GODFREY v Police - [2007] SASC 229

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GODFREY v POLICE
[2007] SASC 229
Judgment of The Honourable Justice David
28 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Appeal against sentence - driving offences - hindering police - contumacious offending - whether sentence manifestly excessive - whether magistrate should have suspended sentence - appeal dismissed.
Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) s 47b; Summary Offences Act 1953 (SA) s 6(2), referred to.

GODFREY v POLICE
[2007] SASC 229
Magistrates Appeal

DAVID J. The appellant appeals against a sentence imposed upon him by a magistrate in relation to four charges which were brought on two different Complaints.
The first Complaint related to conduct on 3 July 2006, in relation to which he pleaded guilty to driving a motor vehicle on a road whilst there was present in his blood more than the prescribed concentration of alcohol (count 2), driving whilst disqualified from holding or obtaining a licence (count 3) and hindering a member of the police in the execution of his duty (count 4). Count 1 on the Complaint was withdrawn.
The second Complaint concerned a charge of driving while disqualified from holding or obtaining a licence (count 1 on that Complaint but herein referred to as “count 5”). Count 5 was committed on 29 July 2006. The appellant also pleaded guilty to that offence.
In relation to the charge of driving with excess blood alcohol (count 2), the magistrate imposed a fine of $1,500 and disqualified the appellant from holding a driver’s licence for a period of three years. There is no appeal against that penalty.
In relation to the two counts of driving whilst disqualified (counts 3 and 5) and the count of hindering a member of the police (count 4), the magistrate arrived at a penalty of ten weeks imprisonment, unsuspended. The appellant now argues that that sentence was manifestly excessive and, in addition, that it should have been suspended.
Background Facts
At around 9.05 pm on Monday, 3 July 2006, police observed the appellant’s vehicle stationary on the side of Gulfview Road, Christies Beach. The appellant was next to the vehicle. The vehicle’s engine was still warm. Police had passed through the intersection ten minutes previously, and did not see the vehicle. A records check revealed that the appellant was disqualified from holding a licence from 1 April 2004 to 31 March 2007. This conduct gave rise to count 3, driving whilst disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act 1959 (SA).
The appellant submitted to a blood alcohol test which gave a reading of 0.153 grams per 100 milligrams of blood. This conduct gave rise to count 2, driving a motor vehicle on a road whilst there was present in his blood more than the prescribed concentration of alcohol, contrary to s 47b of the Road Traffic Act 1961 (SA).
Police interviewed the appellant, taking notes in a notebook. When police asked the appellant to sign these notes, he put them in his mouth, chewed them and spat them onto the floor. He then placed the notes in his pocket and refused to give them back. This conduct gave rise to count 4, the charge of hindering a member of the police in the execution of his duty, contrary to s 6(2) of the Summary Offences Act 1953 (SA).
At about 11.00 am on Saturday, 29 July 2006, while on bail for these offences, the appellant was apprehended driving along Railway Terrace, Edwardstown. The appellant was disqualified from holding or obtaining a driver’s licence, and this conduct gives rise to count 5, the offence of driving while disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act.
The appellant explained his conduct in relation to the offences on 3 July 2006 by stating that he had worked a split‑shift, had consumed a few alcoholic drinks after work and was driving to a friend’s house to sleep. In relation to the offence on 29 July 2006, the appellant stated that he drove to resolve an ongoing financial dispute with another party that related to a property they shared.
The magistrate found that the conduct which was the basis of both charges of driving whilst disqualified was contumacious. There was no argument on appeal about that finding.
In relation to counts three and four, namely the charges of driving whilst disqualified and hindering the police, the magistrate imposed a single penalty of four weeks imprisonment. In sentencing the magistrate explained that the starting point was five weeks, which was reduced to four weeks to give the appellant the appropriate discount for his plea of guilty.
In relation to count 5, the magistrate imposed a sentence of six weeks imprisonment. The starting point was two months imprisonment, which was reduced to six weeks to again make allowance for the appellant’s plea of guilty. The magistrate made the two sentences cumulative upon each other, thus arriving at a total sentence of ten weeks imprisonment. The magistrate refused to suspend that sentence.
Grounds of appeal
The appellant appeals against the sentence imposed by the magistrate on the basis that it is manifestly excessive. He also appeals against the decision of the magistrate not to suspend the sentence.
