Chilton v Police - [2013] SASC 205

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHILTON v POLICE
[2013] SASC 205
Reasons for Decision of The Honourable Justice Nicholson
23 December 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
On 23 September the appellant was convicted in the Magistrates Court of the offences of exceeding the speed limit and driving whilst disqualified. The Magistrate levied an impounding fee but no fine for the speeding offence and sentenced the appellant to a term of imprisonment for six weeks, unsuspended, for the offence of driving whilst disqualified. Bail was granted to the appellant pending this appeal.
On appeal, the appellant complained, inter alia, that the Magistrate erred in imposing an immediate term of imprisonment.
Held:
1. Appeal allowed.
2. The Magistrates Court sentence for the offence of driving whilst disqualified, delivered on 23 September 2013, is set aside.
3. For the offence of driving whilst disqualified, the appellant is:
(i) to pay a fine of $1,500; and
(ii) to perform 80 hours of community service within 12 months of today.
Acts Interpretation Act 1915 (SA) s28A; Criminal Law (Sentencing) Act 1988 (SA) s3, s18, s38, s47, s54; Magistrates Court Act 1991 (SA) s42; Motor Vehicles Act 1959 (SA) s18, s34, s91, referred to.
Eldridge v Bates (1989) 51 SASR 532; House v The King (1936) 55 CLR 499; Long v Police (1998) 72 SASR 515; Meeuwsen v Police [2003] SASC 206; Nash v Police [2009] SASC 112; Police v Cadd & Ors (1997) 69 SASR 150; R v O'Toole [2013] SASCFC 18; Wessling v Police (2004) 88 SASR 57; R v Kruger (1977) 17 SASR 214; R v Wacyk (1996) 66 SASR 530; Dinsdale v R (2000) 202 CLR 321; Naera v Police (1995) LSJS 328; Taylor v Hayes (1990) 53 SASR 252; Ware v Betts (1987) LSJS 212, considered.

CHILTON v POLICE
[2013] SASC 205
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

The appellant has appealed against a sentence of six weeks imprisonment, unsuspended, imposed by a Magistrate for the offence of driving whilst disqualified. On 14 May 2013, the appellant committed the offences of exceeding the speed limit and driving whilst disqualified. On 23 September 2013, the Magistrate recorded convictions for both offences, levied an impounding fee but no fine on account of the speeding offence and imposed the prison term with respect to the drive whilst disqualified offence. Bail was granted to the appellant pending an appeal to this Court, notice of which was filed on 18 October 2013.
Background to the offending
The appellant was disqualified from holding a drivers licence in December 2012 for a period of 12 months. He became unemployed in February 2013 and, for some reason, was ineligible to receive Centrelink payments. At the time of the offending the appellant’s daughter was two and a half years old and his partner was pregnant and had been diagnosed with cervical cancer. As a consequence, she also had stopped working. The appellant and his partner had recently purchased a house and were struggling to meet their mortgage repayments. The appellant and his partner were experiencing very difficult financial circumstances and were under significant stress for this reason and because of the cancer diagnosis.
Shortly before committing the offences the appellant was offered work as a rigger in Renmark. This work was expected to last 10 days and the appellant was to be paid about $4,000. However, the appellant lived in the environs of Adelaide. As a consequence, and given that he was disqualified from driving at the time, he was booked to stay for the ten day period at a Renmark Hotel. It was intended that his partner would drive him to Renmark in order to start the ten days of work and then drive back at the end of the ten day period to collect him. However, she fell ill the night before the intended journey and on the following morning was not fit to drive. The appellant was due to commence work at 10am. He chose, in view of the circumstances, to drive himself to Renmark. On the way he had a flat tyre which put him behind schedule. In an effort to make up for lost time he broke the speed limit and was pulled over by the police. He admitted to the police that he was disqualified from driving. By all accounts he was frank and cooperative with the police.
