, my view is that you ought to serve, albeit a short period of imprisonment, designed to reinforce to you the need to obey such orders and to reinforce to the community at large that orders of disqualification have to be taken seriously.
For those reasons you will be convicted. I find this is a contumacious example. I propose a seven-day period of imprisonment. I think in all the circumstances it would be inappropriate to order suspension of that sentence, for the reasons I have given. I decline to do so.
You need to think very seriously about what I have said.
There is only a brief reference in the remarks as to why the magistrate found that the conduct was contumacious. His Honour’s conclusion appears to be based on his view that the mere decision to drive contrary to the order is indicative of contempt of the court. However, the majority view in Police v Cadd is to be found in Mullighan J’s observation that “contumacious” means more than a mere intention to drive whilst disqualified. He said it was “committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it”.
When commenting on these observations in Johns v Police (Lander J, 24 June 1998, unreported) said:
There is no doubt that Mullighan J had in mind that mere driving of a motor vehicle whilst suspended would not be enough to make the offender liable to an immediate sentence of imprisonment.
Before such a sentence was appropriate, the offender would have to commit the offence in circumstances which displayed “a total disregard of the disqualification and disobedience to the authority which imposed it”.
In a sense all persons who commit this offence show a disregard of the disqualification and disobey the authority which imposed the disqualification. In that sense nearly all offenders are defying the order and the authority. The offence cannot be committed without some element of disobedience or defiance.
Mullighan J, however, would reserve the penalty for those who show contumacy.
In the view that I take of this matter there was insufficient material before the magistrate to enable him to make a positive finding that the circumstances went beyond the mere intention to drive by the appellant knowing that he was disqualified such that he exhibited a total disregard of the disqualification and disobedience to the authority which imposed it.
If I am wrong and the conduct was contumacious, I think it must be regarded as a borderline case. This is a relevant consideration when considering the next step referred to in Police v Cadd which requires a determination whether the circumstances of the offending or the offender or both dictate some form of punishment less severe than an immediate term of imprisonment.
Unfortunately, there is no discussion in the magistrate’s reasons of the circumstances of the driving in the context of the formulation in Police v Cadd; nor is there any relevant discussion as to the antecedents of the appellant which were relevant to this stage of the enquiry. As I am not satisfied that the magistrate’s process of reasoning is adequately revealed in his remarks on sentence, I think the matter requires a fresh assessment by this court.
I have said that, if the offence was contumacious, the degree of contumacy is at the lower end of the scale. The driving took place on one occasion at the request of a friend who said that the 14 year old girl was stranded at her school without transport.
The personal circumstances of the appellant are also relevant. He was 20 years of age at the time of the offence and the only prior conviction alleged by the prosecution was that which led to the disqualification from holding or obtaining a licence. Evidence of his good character was tendered and, most importantly, the magistrate accepted that immediate imprisonment was “likely to have a substantial impact on [the appellant’s] employment”.
In my view there is sufficient in the circumstances to justify the suspension of the sentence.
The appeal will be allowed and the sentence imposed by the magistrate will be suspended. I will give counsel the opportunity to address me on the terms of the bond. In all other respects, the orders of the magistrate are confirmed.