Manifestly Excessive
The appellant argues that the overall sentence is so manifestly excessive that it indicates error. The appellant concedes that the magistrate’s finding that the two acts of driving whilst disqualified were contumacious was correct. A number of cases were referred to in which various penalties for driving disqualified were much lower than the sentence appealed against.
There is no merit in the appellant’s argument. The magistrate’s sentencing remarks clearly set out the appellant’s history of serious driving offences, noting that he had convictions for driving with excessive blood alcohol in 2001 and 2002 and a conviction for attempting to drive under the influence in 2004. The magistrate also stated that the appellant had prior convictions which showed a “history of driving when … not authorised to drive”, noting three convictions in 2001 for driving without a licence, a conviction in 2003 for driving whilst disqualified, and a subsequent conviction for driving without a licence in 2004. The magistrate concluded that this “history shows therefore that since the year 2000 you have continued to drive a motor vehicle when you have no authority to do so”. She noted that the prior conviction for driving under disqualification meant that the driving disqualified charge currently before her was a subsequent offence under s 91(5) of the Motor Vehicles Act, with a maximum penalty of two years imprisonment.
The magistrate referred to a pre-sentence report. The magistrate pointed out the appellant’s difficult personal background, including being a Ward of the State from the age of 12 and his early and extensive drug and alcohol abuse. The magistrate observed that the appellant has a two-year-old daughter with whom he is attempting to regain contact through the Family Court. The magistrate noted that although the pre-sentence report indicated that the appellant was unwilling to undergo counselling in relation to his drinking problems, his counsel’s submissions suggested that this was a misunderstanding and that the appellant was willing to undergo counselling.
The magistrate noted that the pre-sentence report stated that the appellant responded well to parole supervision in 2002. However, the magistrate correctly stated that although the appellant had only committed traffic offences after release on parole, these offences were very serious. The magistrate noted that the appellant has a good work history and has attempted to improve his employment prospects through TAFE training. Overall, the magistrate’s treatment of the pre‑sentence report is fair, with clear regard to its contents.
The magistrate referred to submissions put by the appellant’s counsel in mitigation of penalty, including that the offending had occurred at a time of personal crisis, when the appellant was concerned that his ex-partner might remove his daughter from the State.
In all of the circumstances, it could not be said that the sentence imposed was manifestly excessive, bearing in mind the maximum penalty which applied, the fact that these were subsequent offences, and the fact that the second driving whilst disqualified was committed whilst the appellant was on bail for the first. Both of these offences were properly categorised as contumacious, and the second offence was committed in circumstances of severe aggravation. I would dismiss the first ground of appeal.
Suspension of Sentence
The appellant’s counsel also submitted that the magistrate erred in not suspending the sentence imposed. The appellant’s counsel had put to the magistrate that a term of imprisonment was inevitable, but that this term should be suspended for three reasons:
·imprisonment would entail a loss of employment;
·imprisonment might impede the appellant’s attempts to re-establish contact with his daughter; and
·the appellant was committed to appropriately dealing with his problems.
The magistrate, in deciding whether or not to suspend the sentence, referred to counsel’s arguments, but said:
I next turn to consider whether that sentence should be suspended for the reasons that have been put before me by counsel. As I have already indicated, your driving was contumacious. It was in direct disregard of a court order of disqualification. You have a history of driving when you are not authorised to do so. The offence of 29 July, as I have already indicated, is particularly serious because you had only just been released on bail for a similar offence. There is therefore a clear need for me to impose a penalty which emphasises to you that you must not drive unless you are permitted to do so.
In my view the need to impose such a penalty outweighs the circumstances that have been mentioned by counsel. The circumstances that have been mentioned by counsel in my view do not amount to a good reason to suspend the term of imprisonment that I have just imposed. The sentence will therefore not be suspended.
In my view, the magistrate carefully and properly considered the question of suspension and weighed up all appropriate factors, and bearing in mind the history of the appellant and the nature of these offences, has not erred in refusing to suspend.
I would therefore also dismiss the second ground of appeal.