The appellant’s prior criminal record
The appellant has a criminal record involving mainly driving offences but which is of some significance. In particular, this was the third occasion on which the appellant had driven whilst disqualified from driving. In May 2006 the appellant was convicted and fined and his licence suspended for two days for committing the offences of driving an unregistered and uninsured motor vehicle. In October 2006 the appellant was convicted and received a six month licence disqualification for driving with excess blood alcohol, breaching provisional licence conditions and driving an unregistered and uninsured motor vehicle. In May 2007, the appellant was convicted of driving whilst disqualified and sentenced to imprisonment for 28 days which was suspended upon his entering into a three year bond to be of good behaviour. In August 2007 he was again convicted and fined for driving whilst unlicensed and was disqualified from holding or obtaining a drivers licence. In September 2008 the appellant was convicted of a number of traffic offences including one count of driving whilst disqualified. This caused him to breach the bond entered into in 2007 in support of the 28 day suspended sentence for the May 2007 drive disqualified offence. In total the appellant was sentenced to eight weeks imprisonment the balance of which was suspended upon the appellant being placed on a six week bond to be of good behaviour and after serving 14 days of the sentence.[1]
[1] The precise nature of the penalties imposed is not clear from the offender history report exhibited to the affidavit of Stephen Andrews sworn 19 November 2013 and read as part of the Crown case on appeal. The Magistrate at the time appears to have revoked the suspension, reduced the 28 day sentence to 14 days on the finding of special circumstances (presumably pursuant to s54(4) of the Criminal Law (Sentencing) Act 1988) and sentenced the appellant to six weeks imprisonment for the fresh drive disqualified offending. The Magistrate then apparently effected a partial suspension purportedly in reliance on s38(2a) of the Sentencing Act. However, given the nature of the sentences imposed, there would have been no scope for the application of s38(2a).
The appellant is now 26 and was 21 and younger at the times he committed all of his previous offences including the two earlier drive disqualified offences. From his record, it can be seen that, when quite young the appellant demonstrated a significant disregard for the road rules and for the criminal law, insofar as motor vehicle and driving offences are concerned. However, it should not be overlooked that the offences presently under consideration are the only ones committed during the last five years or so.
The fact that this was the third occasion when the appellant had driven notwithstanding that he was disqualified from holding a licence and that on each of the two previous occasions he had been given the benefit of a suspended prison sentence, plainly was of significance to the Magistrate’s decision.
The Magistrate’s remarks
The Magistrate’s remarks were relatively short and to the point. I set them out in full.[2]
I take all those things into account in particular that you have a mortgage, you have a wife who is pregnant and due to deliver soon and has had poor health and you were in the Riverland for the purpose of work, trying to earn enough money to make sure you could keep up your mortgage payments. I accept everything Mr Colthorpe has said. You were in a difficult position. You were only trying to help your family in the circumstances in which you drove. I am sure however that you would have known you were disqualified. I do not see how you could not have been aware you were disqualified and you knew very well what the consequences of driving under disqualification were because you had been caught twice in the past. In 2007 you were convicted of a charge of driving under disqualification and you were imprisoned for a period of 28 days which was suspended. Then in 2008 you were again convicted of a charge of driving under disqualification for which you received sometime in imprisonment then. You cannot say you did not know what the consequences were. You would have known the consequences. You chose to drive and you were caught. You chose to drive and you were stopped by police. I think that means you have to expect a term of imprisonment again. I will return to that in a moment.
In relation to the charge of speeding you are convicted. There is no fine in relation to that. You are to pay the impounding fee of $531.
In relation to the charge of driving under disqualification, you will be convicted. Bearing in mind your previous history and the terms of imprisonment imposed in the past I think a term of imprisonment is appropriate again. Because you have been convicted twice before an appropriate term of imprisonment would have been two months. You have pleaded guilty so you are entitled to a discount and I will reduce that to six weeks. The burning issue is whether I should suspend it or not. I understand the effect a term of imprisonment will have on you in relation to your income, your wife and the difficulties which will befall you if you are imprisoned. I understand all that. I also have to uphold the law. You are a man who comes here on the third charge of driving under disqualification. You have been given some considerable leniency by the court in the past in terms of whether you should serve or not. My view is that as hard as it is, because this is your third time it would not be appropriate for me suspend that term of imprisonment. You are ordered to serve six weeks commencing from now.
