FLETCHER v POLICE No. SCGRG-99-133 Judgment No. S110

FLETCHER v POLICE
[1999] SASC 110

Magistrates Appeal

PRIOR J: Appeal against a sentence imposed in the Magistrates Court at Murray Bridge on 18 January 1999.
The appellant then pleaded guilty to driving under the influence of liquor and driving whilst disqualified from holding or obtaining a driver's licence.[1]
[1] Road Traffic Act, 1961 s47, Motor Vehicles Act, 1959 s91
The evidence before the magistrate was that, on the occasion the subject of the charge, the appellant was then driving with a considerable concentration of alcohol in his blood. A level of .186 grams in 100 millilitres of blood was recorded when the appellant submitted to a breath analysis test at the Murray Bridge Police Station soon after he was detained early in the hours of the morning of 1 August 1998. The police had been summonsed to a particular location within Murray Bridge upon reports of a small vehicle driving erratically in the area. When the appellant was spoken to by police he was obviously affected by liquor. Inquiries made subsequently disclosed that the appellant had been disqualified from holding or obtaining a driver's licence from 6 July 1998 until further order. Thus the court had to deal with someone who had relatively recently been the subject of a disqualification order. The appellant admitted to police that he knew he was disqualified and that he had received a letter telling him so before the incident then before the court had occurred.
The magistrate was informed of the fact that the appellant had a number of relevant previous convictions. One was for speeding. Another conviction within two months of that matter was also in the Murray Bridge Magistrates Court, that was for driving whilst disqualified. For that offence he was required to perform community service. Of course it was a matter of some significance to the magistrate in this case that he was therefore dealing with a person for a second offence of driving whilst disqualified. Two other matters dealt with in 1996 related to failure to show “P” plates and driving a defective vehicle. The magistrate fined the appellant $800 and disqualified him from obtaining a driver's licence for 13 months on the admitted charge of driving under the influence. As for driving whilst disqualified the appellant was sentenced to 28 days imprisonment.
In this appeal it is said that the magistrate erred in two respects. By the notice of appeal it was said his Honour erred by failing to find good reason for suspending the sentence of 28 days’ imprisonment. On hearing of the appeal a further and separate ground was advanced. That was that the magistrate erred in finding the offending contumacious.
In submissions put to the magistrate the appellant's counsel emphasised that the appellant was then but 21 years of age and that as a younger man, although he had been in serious trouble for a number of dishonesty offences, he had since the middle of 1996 led a law abiding life. There was reference to the absence of any custodial sentence and reference to dishonesty offences, particulars of which were not given to the court by the prosecution.
The personal circumstances of the appellant were the subject of some detailed submissions. It was put to the magistrate that the appellant's offending was not such that it could be considered truly contumacious as he had been convinced by another person that there was a pressing need for him to drive and that this occurred at a time when the appellant was very inebriated and at a time when he had not turned his mind to the fact that he was disqualified.
It was put that the most serious aspect of the appellant's offending was the fact that he drove with such a high alcohol reading, but that was an issue that could and should be addressed in fixing a penalty for the drink driving offence that the appellant was then about to be sentenced for.
The magistrate was told that the appellant had been to a hotel with a group of friends and then moved on to the home of one of the group. In the six hours before the offence the appellant had consumed a significant amount of alcohol and was at the very least moderately affected by liquor at the time he came to the attention of police. In the period leading up to the offending the appellant had been driven from place to place by a friend who had refrained from drinking liquor up until the time the group arrived at the private residence. The owner of the vehicle had told the appellant that he was concerned about his vehicle being damaged or stolen because it was in a rough neighbourhood and because the private residence had no driveway in which the vehicle could be parked. The appellant responded to a plea to drive the Toyota to its owner's home but a half a kilometre away. It was put that the appellant had gullibly agreed to drive the vehicle and did not pause to think about the disobedient nature of his actions. Counsel put to the magistrate that the appellant's disqualification at the time of the particular offences was for non-payment of fines and that it was not a court imposed disqualification. It was counsel's submission that although the appellant now understood why the court took the offence of driving whilst disqualified so seriously, at the time of his offending the safety of the appellant's friend's vehicle and the fact that he was significantly under the influence of liquor were the only things he really turned his mind to before deciding to drive.
In his sentencing remarks the magistrate observed that there was no urgency about the trip that the appellant took on 1 August 1998. As to that the magistrate was entirely correct. The magistrate saw it as a case of the appellant voluntarily agreeing to a request of friends to drive because they thought that they were more drunk than he. The fact was that the appellant recorded a blood alcohol reading of .186. When the appellant got out of his vehicle he could barely stand up. He displayed a number of signs of intoxication. The magistrate properly described the appellant's offending as quite serious, particularly having regard to the fact that the appellant was aware that he was disqualified. As the magistrate put it, the issue before him was whether or not a sentence of imprisonment should be suspended. As to this his Honour observed that this was the second occasion on which the appellant had appeared before the court for a charge of driving whilst disqualified. The magistrate accepted that on that other occasion the court then took the view that the appellant's offending was not deliberately disobedient or contumacious. As to the matter then before him the magistrate said that in his view there was no valid reason for the appellant to be driving. Aware of his disqualification he took a risk. The consequence was that he was facing severe punishment. His Honour then said:
“I think you were deliberately disobedient or contumacious and you should serve a sentence. I do not think there are good reasons to suspend.”
Notwithstanding the submissions put before me I cannot agree that the magistrate erred in finding the appellant's behaviour on this occasion contumacious. I agree with the submissions put to me by counsel for the respondent that the facts of this case are very different from those which were considered by Mullighan J in Long v Police.[2]   Imprisonment is not the only sentencing option for a second offence but it must be conceded that the qualification to leniency is less likely to exist when a subsequent offender is being sentenced. If imprisonment is imposed suspension is not necessarily excluded. Nevertheless, here the magistrate properly rejected the submission put to him that the offending was not contumacious. He was entitled to find that the offending was contumacious on the facts put before him notwithstanding counsel’s submission.[3]
[2]      (unreported, 1998, SASC 6997)
[3]      R v Perre (1986) 41 SASR 105 at 106
I see no proper basis upon which this court can interfere with the magistrate's finding that the offending was contumacious, nor can I say that he erred in failing to find good reason to suspend. This was a second offence. It could not be described as trivial. There was no feature of emergency or unavoidability involved in what the appellant did.[4]
[4] Police v Bastow (unreported, Full Court, 8 May 1996) and Police v Cadd (1997) 69 SASR 150
at 180, 201 and 209+
The appeal is dismissed.

[1999] SASC 110

12 March 1999