French v Police No. Scgrg-97-1542 Judgment No. S6532

[1998] SASC 6532

FRENCH v POLICE

Matheson J  (ex tempore)

The appellant pleaded guilty in the Magistrates Court at Elizabeth to a charge of driving a motor vehicle on a road, namely Whites Road, at Paralowie on 6 September 1997 in the State of South Australia while he was disqualified from holding or obtaining a licence, contrary to s.91 of the Motor Vehicles Act 1959. He was convicted and sentenced to imprisonment for 14 days. He was disqualified from holding or obtaining a driver's licence for a period of six months cumulative on the disqualification that had already been imposed.

The facts were that at about 10.11 pm.  on the day charged he was observed by the police, to whom he was known, driving a vehicle on the road referred to in the charge.  He was asked what his reason for driving was and he replied, "Well, I caught the bus into the show and I had my car round me brother's house and my wife was going to drive us home".  He said that the other person in the car was his six-year-old grand-daughter and that he was aware that it was an offence to drive whilst disqualified. 

He had several previous convictions.  On 11 September 1984 he appeared in the Holden Hill Magistrates Court on a charge of driving with more than the prescribed concentration of alcohol in his blood, and fined $350 and disqualified for three months.  On 10 January 1994 he was again convicted for the same offence and fined $500 and disqualified for six months.  On 13 May 1997 he was convicted in the Elizabeth Magistrates Court on a charge of driving whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control.   He was fined $1500 and disqualified for 42 months from that date. 

At the hearing in the Magistrates Court, the appellant was represented by Ms Shona Roy.  She tendered, on behalf of the appellant, a letter from his general practitioner, Dr Kenneth Soo dated 8 September 1997 which read:

"Dear Sir,

Ref: Mr French

Recently his mother and grandma died within a fortnight and his wife just had 2 strokes.  He helps daughter Jolan and looks after grand-daughter.  He is under considerable stress, grief and is noted to be crying often.

Please allow him to serve his penalty in community services in view of the above circumstances.

Thank you.

Yours in Christ
(Sgd. Soo)"

Ms Roy also tendered a letter from his daughter dated 11 November 1997 which read:

"Dear Sir/Madam

I am writing this letter in regards to my father Robert French.

I am a Sole Parent to a child with a disability, and am employed as a part time casual holding two jobs with Serco.

My father has been a tremendous help to my daughter and myself, in fact I could not have coped without his support.

Due to my irregular hours my father looks after my daughter before and after school, and has her on Saturdays also being available for her extra tuition through SPELD.  It is thanks to his help I have been able to plan ahead for our future.

I would like to ask of you to take this into consideration when handing down your sentence.

(Signed)J French
Jolan French"

Finally, she tendered a letter from the SA Police Department dated 14 November 1992 which read:
"Mr Bob French,
 31, Kelsey Road,
SALISBURY NORTH

Dear Bob,

The police officers that you assisted on Saturday 3rd of October, 1992, at the Waterloo Corner Hotel were extremely grateful for your help on the night.  The incident was a volatile one with the potential for people to be badly injured.

Without hesitation you put yourself at personal risk and assisted the police officers by detaining one of the offenders until other police patrols arrived at the hotel.

Whilst one police officer suffered cuts and abrasions to his face, no serious injuries resulted from this violent confrontation as a direct result of your immediate support and intervention.

On behalf of all police officers at Para Hills Subdivision I would like to express our gratitude for the invaluable assistance you gave us.

Yours sincerely,

(Sgd. A.F. Thomson)

A.F. THOMSON,
Inspector,
PARA HILLS SUBDIVISION"

In an affidavit which was admitted by consent, Ms Roy deposed to the lengthy submissions she made to the Magistrate. Those submissions include the  following.  Mr French substantially admits the allegations as put by the prosecutor.  He is aged 55 years, a grandfather and on a disability support pension.  On 6 September 1997 he was heading off to the Wayville show grounds with his 6 year old grand daughter.   He had arranged for his estranged wife to pick him up from his daughter’s place where he had been residing since he and his wife had separated approximately 7 years ago.  He resides with his daughter and grand daughter at his daughter’s residence.  Initially the arrangement was that his wife was going to drive all of them down to the show grounds and give them a lift back home.  However, his wife changed her mind.  She drove them to her place.  She decided not to accompany them to the show grounds.  Arrangements were made for her to give them a ride back to their home upon their return from the show grounds.

