Drivas v Police No. Scgrg-97-1695 Judgment No. S6520
[1998] SASC 6520
•20 January 1998
DRIVAS v POLICE
Magistrates Appeal
Olsson J
The appellant appeals against a custodial sentence imposed on him, on 11 December 1997, by a stipendiary magistrate. He contends that it is manifestly excessive and that any custodial sentence imposed ought to have been suspended.
The appellant pleaded guilty to two offences, both committed at Sefton Park on 15 December 1996.
At about 9.20 pm on that day the appellant was seen driving a green Nissan sedan south along May Street, Sefton Park. Police officers on mobile patrol spoke to him when his vehicle pulled up in front of premises at 12 May Street. They did so because they had observed that one only of the brake lights of the Nissan was operative.
It rapidly appeared that the appellant was grossly affected by alcohol. A breath analysis conducted shortly after the event returned a reading of 0.254%. Enquiries then revealed that the appellant had been disqualified from holding or obtaining a drivers licence until 11 April 1997. He offered no explanation for driving whilst disqualified.
When the matter came before the learned magistrate it was revealed that the appellant had a significant, relevant antecedent record. Details of this were:-
| 20 June 1991 | -..... convictions for driving under the influence and disobeying traffic lights. Fined $765 and disqualified for 12 months. |
| 20 May 1992 | -..... driving with prescribed concentration of alcohol and no licence. Fined $800 and no licence |
| 12 July 1995 | -..... driving with prescribed concentration of alcohol, driving unregistered and uninsured vehicle, driving without due care. Fined $1,800 and disqualified for 21 months. |
....... Against that background the learned magistrate made the following orders:-
As to count 1 - Fined $2,000 and disqualified for 3 years
As to count 2 - 14 days’ imprisonment, to commence forthwith
....... The learned magistrate did so having regard to the following submissions made by counsel for the appellant:-
(1)... The appellant was a single man aged 28 years. He was employed full time as a commercial accounts executive. He had been so employed for approximately five years and his employer was unaware of his offence.
He received a net income of $2,200 per month and, as part of his employment, was, at the time when he was sentenced, required to travel by vehicle to Alice Springs and Darwin, as well as around the metropolitan area of Adelaide, averaging 200 kilometres per week.
He was taken into custody for some two hours after the commission of the offence on a warrant for non payment of the fine imposed in relation to the drink-driving offence to which his 1995 offence related.
On the day of the present offences the appellant had, for a considerable period, been drinking with a friend at the Northern Tavern Hotel. He had walked to the hotel and intended to walk back. His friend had driven his car there.
Both the appellant and his friend were extremely drunk.
On the spur of the moment the appellant agreed to drive his friend’s vehicle. His decision to do so was made whilst he was in a befuddled state and without proper, or rational, consideration. He gave little or no thought to the fact that he was then currently disqualified.
The appellant simply cannot explain why he did what he did - his actions were not intended to be deliberately contumacious.
He has a good employment record and lives with his parents, who are of Greek background. They are elderly and in ill-health and have no knowledge of his offending. He is also President of the Collingrove Tennis Club.
The requirement to actually serve a custodial sentence will, almost certainly, result in loss of employment and cause serious cultural problems with the appellant’s family, which is of Greek origin.
In the course of his remarks as to penalty the learned magistrate emphasised these features of the facts:-
.this was the fourth drink driving offence committed in the space of the preceding six years.
.the appellant drove with five times the allowable blood alcohol concentration.
He felt that those factors, coupled with the absence of any suasive exculpatory reason for the driving, combined to exclude suspension of what was, plainly, an inevitable custodial sentence as a serious sentencing option.
It is, of course, true that, in Police v Cadd and Ors (1997) 192 LSJS 230 a specially constituted Full Court held that, in cases of this type, a custodial sentence and the requirement actually to serve it is not to be taken as being an almost inevitable consequence of conviction. On the other hand it accepted that such a sentence will normally flow from conviction if the driving was “contumacious” in the relevant sense.
I pointed out in Valentincic v Police (Olsson J, 4 December 1997, S6477, unreported), that driving will be held to be contumacious where there has been a flagrant and wilful disobedience of an order of suspension, in the sense that a person deliberately drives a motor vehicle in circumstances which are more than trivial and which involve a knowing and, in a sense, defiant breach of the order.
In the instant case virtually the only matter which can be relied upon in an attempt to take the driving out of the “contumacious” category is the suggestion that, at the time, the appellant was so befuddled by his state of intoxication that he did not make a deliberate and rational decision when he agreed to drive.
Whilst that suggestion may have some force it must, nevertheless, be borne well in mind that, as the learned magistrate well recognised, serious aggravating features present were the appalling antecedent record of the appellant for like or associated offences and the extreme degree of intoxication involved. There can be no doubt that the appellant was a considerable menace to all other road users. On any view this was a very serious offence of its type and the degree of intoxication of the appellant was, plainly, a circumstance of aggravation, rather than a factor of mitigation.
As I reiterated in Laxton v Justice (1985) 38 SASR 376:-
“It is never enough that the appellant judge consider that, if he had been in the position of the primary tribunal, he would have adopted a different course. If a sentencing outcome is to be interfered with it must appear that some error has been made in exercising the judicial discretion. Before intervention is warranted it must be patent that the court of first instance has acted upon a wrong principle, has allowed extraneous or irrelevant matters to guide or affect it, has mistaken the facts or has not taken into account some material consideration. In some cases it may not appear how the tribunal of first instance has reached the result embodied in the order sought to be impugned but, if upon the facts, it is plainly unreasonable, the appellate court may infer that, in some way, there has been a failure properly to exercise the judicial discretion.”
Whilst I have carefully considered all that has been put to me on behalf of the appellant I am, on the facts of this case, quite unable to perceive how it can be said that the learned magistrate fell into error. On the contrary, I consider that the sentence complained of was, in the circumstances, quite modest. The stage has been reached at which it needs to be brought home to this appellant that continuing drink driving offences, coupled with driving whilst disqualified, will, inevitably, attract condign punishment. To seek to excuse the gravity of his conduct on the basis that he was befuddled by alcohol is to deny the public the very protection which it is entitled to have. If the appellant loses his employment then he has brought that situation about by his continuing resort to excessive consumption of alcohol.
In the course of his submissions Mr Rainford, of counsel for the appellant, sought to contend that the overall sentencing package offended the totality principle because what was in issue was a single course of conduct. Whilst it is true that the offences did arise from a single ongoing course of conduct, the fact remains that two quite separate offences were committed, each of them serious in nature. Viewed from that perspective, each of the components of the sentencing package constituted but a modest penalty for the offence in question. Neither was manifestly excessive, nor was their totality. On the contrary, it seems to me that the term of the custodial sentence erred on the side of undue modesty.
Against that background, I have no hesitation in dismissing the appeal.
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