Doecke v Police - [2006] SASC 210

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
DOECKE v POLICE
[2006] SASC 210
Judgment of The Honourable Justice White (ex tempore)
12 July 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal from sentence of licence disqualification imposed by a magistrate - disqualification of 3 years and 2 months - whether disqualification period manifestly excessive - appellant sentenced for 11 driving offences including one count of driving in a manner dangerous to the public contrary to s 46 of the Road Traffic Act 1961 (SA), and one count of driving unlicensed, having never held a licence, contrary to s 74(2) of the Motor Vehicles Act 1959 (SA) - where offence of driving unlicensed a "subsequent offence" - s 74(6) of the Motor Vehicles Act 1959 - Held: Penalty of 3 years licence disqualification mandatory in relation to "subsequent offence" against s 74(2) of the Motor Vehicles Act 1959 - penalty of 6 months disqualification mandatory in relation to offence against s 46 of the Road Traffic Act - disqualification of 3 years 2 months not manifestly excessive in the circumstances.
Motor Vehicles Act 1959 (SA) s 9, s 57, s 74, s 102; Road Traffic Act 1961 (SA) s 45, s 46, s 168; Criminal Law (Sentencing) Act 1988 (SA) s 15, s 16, s 18A, s 39, referred to.

DOECKE v POLICE
[2006] SASC 210
Magistrates Appeal (ex tempore)