The appellant in the notice of appeal as filed relied on the single ground of appeal – “that the learned Magistrate erred when he imposed an immediate term of imprisonment”.[3]
[2] Remarks on penalty 23 September 2013.
[3] The appellant later sought to supplement this ground of appeal with others, to be discussed later in these reasons.
The nature of the appeal
The power of the Court to suspend a prison sentence is governed by s38(1) of the Criminal Law (Sentencing) Act 1988.
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond –
(a)    to be of good behaviour; and
(b)   to comply with the other conditions (if any) of the bond.
The Court of Criminal Appeal has recently provided the following explanation of s38(1).[4]
This provision has been held to require the Court to ask only one question: whether having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentence.[5] The enquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[6] It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[7] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.
[4]    R v O’Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed).
[5]    Wessling v Police (2004) 88 SASR 57 at 63 (Besanko J).
[6]    R v Kruger (1977) 17 SASR 214 at 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530 at 535 (Perry J).
[7]    R v Wacyk (1996) 66 SASR 530 at 535 (Perry J).
The appeal to this Court is pursuant to s42 of the Magistrates Court Act 1991. The decisions whether or not to impose a prison sentence and, if so, whether or not to suspend it ordinarily involves the exercise of a discretion. An appeal from such an exercise of discretion is of the nature described by Dixon, Evatt and McTiernan JJ in House v The King.[8]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide of affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[8] (1936) 55 CLR 499 at 504-505; see also Dinsdale v R (2000) 202 CLR 321 at 324-325; Naera v Police (1995) LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) LSJS 212 at 216; Wessling v Police (2004) 88 SASR 57 at 60.
The parties’ submissions – in essence
Counsel for the appellant submitted that, ordinarily, before an immediate prison term is to be imposed for the offence of driving whilst disqualified, a finding should be made that the offender’s behaviour in relevant respects was contumacious. Contumacious behaviour involves or comprises stubborn or wilful disobedience to authority. The Magistrate did not use the term “contumacious” but such a finding can be inferred from aspects of the reasoning employed and the language used by the Magistrate. In any event, counsel submitted that there was no basis to support a finding that the appellant’s offending was contumacious and that for this reason an immediate term of imprisonment was not called for or, at the least, the absence of contumacious conduct rendered the case for suspension of the prison sentence all the stronger.
Counsel’s alternative submission was that even if the appellant’s conduct were to be characterised as contumacious, the circumstances giving rise to the offending and the personal circumstances of the appellant, generally, were nevertheless such as to demonstrate good reason for suspending the prison term imposed.
The respondent submitted that the Court could only interfere on the grounds set out in House v The King[9] and that no error of fact or principle on the part of the Magistrate had been demonstrated. The respondent drew the Court’s attention to and relied on certain statements of principle concerning the offence of driving whilst disqualified as explained in the Full Court decision of Police v Cadd & Ors.[10]
[9] (1936) 55 CLR 499 at 504-505.
[10] (1997) 69 SASR 150; respondent’s outline of argument at [13].
The respondent submitted, in essence, that: previous leniency had failed to deter the appellant from driving whilst disqualified; no error of fact or principle on the part of the learned Magistrate had been demonstrated; the penalty of an immediate term of imprisonment fell within the court’s discretion; and the result was not unreasonable, plainly unjust or manifestly excessive.
Disposition of the appeal
In Police v Cadd[11] Doyle CJ identified a number of matters that had been referred to in previous decisions as being pertinent to the sentencing discretion to be exercised for the offence of driving whilst disqualified. They included:
[11] (1997) 69 SASR 150.
(i)this offence is often to be characterised as including an element of defiance of the law;
(ii)those who commit this offence nullify the effect of the order of disqualification and defeat disqualification as a means of punishment:
The clear intention of parliament is that disqualification from holding a licence, which in today’s society is a very real punishment, be used in particular in the field of driving offences. Those who commit the offence tend to defeat parliament’s intention.[12]
(iii)the offence of driving whilst disqualified is an offence for which deterrence must predominate when considering appropriate punishment;
(iv)the offence often will be committed by persons who have chosen to take a calculated risk rather than on the spur of the moment or without a thought to the consequences although, the deterrent effect of a sentence is likely to be ineffective with respect to those persons who commit the offence in these latter circumstances; and
(v)whilst imprisonment is not to be imposed mechanically, the case would have to be exceptional before a sentence of imprisonment could be suspended and features which are run of the mill will not support suspension.
