Donald Phillip Edwards v Charles Allan John McCormick No. SCGRG 92/2541 Judgment No. 3745 Number of Pages 5 Magistrate's Appeal Driving Whilst Disqualified

[1992] SASC 3745

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Magistrate's appeal - particular offences - driving whilst disqualified - Appeal against sentence of 5 months imprisonment imposed on admitted charge of driving whilst disqualified - appellant observed to commit minor infringement of diverging from traffic lane without giving signal - on being apprehended found to be driving while disqualified, and also driving with O.l45 per cent blood alcohol - explanation through counsel that he had taken over the driving a short time before only because his pregnant girlfriend who had been driving, was experiencing stomach cramps, not challenged by the complainant - notwithstanding a poor record of traffic offences, including previous sentences of imprisonment for driving whilst disqualified held that Magistrate failed to give due weight to the submissions as to the extenuating circumstances - sentence of imprisonment reduced to 3 months - separate penalty of 8 years disqualification on related conviction for driving with excess blood alcohol held to be within a proper exercise of the sentencing discretion. Road Traffic Act 1961ss47a, 47b, 72 and 91. Coombe v Douris
(1987) 47 SASR 424 and Aldridae v Bates (1989) 49 SASR 532, considered.

HRNG ADELAIDE, 7 December 1992 #DATE 7:12:1992
Counsel for appellant:     Mr R D Wyatt
Solicitors for appellant:    W A G Morris, Pearce and
   Associates
Counsel for respondent:     Ms J G Olsson
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed to the extent that in lieu of the order of imprisonment of five months there be substituted an order for imprisonment of three months.