WHITE J: This is an appeal from a sentence of licence disqualification imposed by a magistrate.
On 1 May 2006, the appellant was sentenced for 11 offences. On each of 5 October 2000, 20 October 2000, and 4 February 2001, the appellant committed the offences of driving an unregistered vehicle on a road contrary to s 9 of the Motor Vehicles Act1959 (“MVA”), and driving an uninsured vehicle on a road, contrary to s 102 of the MVA.
On 4 April 2001, the appellant committed four offences. They were driving a vehicle in a manner dangerous to the public, contrary to s 46 of the Road Traffic Act1961 (“RTA”); driving without due care, contrary to s 45 of the RTA; driving an uninsured vehicle contrary to s 102 of the MVA; and failing to effect a transfer of vehicle registration within 14 days of the acquisition of a vehicle, contrary to s 57 of the MVA.
Finally, on 8 October 2005, the appellant committed the offence of driving a vehicle on a road when not authorised to do so, contrary to s 74(2) of the MVA. As at 8 October 2005, the appellant had never held a driver’s licence or a permit.
In sentencing the appellant, the magistrate invoked s 18A of the Criminal Law (Sentencing) Act 1988 (“CLSA”). He ordered the appellant to perform 100 hours of community service within a period of 12 months, and disqualified the appellant from holding or obtaining a driver’s licence for a period of three years and two months. As I have already noted, the appellant appeals against the order with respect to disqualification only.
The appellant is now aged 35. She is an unemployed single mother of two children aged 13 and 10. She has lived in Mt Gambier for the whole of her life.
The appellant acknowledges that in the late 1990s, and in 2000 and 2001, she was involved in using, and dealing in, illicit drugs. The offending which occurred in 2000 and 2001, for which she was sentenced by the magistrate, occurred at a time in her life when she was making use of illicit drugs and at a time when she was dealing with the strain of a dying mother. The appellant submits that she has now rehabilitated herself. Although she had not, as at 8 October 2005, ever held a driver’s licence, she has since then, and with considerable effort, as I understand it, obtained a learner’s permit. This has been a sought-after achievement.
The appellant regards the use of a licence, and the ability to drive a car, as important, both in the care and development of her children, and to her ability to obtain employment. The appellant has informed me that, were it not for the disqualification imposed by the magistrate, she expects to receive her probationary licence at the end of this month.
The steps which the appellant has taken to rehabilitate herself appear to be impressive. It is unfortunate that she is now suffering the consequences of offences committed at a much earlier stage in her life.
The magistrate seems to have accepted this. He has imposed sentences which, although to the appellant seem severe, are quite moderate when one takes account of the constraints to which the magistrate was subject. Instead of imposing fines, the magistrate imposed a community service order as he considered that better suited to the appellant’s circumstances. He also waived the prosecution fees and court costs in respect of four of the five complaints with which he was dealing, so as to reduce the financial burden of his orders on the appellant.
With respect to the licence disqualification, the magistrate had a limited discretion only. The offence of driving while not authorised to do so was not the first offence of that kind committed by the appellant. In 1996, the appellant committed the offence of driving without the requisite licence on three separate occasions. Of more significance, however, is that on 13 March 2004, the appellant committed the offence established by s 74(2) of the MVA, namely, driving a vehicle on a road at a time when she was not, and had never been, authorised to do so.
On the same day, and at the same time, the appellant committed the offences of driving an unregistered vehicle on the road and driving an uninsured vehicle on the road. In respect of those offences, the appellant was fined $200 and disqualified from holding or obtaining a driver’s licence for a period of one week.
As the offence of driving without a licence, which was committed on 13 March 2004, was within the period of three years from 1 May 2006, the offence committed on that day had to be treated as a “subsequent offence”.[1]
[1] Motor Vehicles Act 1959 (SA), s 74(6).
Section 74 provides for quite severe penalties in respect of a subsequent offence of driving without a licence. An offender may be fined an amount up to $5000 or imprisoned for a period up to one year. In addition, where a court convicts a person of a subsequent offence under s 74(2) it must order that the person be disqualified from holding or obtaining a driver’s licence for a minimum period of three years. Further, s 74(5)(b) expressly provides that a court cannot reduce or mitigate in any way the minimum period of disqualification which must be imposed.
Subject to one matter which I will mention shortly, that meant that the magistrate in this case was required, by an Act of Parliament, to impose a minimum licence disqualification of 36 months. The period of disqualification which the magistrate did impose was only two months in excess of that minimum.
In addition, in relation to the offence of driving in a manner dangerous which was committed by the appellant in April 2001, the magistrate was bound, on conviction, to impose a licence disqualification of not less than six months.[2] That period of disqualification could not be reduced or mitigated in any way unless the magistrate was satisfied, by evidence given on oath, that the offence was trifling. I note that the minimum period of disqualification which must be imposed for a breach of s 46 has, since 2001, been increased.
[2] Road Traffic Act 1961, s 46(3)(a).
In addition, in relation to each of the other offences committed by the appellant, other than the offence of failing to register the transfer of a vehicle within 14 days of the acquisition of the vehicle, it was open to the magistrate to order that the appellant be disqualified from holding or obtaining a driver’s licence.[3] It was also open to the magistrate to order that the periods of licence disqualification which he was bound to impose should be concurrent rather than cumulative.
[3] Road Traffic Act 1961, s 168.
The magistrate’s sentencing remarks do not indicate how the period of licence disqualification of three years and two months was reached. I think it likely that that period was fixed pursuant to s 74 of the MVA in respect of the offence of driving while unauthorised and that all other licence disqualifications, without being separately identified, made concurrent with it for the purpose of reaching a single s 18A sentence. If the magistrate had not proceeded in that way, then he would have had to impose a single minimum licence disqualification of at least three years and six months.
The difficulties which being unable to obtain or hold a driver’s licence will present for the appellant are quite understandable. They are difficulties which are experienced by many persons in cases of licence disqualification. However, for the reasons which I have already given, Parliament required the magistrate, on convicting the appellant of the offence of driving whilst unauthorised, to impose a minimum licence disqualification of three years. I do not consider, in all the circumstances of this case, that it can be said that the fixing by the magistrate of a period which was two months in excess of the minimum period was excessive so as to warrant interference by this Court.
I have referred to the mandatory requirement, in each of s 74(5) of the MVA and s 46(3) of the RTA, that a licence disqualification be imposed when the court convicts a person of an offence against those sections. There is, as Mr McDonald has submitted, a question as to whether the word ‘convicts’ in each of those sections is a reference to the formal entry of a conviction, or alternatively, a reference more generally to a finding of guilt by a court or an acceptance by a court of a plea of guilty. If the former, questions may arise in some cases as to whether the court should exercise a power to deal with an offence against s 46 or s 74 without recording a conviction.
Section 15 of the CLSA permits a court to dismiss a charge without recording a penalty if it is satisfied that the offence was trifling. Sections 16 and 39 of the CLSA permit a court to deal with an offence without recording a conviction where the court considers that there is good reason to do so.
I do not consider it necessary, in the circumstances of this case, to consider the meaning of the word “convicts” in each of s 74(3) and s 46(5). That is because I am satisfied that even if the word “convicts” referred to the recording of a conviction, it would not be appropriate in the particular circumstances of this case to exercise any of the powers in ss15, 16 or 39 of the CLSA.
In order to exercise the power pursuant to s 15, the court would have to be satisfied that the offence was trifling. In my opinion, it is not possible, reasonably, to say that the offence committed by the appellant on 8 October 2005 could or should have been characterised as trifling.
In order for the magistrate to have exercised the powers pursuant to s 16 or s 39 of the CLSA, the magistrate would have had to have been satisfied that there was good reason for adopting the course of dealing with the matter without recording a conviction. The circumstances in which good reason may be found for the purposes of s 16 are set out in that section. Section 16 provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service or both, and the court is of the opinion –
(a)that the defendant is unlikely to commit such an offence again;
(b)that having regard to
(i)the character, antecedents, age or physical or mental condition of the defendant,
(ii)the fact that the offence was trifling
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
In the circumstances of this case, I do not consider that it can be said that the magistrate should have found that there was good reason within the meaning of those provisions. The appellant acknowledges herself that she has a poor antecedent record. She has five previous convictions for drug offences, two previous convictions for unlawful possession, four previous convictions for driving without a licence, four previous convictions for driving an unregistered vehicle and one previous conviction for the offence of receiving. In those circumstances, it could not be said that, having regard to the character or antecedents of the appellant, would have made it appropriate for s 16 to be invoked.
In addition, having regard to the appellant’s history, I do not consider that one could say that the magistrate was in error in not concluding that the appellant was unlikely to commit a s 74 offence again.
For similar reasons, I do not consider that the magistrate was in error in not invoking s 39 of the CLSA.
The legislative intention which is manifested in s 74 of the MVA is that it should, by the imposition of a severe sanction, be brought home to persons that they must not drive a vehicle on a road unless authorised to do so. That is a factor which would need to be taken into account as well when one is considering whether or not the ameliorative provisions contained in ss15, 16 or 39 of the CLSA should be invoked.
For these reasons, my conclusion is that this appeal should be dismissed.