Collins v Police

[2009] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

COLLINS v POLICE

[2009] SASC 114

Judgment of The Honourable Chief Justice Doyle

4 April 2009

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES

Appellant pleaded guilty to two counts of driving while disqualified from holding or obtaining a driver’s licence – two weeks before the incident the subject of the first offence, the appellant was convicted of the same offence and was fined – incident the subject of the second offence occurred three weeks after the incident the subject of the first offence – Magistrate sentenced appellant to three weeks’ imprisonment in respect of each offence – Magistrate suspended sentence of imprisonment imposed in respect of the first offence but declined to do so in respect of the second offence – appeal against sentence imposed by Magistrate.

HELD: Magistrate erred in imposing a sentence of imprisonment to take effect cumulatively upon or concurrently with a suspended sentence of imprisonment (s 38(2) Criminal Law (Sentencing) Act 1988 (SA)) – appeal allowed – appropriate that appellant be resentenced – sentence of imprisonment called for to demonstrate that disqualification orders must be observed and that breaches of such orders will ordinarily be met with severe punishment – appellant sentenced to two weeks’ imprisonment in respect of the first offence, to be served concurrently with 19 days’ imprisonment imposed in respect of the second offence – if offending conduct contumacious, there will be little in the circumstances of the offending to support a finding of ‘good reason’ to suspend a sentence of imprisonment – no good reason to suspend sentence of imprisonment – appellant sentenced to terms of imprisonment actually to be served.

Motor Vehicles Act 1959 (SA) s 9(1), s 91, s 102(1); Criminal Law (Sentencing) Act 1988 (SA) s 38(2); Magistrates Court Act 1991 (SA) s 42(5)(a), referred to.
Nash v Police [2009] SASC 112, applied.

COLLINS v POLICE
[2009] SASC 114

Magistrates Appeal:  Criminal

1. DOYLE CJ:          Mr Collins was charged with driving offences on two complaints filed in the Magistrates Court. The first offences in time (“the first offences”) comprised one count of driving an unregistered vehicle, one count of driving an uninsured vehicle, and one count of driving while disqualified from holding or obtaining a driver’s licence.  Another complaint charged Mr Collins with driving while disqualified from holding or obtaining a driver’s licence.

2. Mr Collins pleaded guilty to all offences. In respect of each offence of driving while disqualified, the Magistrate sentenced Mr Collins to three weeks imprisonment. The Magistrate suspended the term of imprisonment that she imposed in respect of the first offence of driving while disqualified, but declined to suspend the sentence of imprisonment that she imposed in respect of the second offence. 

3. Mr Collins appeals against the sentences imposed by the Magistrate.  He claims that the length of each sentence is excessive, and that the Magistrate erred in failing to order that the second sentence of imprisonment be suspended.

   Background

   The first offences

4. On 1 July 2008 police officers stopped a car being driven by Mr Collins.  Police checks revealed that the car was unregistered and uninsured, and that Mr Collins was disqualified from holding or obtaining a driver’s licence.

5. Mr Collins was charged on a complaint filed in the Magistrates Court on 9 December 2008. The complaint charged Mr Collins with one count of driving an unregistered motor vehicle on a road, contrary to s 9(1) of the Motor Vehicles Act 1959 (SA) (“the MVA”); with one count of driving an uninsured motor vehicle on a road, contrary to s 102(1) of the MVA, and with one count of driving a motor vehicle on a road while being disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the MVA.

6. Mr Collins pleaded guilty to the first offences on 3 March 2009 and was sentenced in respect of those offences on the same day.

   Second offence against s 91

7. On 23 July 2008, about three weeks after the incident giving rise to the first offences, a car driven by Mr Collins was stopped by police. Mr Collins immediately informed police that he was disqualified from holding or obtaining a driver’s licence. The police arrested Mr Collins and took him into custody. When interviewed by police, Mr Collins told the police that he was driving from his house to that of a friend, and that he had no reason to drive.  He told the police that the passenger in the car was the holder of a full licence and could have driven to the friend’s house. Mr Collins acknowledged that driving while disqualified was an offence.

