Churchill v Police - [2010] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHURCHILL v POLICE
[2010] SASC 128
Judgment of The Honourable Justice Kelly
6 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Appeal against sentence - appellant convicted on his guilty plea of failing to give a change of direction signal r 48(3) of the Australian Road Rules, driving a motor vehicle on a road while under the influence of intoxicating liquor s 47(1) of the Road Traffic Act 1961, and driving a motor vehicle on a road whilst disqualified from holding or obtaining a licence s 91 of the Motor Vehicles Act 1959 - appellant sentenced to 14 months imprisonment with a non-parole period of six months, disqualified from driving for not less than three years - whether the sentence is manfiestly excessive.
Held: appeal allowed - respondent conceded error in utilising the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 - appellant resentenced - six months imprisonment - appellant disqualified from holding or obtaining a driver's licence for five years.
Australian Road Rules r 48(3); Road Traffic Act 1961 s 47(1)(a); Motor Vehicles Act 1959 s 91; Criminal Law (Sentencing) Act 1988 s 18A; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 reg 50, referred to.

CHURCHILL v POLICE
[2010] SASC 128
Magistrates Appeal: Criminal
KELLY J:

This is an appeal against a sentence imposed in the Magistrates Court at Port Augusta on 24 February 2010. On that date the appellant entered pleas of guilty to one count of being a driver of a motor vehicle which changed direction but did not give a signal contrary to r 48(3) of the Australian Road Rules, one count of driving a motor vehicle while under the influence of intoxicating liquor contrary to s 47(1)(a) of the Road Traffic Act 1961 and one count of driving a motor vehicle whilst disqualified from holding or obtaining a licence contrary to s 91 of the Motor Vehicles Act 1959.
He was sentenced under the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 to imprisonment for 14 months with a non‑parole period of six months and disqualified from holding or obtaining a driver’s licence for a period of not less than three years from 24 February 2010.
The appellant complains that the sentence was manifestly excessive and in addition that the Magistrate incorrectly utilised the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 in respect of an offence which carries a fine only.
Although the appeal notice was lodged four days out of time the respondent did not oppose an extension of time and in fact conceded that the Magistrate made an error in utilising the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 to impose a global penalty in respect of all three offences in the circumstances.
The respondent’s concession is quite properly made. The maximum penalty for failing to give a change of direction signal contrary to the Australian Road Rules is a fine not exceeding $2,500 in accordance with reg 50 of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999. When a court imposes a global penalty that includes a sentence of imprisonment each individual sentence must be punishable by a term of imprisonment.
The error appears to have been made as the result perhaps of an oversight on the part of the Magistrate but nevertheless it is appropriate for me in the circumstances to allow the appeal and re‑sentence the appellant. I do not consider it appropriate in the circumstances to remit the matter back to the Magistrates Court for re‑sentencing. In my view it is in the interests of justice that the appellant be resentenced as soon as possible.
The appellant is a traditional Aboriginal man aged 34. He normally resides in the Yalata Community via Ceduna. At the time when the offences were committed the appellant’s partner was five moths pregnant. They have another child who is aged three years. The appellant also has two other children from a previous relationship. When the Magistrate sentenced the appellant he was unemployed but had a history of recent employment with a cattle station performing cattle mustering.
Regrettably the appellant has an extensive history of prior offending. In fact I note that the antecedent report is seven pages long and includes two previous convictions for driving under the influence, three convictions for driving with excess blood alcohol, five for driving whilst disqualified and two for driving a motor vehicle without a licence. He has an appalling record for driving under disqualification, driving with excess blood alcohol, driving a motor vehicle that is unregistered and driving without a motor vehicle licence.
The appellant was first convicted of driving with excess blood alcohol in April 2003. At that time the appellant was also convicted for being unlicensed and driving an unregistered motor vehicle. The appellant was fined and received a driver’s licence disqualification for 12 months.
In February 2004 the appellant was charged on consecutive days for committing driving offences. These offences went to court in September 2004. For the first offending, the appellant was convicted of driving under disqualification and driving with excess blood alcohol. He was fined and had his licence disqualified for three years. For the second offending, the appellant was convicted of driving under disqualification and for driving an unregistered and uninsured vehicle on the road. He was fined and had his licence disqualified for seven days.
In July 2006 the appellant was again charged on consecutive days for committing driving offences. These offences went to court in November 2006. For the first offending, the appellant was convicted of driving under disqualification, driving without due care and with excess blood alcohol. He was fined and had his licence disqualified for three years to commence on 22 December 2007. For the second offending, he was convicted of driving under the influence and driving under disqualification. He was fined, had his licence disqualified for three years to commence on 22 December 2007 and was sentenced to two months imprisonment, suspended on bond to be of good behaviour for 12 months with conditions and supervision.
In July 2009 the appellant was convicted of driving under the influence and driving under disqualification. He had his driver’s licence disqualified for four years and was sentenced to four months and 14 days immediate custodial sentence. At the same hearing the appellant was further convicted of driving an unregistered and uninsured vehicle on the road and had his licence disqualified for a period of one month.
It can be seen from the foregoing that whilst the appellant’s record is not as bad as some, nevertheless, in respect of the very offences for which he was convicted on this occasion, previous penalties do not appear to have had any appropriate deterrent effect upon the appellant. Counsel for the appellant submitted that the appellant is a very suggestible man and was under some pressure from another family member to drive on the occasion when he was apprehended just outside of Port Augusta for these latest offences. That may well be true, but a court when sentencing for these types of offences must also take into account the public interest. Mr Churchill was on a national highway travelling between Port Pirie and Port Augusta at the time. His driving was incompetent. Indeed, his intoxication was to such an extent that he failed to indicate and when police stopped the vehicle and apprehended him, he was staggering about and not able to remain upright. The breath analysis revealed that he had a blood alcohol reading of somewhere around 0.22, a very high reading. He was a danger to himself, his passengers and anyone else on the highway at that place.
It is regrettable that a man who appears to have had the capacity to work well when away from the town finds himself once again in conflict with the law because of his inability to stay out of a car when drunk and when disqualified. Unfortunately his record shows a contumacious disregard of the law and the sentence which I impose should reflect the need for both general and specific deterrence in this man’s case.
I consider that a sentence of six months imprisonment is appropriate. Taking into account that he is currently prohibited from obtaining or holding a driver’s licence until 28 July 2013, I make the following orders.
For the two offences of driving under the influence and driving whilst disqualified from holding or obtaining a driver’s licence I impose a global penalty of six months imprisonment to date from 21 December 2009.
For the offence of failing to indicate a change of direction signal, in the circumstances the appellant is convicted without further penalty. I consider it inappropriate in the circumstances to impose any monetary fine which the offending might otherwise attract.
The appellant is disqualified from holding or obtaining a drivers licence for a period of five years from 6 May 2010.