England v Police No. Scciv-01-1129

[2001] SASC 367

ENGLAND  v  POLICE
[2001] SASC 367

Magistrates Appeal:  Criminal

1. MULLIGHAN J                 The appellant appealed against a sentence of imprisonment for 14 days upon his having been convicted of driving a motor vehicle whilst disqualified from holding or obtaining a licence to drive a motor vehicle.  After hearing argument I allowed the appeal, set aside the sentence and imposed a sentence of 40 hours’ community service to be completed within six months from the date of the hearing, namely 4^th September 2001.  I indicated that I would give reasons for my decision at a later time and I now proceed to do so.

2. Police officers detected the appellant driving an unregistered and uninsured motor vehicle at Kadina on 26^th October 2000 at about 4.22 pm.  He was accompanied by a passenger.  The police officers made a check concerning the registration of the vehicle and ascertained that it was not registered or insured. In the course of making the check, they lost sight of the vehicle.  Later they saw the appellant and his companion on foot in Kadina and located the motor vehicle at a shopping centre.  They waited for the appellant to return to the vehicle but as he had not done so for a time, they resumed patrol and saw him and his companion at a service station.  They spoke to the appellant but he declined to answer any questions.  He declined to say who had been driving the motor vehicle on that day or to identify the owner.

3. On 15^th June 2000 the appellant was convicted of charges which may briefly be described as failing to indicate, driving an unregistered and, presumably, uninsured motor vehicle, failing to comply with a direction to submit to an alcotest, resisting police and driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol. It seems from the information presented on the hearing of the appeal that the appellant was only sentenced for the offence of drink driving. He was fined $600 and was disqualified from holding or obtaining a licence to drive a motor vehicle for a period of six months. This period of disqualification commenced on 1^st July 2000. In an affidavit received on the hearing of the appeal the appellant acknowledged that he must have been warned by the Magistrate who imposed the penalties not to drive a motor vehicle.

4. The appellant was charged with driving an unregistered motor vehicle, driving an uninsured motor vehicle and driving whilst disqualified. He was not represented by a lawyer and pleaded guilty to all three charges. With respect to the first and second charges one penalty was imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. He was fined $200 and ordered to pay fees and a levy amounting to $177.50. There is no appeal against that sentence.

5. The grounds of appeal were, (1) that the sentence was manifestly excessive, (2) that the learned Magistrate erred in not suspending the sentence, (3) that a sentence of imprisonment was not appropriate in all of the circumstances, (4) that the learned Magistrate failed to advise the appellant of his rights upon the plea of guilty having been entered and (5) that before imposing the sentence the learned Magistrate failed to inform the appellant that he might impose a sentence of imprisonment.

6. As the appellant was not represented before the learned Magistrate, little information about his personal circumstances and the reason for the offending was placed before him. The appellant is aged 40 years. He lives at Wild Horse Plains and is in receipt of social security benefits. At the time of the offences, he did not have a motor vehicle and his daughter and friends provided transport for him on the few occasions each week when he left Wild Horse Plains.

7. He has no previous convictions apart from the convictions when he was before a Magistrate on 15^th June 2000. In his affidavit he deposed to not ordinarily driving a motor vehicle after the order for disqualification of licence was made. I have assumed that meant that he did not breach the order except on the occasion which is the subject of the charges. On the day of the offences he was required to collect his allowance from Centrelink and he travelled to Kadina for that purpose and also to undertake his shopping. He drove the motor vehicle a distance of about 100 kilometres. His passenger did not hold a current licence to drive a motor vehicle.

8. He was born in the United Kingdom and moved to Australia in 1964. He was married for about 20 years and has three children. His middle daughter is aged 17 years and lives with him at Wild Horse Plains. She is pregnant and is expecting her child soon. The appellant has a long history of stable employment. When his marriage broke down in 1997, he was greatly distressed and suffered depression. His drink driving offence occurred about the time his marriage was later dissolved and when he was drinking to excess. He has since abstained from drinking alcohol.

9. The property at Wild Horse Plains is being cared for by the appellant on behalf of an acquaintance who lives interstate. He is required to care for livestock and maintain fencing. He also engages in the restoration of antique furniture and intends to commence a business in that field in due course. He occasionally agists horses at the property and his daughter has been active in pony clubs and at gymkhanas. The appellant deposed that his daughter is emotionally dependent upon him as her confinement approaches and she could not maintain the property and the livestock if he had to serve a term of imprisonment.