8. Mr Collins was charged on a complaint filed in the Magistrates Court on 21 October 2008 with one count of driving while disqualified from holding or obtaining a driver’s licence. Mr Collins pleaded guilty to this charge on 16 December 2008, and was sentenced in relation to this offence on 3 March 2009 when he was sentenced in relation to the first offences.

   Previous driving offences

9. At the time of the incidents which gave rise to the charges against him, Mr Collins was disqualified from holding or obtaining a driver’s licence for a period of one year commencing on 12 November 2007. The disqualification was imposed by a magistrate after Mr Collins was convicted of driving a vehicle at a speed dangerous to the public.

10. On 16 June 2008, two weeks prior to the incident which gave rise to the first offences, Mr Collins was convicted of driving while disqualified. The conviction related to an incident which occurred in February 2008. A magistrate fined Mr Collins $250. This offence meant that the breaches of s 91 of the MVA the subject of appeal were subsequent offences and liable to a maximum penalty of two years imprisonment.

    Submissions in mitigation of penalty before the Magistrate

11. Counsel who appeared for Mr Collins before the Magistrate conceded that a sentence of imprisonment was an appropriate penalty in the circumstances. It was the submission of counsel that any period of imprisonment imposed on Mr Collins should be suspended.

12. Counsel submitted that on each occasion which formed the basis of the charges against him, Mr Collins was driving “out of convenience to visit a friend”. In relation to the second offence, Mr Collins’s partner, who held a driver’s licence, was a passenger in the car.  It was submitted that Mr Collins drove because his partner was not familiar with the streets of Adelaide.

13. In relation to both offences, counsel submitted to the Magistrate that Mr Collins was under the mistaken impression that the offence was not one in respect of which a sentence of imprisonment was likely to be imposed. It was submitted that Mr Collins’s mistaken belief arose in part because of the lenient approach taken by the magistrate who on 16 June 2008 sentenced Mr Collins in relation to the previous offence against s 91 of the MVA. However, it was accepted that Mr Collins would have been warned that he ran the risk of imprisonment if he offended again.

14. It was further submitted to the Magistrate that the experience of being arrested and held in custody for two or three hours in relation to the second offence had given Mr Collins a “reality check”.  Counsel told the Magistrate that she had been instructed that the experience was “extremely frightening” for Mr Collins, who had not been in custody before. On this basis, it was submitted that the offending for which Mr Collins was sentenced was “isolated and unlikely to be repeated…”.

15. Counsel informed the Magistrate that Mr Collins was 22 years of age.  He had a good employment record.  By and large he had managed to obtain employment despite losing his licence.  He had recently been unemployed, but had good prospects of obtaining employment in the near future.  He was living in a de facto relationship with a young woman.  She was very dependent on him, because she suffered from anxiety and depression.  If he were imprisoned, she would find it difficult to cope.

16. Counsel also emphasised before the Magistrate the changed attitude of Mr Collins since he had been arrested.

    The sentence imposed by the Magistrates Court

17. On 3 March 2009 Mr Collins was sentenced for all of the offences. The Magistrate recorded convictions on all counts.

18. In respect of the first two counts on the complaint filed on 9 December 2008, the Magistrate imposed a fine on each count of $100.

19. The Magistrate considered that each of the offences of driving while disqualified represented a “flagrant and wilful disobedience of an order of the court” and was “clearly contumacious”.  No doubt this reflected the circumstance that there was no plausible excuse or good reason for committing the offences.  The Magistrate was entitled to infer that Mr Collins simply ignored and defied the Court’s order.  The Magistrate records that counsel who appeared for Mr Collins conceded “that both offences of driving whilst disqualified are examples of contumacious or deliberate driving.” The Magistrate noted Mr Collins’s previous conviction on 16 June 2008 for driving while disqualified, and considered that Mr Collins had been given a “second chance” by the magistrate who had sentenced him in respect of this offence.  On this occasion Mr Collins had escaped with a fine. The Magistrate considered that she had “no alternative but to impose a sentence of imprisonment.”