JUDGE1 PERRY J The appellant appeals against a sentence of 5 months imprisonment imposed on an admitted charge of driving while suspended. He also appeals against his disqualification for eight years from holding or obtaining a driver's licence on a related charge of driving with excess blood alcohol. 2. The appellant pleaded guilty in the Magistrates' Court at Port Pirie to three charges in all. They were that on 8 July 1992 at Port Augusta he diverged the motor vehicle which he was driving on National Highway 1, without giving an appropriate signal, contrary to s. 72 of the Road Traffic Act. The other two charges were that on the same occasion he drove the motor vehicle while disqualified from holding or obtaining a licence contrary to s. 91 of the Act, and that he drove while there was present in his blood the prescribed concentration of alcohol as defined in s. 47a of the Road Traffic Act, contrary to s. 47b of that Act. The concentration of alcohol alleged was 0.145 grams in 100 millilitres of blood. 3. Following his plea of guilty to each of those charges, the assistant police prosecutor who appeared for the complainant, indicated to the court that the appellant had been apprehended at about 10. 40 pm. on the evening in question after his car was seen to diverge from a left side emergency stopping lane on to the main carriageway of the highway. After the vehicle was stopped it was established that he was driving whilst disqualified. Furthermore, upon the arresting police officer detecting liquor on his breath, a breath analysis was conducted at 11. 20 pm, which indicated the percentage of blood alcohol to which I have just referred. 4. The appellant's criminal record was tendered. That indicated that he was 27 years of age. Relevantly it set out convictions on various driving counts since 1989, including driving with prescribed concentration of alcohol, and driving whilst disqualified. It appears that the appellant's licence was first disqualified on 3 January 1989, when it was disqualified for 12 months. Then on 20 October 1989 it was disqualified until further order. 5. On the same day, that is 20 October 1989, he was convicted of driving whilst disqualified, upon which he was sentenced to 4 weeks imprisonment, suspended upon his entering into a 12 months good behaviour bond. 6. On 1 November 1992, following a conviction for driving under the influence, the appellant's licence was again disqualified until further order, and he was sentenced to 4 months imprisonment. 7. The appellant was represented by counsel in the court below, who did not join issue as to the allegations made by the complainant. He made submissions, however, as to the immediate circumstances of the offending. He submitted to the court that the appellant had a relationship which had extended over some two years with a woman who was, at the time, expecting his child. He said that on the day of the offence, the defendant and his girlfriend had travelled to Port Augusta to visit friends, the girlfriend driving, and that when they set out the appellant had no intention of driving that day. The offence was committed when the appellant was travelling between the homes of two of his friends at Port Augusta. The girlfriend who was still driving began to suffer stomach cramps and pulled over into the emergency stopping lane. It was put to the learned magistrate that under the stress of what he perceived as a medical emergency, the appellant made what was conceded to be a foolish decision to take over as driver, intending to drive to a friend's home nearby. It was submitted that he drove for some two to three hundred metres only, before he was pulled up. 8. This account of the immediate circumstances of the offending was not placed under challenge by the complainant. 9. During the course of his remarks on sentence, the learned magistrate observed that the vigilance of the police officers in detecting a very minor infringement of the law that may well have prevented serious consequences, those being that: "you might well have had an accident in the car causing an injury to your girlfriend which might well have caused an early onset of labour and the death of a baby that was about to be born." 10. The magistrate then made some further observations as to the road toll generally, and the fact that on three prior occasions the appellant had been told that he was not to drive a motor vehicle. He went on to say:
    "In fact, you have been disqualified from driving until
    further order because the courts have thought you were so
    dangerous to the rest of the community. Yet, in defiance and in
    contempt of the people that sit in this room and elsewhere in
    the community your attitude is 'I don't give a bother. I'll do
    what I want, when I want and how I want'. Its through that sort
    of conduct that people kill each other. I wonder which one of
    us, when you finally get out of prison, want to be on the same
    road as you when you decide to go on another bender. Which one
    of us want to be killed by you because you don't give a bother
    about your girlfriend or her child or anybody else for that
    matter. That's the tragedy of it all and people who work in
    these courts know it is going to happen again. The greater
    tragedy is no matter how often we lock you and people like you
    up, you and people like you will continue to drive whilst
    disqualified. Your complete indifference concerns all of us
gravely." 11. The learned sentencing magistrate then went on to impose the sentences appealed against together with a fine of $50 on the diverging charge. 12. On the conviction for driving with excess blood alcohol the learned magistrate imposed a fine of $1,500 and disqualified the appellant for the term which I have indicated, namely eight years. There is only one ground of appeal with respect to each of the orders appealed from, namely, that the sentence of imprisonment and the licence disqualification were each manifestly excessive. 13. The gravamen of the argument presented by Mr Wyatt, of counsel for the appellant, was that the learned sentencing magistrate erred in failing to take into account the immediate circumstances in which the offences were committed and in particular the appellant's perceived concern as to what he thought was a medical emergency. 14. He submitted also that the learned sentencing magistrate had failed likewise to take into account the uncontested assertion by counsel for the appellant in the court below that he did not intend to drive on that day, and only did so in the circumstances indicated and furthermore, for only a short distance before being stopped. 15. It was conceded both before the learned sentencing magistrate and before this Court that the appellant had a bad record, and it was not suggested that any sentence of imprisonment which the learned magistrate might otherwise have felt obliged to impose should have been suspended. The focus of the appeal against the sentence of imprisonment was simply that it was too long, and that it had proceeded on a basis which did not give sufficient weight to the extenuating circumstances in which the offence was committed. 16. The learned sentencing Magistrate's remarks to which I have referred, exhibited a certain degree of frustration at the conduct of the appellant in once again failing to comply with an order of suspension of his licence. That frustration was entirely understandable and I do not read the sentencing remarks as other than an attempt on the part of the learned magistrate to give to the appellant something of a dressing down, expressed admittedly in somewhat robust language, but intended to bring home to the appellant that persistent contempt of the orders of the court reflected in the offence of driving whilst disqualified could not be tolerated without more serious penalties being inflicted. 17. I do not accept the argument of counsel for the appellant that the omission by the learned sentencing magistrate to refer specifically to the extenuating circumstances which had been put by counsel for the appellant to the magistrate, indicates that the learned magistrate failed to take them into account. The early part of the sentencing remarks to which I have referred where there was an express reference to the condition of the appellant's girlfriend, coupled with the fact that the learned magistrate had only just been told of the appellant's explanation for driving on the day in question, means that must be taken to have had these matters in mind. The question arises, however, as to whether or not, and notwithstanding the comments which I have made, the sentence imposed was manifestly excessive. 18. The seriousness of the offence of driving whilst under disqualification has been emphasized again and again in this Court. Authorities such as Coombe v Douris (1987) 47 SASR 424 and Eldridge v Bates (1989) 49 SASR 532 contain passages which do not, for present purposes, need repetition, but which emphasize the concern which this Court takes at the defiance of orders for suspension, and which confirm the serious view which must be taken of the offence of driving whilst disqualified. 19. The fact remains that the maximum sentence under the statute is six months imprisonment, and the sentence imposed in this case is close to that maximum. I think that there is some weight in the submission by Mr Wyatt that the sentence imposed might fairly be regarded as something of a progression from the previous sentences of imprisonment imposed upon the appellant, and that the present term of imprisonment might have been fixed by reference to the fact that on the last occasion the appellant was sentenced to four months imprisonment. 20. Ms Olsson for the respondent suggested that the account given on behalf of the appellant by his counsel before the learned magistrate is not one that should have necessarily been accepted. But, in my opinion, if submissions are made embodying a factual explanation for the offence of the kind in question which was not placed under challenge by the complainant, the sentencing magistrate has little alternative but to accept those factual matters as the basis upon which, to the extent to which they were relevant, the sentence should be pronounced. 21. The fact that at the time he was apprehended the appellant was emerging from an emergency stopping lane tends to give some support to his suggestion that he had only just taken over the driving. 22. In all the circumstances, I have reached the view that five months must be regarded as an excessive penalty against the background of the circumstances as a whole and notwithstanding the poor record of the appellant, I consider that an appropriate penalty would have been three months imprisonment and the sentence of imprisonment will be reduced accordingly. 23. With respect to the appeal against the disqualification for eight years, in my opinion, the appellant has not made out any ground upon which the appeal as to that aspect of the matter should be allowed. On the contrary, the circumstances called for the imposition of a substantial period of disqualification and eight years was well within the sentencing discretion. The appeal against the order of disqualification will be dismissed. 24. In the result then, the appeal will be allowed to the extent that in lieu of the order of imprisonment of five months there be substituted an order for imprisonment of three months, but in all other respects the orders made by the learned sentencing magistrate are to stand.