The former Chief Justice went on to observe:[13]
[T]o my mind the most weighty factor of all is the element of deliberate disobedience of the law which is present in many of these cases, coupled with the effect that the wide spread commission of this offence has in undermining disqualification as an effective punishment.
[12] At 162.
[13] At 163.
His Honour discussed the question of whether an appropriate standard for sentencing for this offence could be identified and whether or not it should ordinarily be adhered to and concluded, as did King CJ in Eldridge v Bates,[14] that a sentence of imprisonment would be an appropriate penalty for the ordinary case.[15] His Honour then turned to the question of suspension of any such prison term and expressed the view that the approach adopted by King CJ in Eldridge v Bates might be seen as having been expressed or at least understood as having been expressed more dogmatically than is appropriate.
[14] (1989) 51 SASR 532 at 533-534 (with whose judgment the other members of the Court were in substantial agreement).
[15] Police v Cadd at 167.
On one view of the approach taken by King CJ in Eldridge v Bates, suspension of a sentence of imprisonment would be permissible only in the truly exceptional case. However, Doyle CJ[16] made the observation that the breadth of the discretion conferred by s38 of the Sentencing Act (and I would add, the single test there embraced – “good reason”) and the greater part that circumstances personal to the offender can play in relation to the decision to suspend, requires the Eldridge approach to be qualified somewhat.
I accept that the offence of driving while disqualified is one that ordinarily warrants imprisonment, in the sense explained above, and that its seriousness may make it difficult to justify suspension of the sentence of imprisonment. I accept that circumstances justifying suspension are unlikely to be found in routine or run of the mill aspects of the circumstances of this offence. But individual consideration must still be given to these matters, and, in particular, to the circumstances of the offender. Matters such as previous good character, the likelihood of the offender responding to a final warning (given by means of a suspended sentence), the community interest in rehabilitation without imprisonment, the traditional reluctance to imprison an offender for the first time, the consequences for an offender and the offender’s family (where relevant) of imprisonment and other matters all require careful consideration under s38 of the Sentencing Act.[17]
[16] At 167.
[17] At 167 (Doyle CJ).

Whether or not an accused’s behaviour in committing the offence of driving whilst disqualified can be described as contumacious will be an important consideration. Common to the reasons of a majority of the five members of the Court in Police v Cadd was the sentiment that imprisonment will be imposed
in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment…[18]
However, as Doyle CJ pointed out in the later decision in Nash v Police,[19] the question of whether or not the offending behaviour was contumacious will assume less significance in the case of a repeat offender. In Long v Police[20] Mullighan J made the following observation.
I have embarked upon this discussion because it was accepted in argument before me that whether the offending is contumacious is a relevant consideration upon a second offence. It is at least in the sense that if the offending is contumacious, a sentence of imprisonment actually to be served is almost inevitable. I note that in Johns v Police, Lander J took the view that on each occasion the court is called upon to consider the penalty for his offence, whether for a first or subsequent offence, the court will have to determine which circumstances amount to a contumacious breach (at p 4).
[18] At 171 (Doyle CJ).
[19] [2009] SASC 112 at [35].
[20] (1998) 72 SASR 515 at 519.
In Police v Cadd[21] Mullighan J explained the meaning of contumacious for these purposes in a way that has gained general acceptance.
I use the word “contumacious” in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at 542-543. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. …
[21] At 179.
In my view, the Magistrate expressed himself in terms that implied a finding that the appellant’s offending here was contumacious. His Honour observed that the appellant would have known that he was disqualified. This must be so. The offending occurred on 14 May 2013 and the appellant had been disqualified from driving in December 2012. In addition, he had made arrangements to stay in the Riverland and to be driven there and back by his partner. It is conceivable that this may have been their intention in any event so as to leave the car at home for the use of the partner over the 10 day period. However, the appellant had been suspended from driving on two earlier occasions and had received a suspended prison sentence each time. The decision to drive that morning was made in the knowledge that the appellant had no legal entitlement to drive and in defiance of the Court ordered disqualification. Furthermore, as the Magistrate found, the appellant would have known “very well what the consequences of driving under disqualification were”, having committed that offence twice before and been punished each time with a suspended prison term.