The appellant and his grand daughter were in the show grounds for approximately 3 to 4 hours.  He did not consume alcohol.  During the course of being at the grounds Mr French had with him approximately $80.00.  He spent that sum of money in buying gifts for his grand-daughter and grandson.  By the time it was decided to leave he had approximately 30 cents left on him.  He had purchased a day trip ticket and he returned with his grand-daughter to his wife’s house by bus.  They arrived at his wife’s place at approximately 9.30pm.  They found the house locked and his wife absent.  He did not have a key to enter.  That evening it was raining "cats and dogs" and they stood outside.  There was no verandah or shelter that Mr French and his grand daughter could take cover from the rain.  His grand-daughter began crying.  Mr French resided approximately 4 miles from his wife’s house.  He attempted to walk, however, because of the downpour he was not able to go far.  Due to the age of the child who was showing distress and tiredness from a long day, he decided as a last resort of obtaining the spare key to the car which was tied underneath the tow bar.  He drove home to where they lived.  Mr French was apprehended by the police approximately a quarter of a mile from home. His wife only returned home about midnight that day.  He is 55 years old and has been on a disability support pension for 4 years.  He had lived with his daughter and grand-daughter for the last seven years.  He is very close to his grand-daughter and in fact provides the principal care giving role to her whilst his daughter works part time at the RAAF base.  His daughter relies upon him to provide support in caring for his grand-daughter and financially by way of paying board.  His daughter finds it hard to pay the rent for the Housing Trust home without his contribution.  The repercussions of Mr French going into prison is that his daughter and grand-daughter would lack the financial and supportive care that he provides.  He and his wife have three children aged 31, 28 and 22. 

He was born in Tailem Bend, South Australia and grew up in the country and went to school until Grade 6.  He had been a jockey for 4 years and then worked for his father.  Then he has driven semi-trailers since he was 16 and for approximately 39 years of driving he has never had an accident.  He stopped truck driving in about 1990.  His traffic convictions related only to driving a car.

His Honour asked Ms Roy if the letter from the SA Police Department had been presented to Court in an earlier Court appearance, and whether Mr French had already been given credit for the letter/contents. She informed His Honour that the letter had been presented to Court on the earlier traffic matters.  His Honour said that as credit had already been given to the earlier matters he would not give credit to the letter again.

In his remarks on penalty, the learned magistrate said:

"  I take all those matters put by Miss Roy on your behalf into account in imposing penalty on you.  Credit was given to you for the matter mentioned in the letter from the Police Department tendered today when I imposed sentence on you for driving under the influence.  You have re-offended less than four months after a three and a half year disqualification was imposed.  I regard immediate imprisonment as the only appropriate penalty.  I do restrict that sentence to the lowest level I feel I am able in the light of submissions made by Miss Roy."

The appellant appeals to this court on the ground that the penalty imposed was manifestly excessive. In the course of her submission, counsel for the appellant confined her submissions to an argument that the learned Magistrate should have suspended the term of imprisonment.  

I have some sympathy for the appellant, and I have had regard to the judgments of the Full Court in Police v Cadd & Others (1997) 69 SASR 150 but in the end, however, I am not persuaded that his Honour erred in not exercising his discretion to suspend the sentence of imprisonment. I think the appellant's offending can properly be categorised as contumacious, and I agree with Ms Guy, counsel for the respondent, that there were a number of other courses open to the appellant, such as waiting in the car to which he had the key for his ex-wife to return in the car, seeking shelter from a neighbour, or going home by taxi.

I also accept counsel's submission that apart from the circumstances of the offending, the appellant's personal circumstances justified sympathetic consideration.   However, I am not persuaded that the learned magistrate overlooked any of them, especially having regard to the fact that he only fixed a term of 14 days. 

In all the circumstances, and notwithstanding the thorough submissions of counsel for the appellant, I am not persuaded that the learned Magistrate was in error.  The appeal will therefore be dismissed. 

There will be no order as to costs.