20. In relation to the first offence of driving while disqualified, the Magistrate adopted a starting point of four weeks imprisonment. After taking into account Mr Collins’s plea of guilty, the Magistrate sentenced Mr Collins to three weeks imprisonment. That term of imprisonment was suspended upon Mr Collins entering into a bond in the sum of $100 to be of good behaviour for a period of twelve months. Mr Collins was also disqualified from holding or obtaining a driver’s licence for a period of two days commencing on the date that Mr Collins was sentenced.

21. Having noted that the second offence of driving while disqualified was committed only three weeks after the first offence, the Magistrate considered that the two hours that Mr Collins spent in custody after being arrested was not a “sufficient penalty”. The Magistrate again adopted a starting point of four weeks imprisonment, which she reduced to three weeks to allow for Mr Collins’s guilty plea. The Magistrate refused to suspend the sentence of imprisonment.  The Magistrate said that to do so would not represent a sufficient deterrent to Mr Collins and others.

22. It was not open to the Magistrate to sentence the appellant to a suspended period of imprisonment which takes effect cumulatively upon or concurrently with a sentence of imprisonment about to be served: s 38(2) of the Criminal Law (Sentencing) Act 1988 (SA). The Magistrate did not specify whether the sentences that she imposed would take effect cumulatively or concurrently. In either case, the Magistrate would have fallen into error. Counsel for the respondent concedes that the Magistrate erred in this respect. It is appropriate to set aside the sentences imposed in relation to each of the offences against s 91 of the MVA, so that the overall position can be dealt with. The Court has power to do so under s 42(5)(a) of the Magistrates Court Act 1991 (SA). Mr Collins must be re-sentenced. It is appropriate that I re-sentence Mr Collins.

    Submissions on appeal

23. Ms Downey, counsel for Mr Collins on appeal, submitted that when Mr Collins appeared before the Magistrates Court on 12 November 2007 and was disqualified from holding or obtaining a driver’s licence, the significance of that order, and the seriousness of a breach of the order, did not “sink in”.  Nevertheless, she had to accept that Mr Collins would have been warned about these matters when he appeared before the Court.

24. Ms Downey made the point that when Mr Collins was detected by police while driving in breach of the disqualification order on 9 February 2008, he was not arrested.  When he came before the Court on 16 June 2008 and escaped with a fine, he still did not realise the seriousness of his offence.  Ms Downey also pointed out that Mr Collins was not arrested after being detected committing the first offences.

25. I told Ms Downey that without hearing evidence from Mr Collins on these matters, I was not prepared to accept a claim that he did not realise that a breach of the licence disqualification order was a serious matter, and carried with it the risk of imprisonment.  Before the Magistrate Mr Collins’s counsel had acknowledged that when a magistrate imposed the disqualification order an appropriate warning was given.  Similarly, without hearing evidence from Mr Collins I was not prepared to accept that because he was not arrested on 9 February 2008, and then escaped with a fine when he came before the Court, he did not realise that the offending was serious.  I would have expected the Magistrate who fined him to have emphasised how fortunate he was to escape with a fine.  Ms Downey left the matter there.  I am prepared to accept that Mr Collins did not fully face up to the seriousness of his breaches of the disqualification order, but it is another thing to say that he did not realise that a breach of that order was a serious matter, and carried with it the risk of imprisonment.

26. Taking those matters into account, I consider that the offending conduct was conduct that reflects a flagrant disregard of the order for disqualification, calling for a sentence of imprisonment.  The reason for driving on each occasion was trivial.  If anything, the fact that Mr Collins had escaped one breach with a fine should have been a warning to him.  The fact that even then, after being detected in breach of the disqualification order on 1 July 2008, he offended again, illustrates his disregard of the court order.

27. A sentence of imprisonment is called for to demonstrate that disqualification orders must be observed, and that breaches of such orders will ordinarily be met with severe punishment.  Indeed, before the Magistrate his counsel acknowledged this.  No doubt Mr Collins now realises more clearly the seriousness of his situation, but his conduct indicates a need for punishment that will be a real deterrent to him.