The appellant’s conduct can be described as contumacious. The appellant had been found at law not to be a person allowed to drive a motor vehicle on a public road. He was aware of this, yet he was prepared to drive for some hours on country roads during which, for some of the journey, he exceeded the speed limit by driving at approximately 125kms per hour. This behaviour is not of itself a component of the drive disqualified offence but it does illustrate a poor attitude towards the requirement imposed on all citizens to observe the road rules. Furthermore, this is not a case of a first offender seeking to be given a second chance (as was the focus of the discussion in Police v Cadd). It was the appellant’s third such offence which added to the contumacious nature of his behaviour.
However, contumacious behaviour is a relative not an absolute concept. There will be occasions where behaviour still properly characterised as contumacious is less extreme or less serious when compared with behaviour on other occasions. Furthermore, as Doyle CJ pointed out in Nash v Police,[22] the attitude of the offender to the disqualification is of particular significance. This attitude is to be determined by an assessment of the circumstances of the breach and the reason given by the offender for the breach. I accept that the circumstances which led to the appellant making the decision to drive on this occasion were such as to moderate the contumacious nature of his behaviour. The appellant found himself in a very difficult position when, as events transpired, his partner was unable to drive him to Renmark on the morning of the day in which he was due to start work. The appellant could have waited until a bus trip became available but the appellant would have arrived late for work and perhaps a day or more late.[23] The appellant would have had to make his excuses concerning his partner’s late onset of illness and his other difficulties to his employer. It is not known what would have resulted had the appellant chosen that option. The appellant and his family were in very straitened financial circumstances. The appellant took the view that he could not afford to miss out on the Renmark work. In these circumstances, it would not be entirely accurate or fair to characterise this one foolish decision as indicating an attitude of “total disregard of the disqualification in disobedience to the authority which imposed it”.[24]
[22] At [38].
[23] There was no evidence put before the Magistrate or this Court concerning the frequency and availability of commercial bus trips from Adelaide to Renmark.
[24] Vide Mullighan J in Police v Cadd at 179.
The appellant also relied on his personal circumstances in support of his case for a suspended prison sentence. I have already outlined in these remarks the nature of these personal circumstances. As I have explained, those circumstances as they existed at the time of the offending serve to moderate the contumacious nature of the appellant’s conduct. They also stand on their own account to be weighed in the balance when deciding the question of suspension.
The Court has also been informed that after the Riverland work, the appellant gained full time employment as a rigger with a structural engineering firm in Adelaide. This information was before the Magistrate. The appellant has retained this employment and presently works from 4pm each day until midnight. He relies on public transport to go to work from his home address in the Onkaparinga Hills. He relies on his partner or others to collect him from work because, for the time being, there are no trains running and the last bus leaves before he finishes at midnight. The appellant’s period of disqualification should expire later this month and there have been no recorded instances of driving during the period of disqualification other than the one under consideration.
The fact that a person’s existing employment arrangements will be affected should that person be required to spend time in custody is, unfortunately, not uncommon. Similarly, the fact that imprisonment will have significant consequences for a person’s relationship with their family, for those family members themselves, and with respect to the financial circumstances that the family will find itself in also is not uncommon. Such matters, whilst significant to the question of suspension cannot, on their own, be decisive.
Such considerations remain of importance to the question of suspension in this case, particularly, because the appellant has responsibility for two very small children and for a partner who cannot work and who is suffering from a serious medical condition. Imprisonment now and at the time the Magistrate made his orders would be detrimental to the financial wellbeing of the appellant’s family and seriously jeopardise their capacity to maintain mortgage payments on the house.
The Magistrate was plainly discomforted by the conclusion he reached not to suspend the prison term but felt obliged, as he was required to do, to place significant weight on the fact that the appellant had received leniency in the past and on the fact, in particular, that this was the third time the appellant had committed the offence of driving whilst disqualified.