10. The appellant also maintained that he was not aware that he could be sentenced to imprisonment for driving disqualified. He deposed to not being the type of person who would deliberately try to defy authority.

11. It appears that the learned Magistrate was not informed of any of these matters. The appellant deposed that he expected that a fine would be imposed. He could not afford the services of a solicitor and he did not anticipate a sentence of imprisonment.

12. In his remarks on sentencing, the learned Magistrate said:

    “If people like you choose to drive in contravention of court orders then you represent a challenge to the authority of the courts. That challenge will not be allowed to succeed. Yours was a contumacious disregard of a court order made on 15 June of last year. There was no good reason for you driving your vehicle in the Kadina area.

    Given those factors in my view this is a case where imprisonment is the appropriate penalty for driving disqualified. I do not consider the period of imprisonment need be long but sufficiently long to bring home to you and to others that if you do drive in contravention of court orders then there is a very serious consequence.”

13. The first two grounds of appeal and the last ground were considered together.

14. There was no material before the learned Magistrate to establish that the appellant’s driving of the motor vehicle whilst disqualified was “contumacious offending”:  Police v Cadd (1997) 69 SASR 150. True it is that the appellant had not placed information before the learned Magistrate, but there was nothing in the circumstances of the offence as revealed by the police prosecutor which indicated contumacious offending. The appellant was unrepresented. Such a finding should not have been made, in the circumstances, given its significance, without enquiry. The necessary attitude of defiance should not be assumed. In my view, the learned Magistrate erred in reaching that conclusion on the material which was before him. As may now be seen, the appellant claims to have had a reason to drive on the occasion in question which does not amount to contumacious offending.

15. However, even if the offending was contumacious, that does not mean that a sentence of imprisonment had to be imposed. As is made clear in Police v Cadd, even if contumacious, the circumstances of the offending or the offender may dictate some less severe form of punishment: see pp171 and 179. Given the positive features of the background of the appellant and his present circumstances, a sentencing option other than imprisonment was justified in the circumstances.

16. Also, the learned Magistrate did not have regard to any matter favourable to the appellant. He did not take into account his plea of guilty even though he should have known that the appellant entered his plea at an early opportunity.

17. I now turn to the remaining grounds of the appeal. A factual issue arose. The police prosecutor deposed that the learned Magistrate informed the appellant of his rights, including his right to legal representation, and warned him that a short term of imprisonment was likely for an offence of driving whilst disqualified and stressed to him that legal advice should be sought prior to the matter proceeding. He further deposed that the appellant said that he wished the matter to proceed and then entered his pleas of guilty. The police prosecutor then recounted the allegations of the offending of the appellant. According to the police prosecutor, the learned Magistrate then invited the appellant to make submissions but the police prosecutor could not remember if he did so.

18. It is not clear from the affidavit of the appellant whether he contests those assertions. It was submitted in argument on his behalf that the learned Magistrate erred in failing to discharge his function adequately with respect to an unrepresented defendant who was facing a serious charge. Reference was made to the well known observations of Wells J in Cooling v Steel (1971) 2 SASR 249 at 250-251. It is unnecessary for present purposes to set out all of those observations. They are summarised by Wells J at 251:

    “In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”

19. In conformity with these responsibilities, a Magistrate who is minded to impose a sentence of imprisonment should inform an unrepresented defendant accordingly and give him a further opportunity to obtain legal representation and present further submissions or evidence which could dissuade the Magistrate from that course. Where no submissions are made by an unrepresented defendant and imprisonment is a possibility, the Magistrate should question the defendant to see if there is a basis for a more merciful approach to sentencing. In a case of driving disqualified, the defendant should be given every opportunity to show that the offending was not contumacious. That concept should be explained and the defendant’s case ascertained by questioning if possible. Of course, when explaining the rights of a defendant to an unrepresented person, it must be made clear that there is no obligation to answer questions and any questioning should not be in the nature of an interrogation. However, the Magistrate, in order to do justice, should do what is necessary to see if there are any matters in mitigation. I expect that many persons who appear in court unrepresented can be overwhelmed and may be unable to express themselves adequately without some assistance. An assumption of contumacious offending should not be made without a sound factual basis and without the unrepresented person being given every opportunity to address the matter.

20. These days there is a duty solicitor available in most Magistrates Courts and an unrepresented defendant facing a serious charge should be directed to that solicitor for assistance.

21. I did not find it necessary to make further enquiry as to what appears to be a dispute between the police prosecutor and the appellant as to what the learned Magistrate said as there were other reasons to allow the appeal.