28. A sentence of imprisonment is appropriate for each offence, notwithstanding Mr Collins’s personal circumstances, to which I will refer shortly.

29. I impose a sentence of two weeks imprisonment in respect of the offence of 1 July 2008.  I impose a sentence of 19 days imprisonment in respect of the offence of 23 July 2008.  In each case I have reduced the sentence by one week on account of Mr Collins’s pleas of guilty.  I have imposed a slightly shorter sentence in respect of the first offence, because I regard the second offence as more serious.  For the second offence the sentence of 19 days imprisonment reflects the fact that Mr Collins has spent two days in custody before he was released on bail pending this appeal.

30. As the matter comes before me on an appeal against sentence by Mr Collins, and the appeal has succeeded, although on what might be called technical grounds only, the sentence imposed should not be any heavier than the sentence imposed by the Magistrate.

31. Accordingly, although it would be appropriate to order that the second sentence be cumulative upon the first sentence, I order that the sentences operate concurrently.

32. I turn to the question of suspension.

33. The fact that I regard the offending as contumacious means that there is little in the circumstances of the offences that can be relied upon to support a finding of good reason to suspend the sentences:  see Nash v Police [2009] SASC 112 at [47]. All that can be said is that Mr Collins might not have fully appreciated the seriousness of what he was doing. His personal circumstances are entitled to considerable weight. I summarised them earlier in my reasons. In particular, Mr Collins has not been in prison before. A court is always reluctant to sentence a young man to imprisonment for the first time. His employment record is good, and imposing a sentence of imprisonment will make it more difficult for him to find new employment. His partner will suffer if he is imprisoned. He probably has learned his lesson, but his record indicates that there may still be a need for a sentence that has a real deterrent effect.

34. Taking all matters into account, I consider that the need to uphold the disqualification order, and the need for personal and general deterrence lead to the conclusion that there is not good reason to suspend the sentence that I impose.  Accordingly, I decline to suspend the sentences of imprisonment.

35. It might be suggested that although the appeal against sentence has succeeded, Mr Collins has received a heavier penalty than that imposed by the Magistrate in respect of the first of the two offences in question.

36. I do not accept that that is so.  The Magistrate sentenced Mr Collins to imprisonment for three weeks, suspended upon him entering into a bond to be of good behaviour for 12 months.  That was a sentence that he might have had to serve if he breached his bond.  I have sentenced Mr Collins to imprisonment for two weeks, the two weeks operating concurrently with the sentence of 19 days imprisonment for the second offence.  I consider that the sentence that I have imposed for the first offence is more lenient than the sentence that the Magistrate imposed.

37. I add, as should be apparent, that I agree with the sentence that the Magistrate imposed for the second offence.  I set aside that sentence only to enable me to deal with the matter as a whole, and to enable me to make allowance for time spent in custody in respect of the second offence.  If I had chosen to allow the sentence for the second offence to stand, subject to an adjustment for time spent in custody, the end result for Mr Collins would have been the same, even if I had decided not to impose a sentence of imprisonment in respect of the first offence.

38. In short, in the unusual circumstances of the case, I consider that the approach that I have taken is proper, although it is the outcome of a successful appeal by Mr Collins.

    Conclusion

39. I allow the appeal against sentence.

40. I set aside the sentences imposed by the Magistrate in respect of the offences against s 91 of the MVA on 1 July 2008 and 23 July 2008.

41. In relation to the offence of 1 July 2008, I impose a sentence of two weeks imprisonment.  In respect of the offence on 23 July 2008, I impose a sentence of imprisonment for 19 days.  I direct that those sentences operate concurrently.  I do not order that the sentences be suspended.

42. The sentences imposed by the Magistrate in respect of the other offences of 1 July 2008 will stand.

43. I do not impose any further period of licence disqualification.

44. I direct that the sentences of imprisonment be taken to have commenced on the day on which Mr Collins is taken into custody for the offences now before the Court.