In the event that a prison term was appropriate the question of whether or not to suspend was not an easy one for the reasons I have given. The question of suspension was not straightforward. However, in my view, and when the circumstances of this case are examined more closely, a term of imprisonment, even suspended, was not the appropriate remedy.
The Magistrate made no mention in his remarks of any available penalty for this offending other than imprisonment. Nor were any possible alternatives drawn to his attention during sentencing submissions. The focus throughout the sentencing process seems to have been on whether or not the inevitable term of imprisonment might be suspended. During the hearing of the appeal, I raised with counsel the question of whether or not a person convicted of the offence of driving whilst disqualified might be ordered to pay a fine. The parties were invited to provide written submissions directed to this issue and on the question of whether or not the Magistrate failed to consider the merits or otherwise of a fine as a sentencing option before proceeding to imprisonment, and if so, whether or not the Magistrate erred in this respect. Both parties provided further written submissions. In addition, the appellant sought permission to add, out of time, three further or supplementary grounds of appeal.
(i)The learned Magistrate was wrong in finding the appellant’s actions were contumacious.
(ii)Having found that the appellant’s actions were contumacious, the learned Magistrate was wrong to assume that he had no other option but to impose a term of imprisonment.
(iii)The learned Magistrate failed to take into account or gave undue weight [sic: failed to give due weight] to the appellant’s personal and financial circumstances.
All of these proposed grounds were canvassed in the parties’ respective oral and written submissions and there being no prejudice to the respondent permission to include these additional grounds of appeal is to be granted.
Section 18 of the Criminal Law (Sentencing) Act provides:
18—Court may add or substitute certain penalties
Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a)where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose--
(i)a fine; or
(ii)     a sentence of community service; or
(iii)    both a fine and a sentence of community service; or
(b)where the special Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose--
(i)a sentence of imprisonment only; or
(ii)     a fine only; or
(iii)    a sentence of community service; or
(iv)    both a fine and a sentence of community service; or
(c)where the special Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose--
(i)      a sentence of community service; or
(ii)     both a fine and a sentence of community service; or
(d)where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.
The appellant was charged pursuant to s91(5) of the Motor Vehicles Act 1959 and the only penalty referred to and to be imposed pursuant to s91(5) is a term of imprisonment.
However, the Motor Vehicles Act falls within the definition of “special Act” in s3(1) of the Sentencing Act. Accordingly, s18(a) is apposite. Neither s18 nor s91 (of the special Act) provide any assistance as to the amount of any fine that might be imposed. That issue is dealt with, in part, in s34.
34—Maximum fine where no other maximum provided
Where a fine is imposed in respect of an offence for which the special Act does not prescribe a fine--
(a)if the special Act provides that imprisonment of a particular division may be imposed for the offence, the fine may not exceed a fine of the equivalent division; and
(b)in any other case, the fine may not exceed--
(i)where the Supreme Court imposes the fine--$75 000; and
(ii)where the District Court or the ERD Court imposes the fine--$35 000; and
(iii) where the Magistrates Court imposes the fine--$10 000.
The maximum penalty prescribed under s91(5) for a subsequent offence of driving whilst disqualified is two years imprisonment. The sub-section does not by its terms provide for “imprisonment of a particular division”. As such, it may not be appropriate simply to refer to the fine for the division corresponding to a maximum prison term of two years. Section 28A of the Acts Interpretation Act 1915 sets out a table of Divisional penalties. The opening words are as follows.
Unless a contrary intention is indicated in an Act in which an expression in the left hand column appears, that expression has the meaning appearing opposite it in the right hand column.
Thereafter the two columns contain entries for Divisional penalties from Division 1 to Division 12. The left hand and right hand columns for Division 5 are as follows.
Division 5 imprisonment a term of imprisonment not exceeding 2 years
Division 5 fine a fine not exceeding $8,000
Section 91(5) does not use the phrase “Division 5 imprisonment” or similar. Whilst, in my view, s28A of the Acts Interpretation Act is not directly applicable it does provide some assistance by way of indicating the legislature’s attitude to an appropriate correlation between the maximum length of a prison sentence and the maximum fine for equivalent offences.
Section 34(b) provides for the situation where s34(a) does not apply. I am sitting in the Supreme Court on appeal from the Magistrates Court. However, in the event of any resentencing, I take the view that I should look to s34(b)(iii), that is, $10,000, for the maximum fine available. I adopt this as the maximum available.
Before exercising any of the sentencing options contained within s18(a) the Court must be satisfied that “good reason exists for departing from the penalty provided” by s91(5) of the Motor Vehicles Act. I accept the Crown submission that it is unlikely that the Magistrate was unaware of the availability of a fine as a sentencing option. Nevertheless, I am satisfied that the Magistrate failed to give proper consideration to this option. His Honour placed too much weight on the repeated nature of the appellant’s offending and too little weight on the many mitigatory factors as earlier described. In so doing, his Honour appeared to focus almost solely on the question of whether or not the prison term should be suspended without considering whether or not a sentence of imprisonment was warranted.
Ordinarily, imprisonment should be a last resort and the correct sentencing approach is to eliminate all other sentencing options before considering imprisonment.[25] A substantial fine, in appropriate circumstances, can serve a number of the necessary functions of criminal sentencing. In the circumstances of this case, a substantial fine would serve strongly to punish the appellant, to promote deterrence (personal and general) to mark the Court’s and the public’s disapproval of the appellant’s conduct and to assist in supporting the effectiveness of licence disqualification as a penalty itself. I am satisfied that the appellant has the capacity to pay a substantial fine without undue prejudice to the welfare of the appellant and his dependants.[26] During submissions the Court was told that the appellant now has ongoing full time work for which he receives take home pay in the order of $1,400 per week. His mortgage commitment is $300 per week.
[25] Meeuwsen v Police [2003] SASC 206.
[26] See s13 of the Sentencing Act.
The appellant made a single foolish mistake driven by his family’s difficult personal circumstances at the time. There is no indication that the appellant has reverted to his earlier pattern of flouting the motor vehicle and driving laws when he was considerably younger. He will complete his period of disqualification sometime during this month; to this point, it would seem, without further incident. For all these reasons, I am satisfied that good reason exists in this case for departing from the penalty provided for in s91(5) of the Motor Vehicles Act. The Magistrate erred in ordering a term of imprisonment. The appeal is allowed and the prison sentence ordered by the Magistrate set aside.
Resentencing
In resentencing the appellant I propose to exercise the power available pursuant to s18(a)(iii) of the Sentencing Act and impose both a fine and an obligation to perform community service. I am conscious that a particularly large fine might place at undue risk the appellant’s capacity to provide for his dependents. I propose to fine the appellant $1,500 which given his financial circumstances is still to be seen as substantial. However, in addition, and given the nature of the appellant’s offending and the importance of vindicating the community’s interest in the enforcement of orders not to drive disqualified, a contribution to society by way of community service is warranted. I am conscious that a person is not to be required to perform community service under certain circumstances, including at times that would interfere with his remunerated employment.[27] Accordingly, I propose to provide for a reasonably lengthy period of time within which the community service is to be performed.
[27] Sentencing Act s47(1)(h).
I make the following orders.
1.The appeal is allowed.
2.The Magistrates Court sentence for the offence of driving whilst disqualified, delivered on 23 September 2013, is set aside.
3.For the offence of driving whilst disqualified, I record a conviction and the appellant is:
(i)to pay a fine of $1,500; and
(ii)to perform 80 hours of community service within 12 months of today.
4.The appellant is to report within two working days to the Noarlunga Office of the Department for Correctional Services, 3 James Clark Road, Noarlunga Centre SA 5168 or the Department for Correctional Services at the Courts Probation Unit, Adelaide Magistrates Court, 2 Angas Street, Adelaide.
5.The appellant is to report on or before Monday 6 January 2014 to the Fines Unit of the Christies Beach Magistrates Court at 96 Dyson Road, Christies Beach SA 5165.
6.I confirm the Magistrate’s orders for conviction without penalty for count 1, the speeding offence.
7.I confirm the Magistrate’s orders for costs and impounding fee.