GORDON v POLICE No. SCGRG-99-814 Judgment No. S349

[1999] SASC 349

GORDON v POLICE
[1999] SASC 349

Magistrates Appeal (Ex tempore)

1. DOYLE CJ.       This is an appeal against sentence.

2. The appellant pleaded guilty in the Magistrates Court to two offences.  The first count is a charge of driving a motor vehicle on the road at a speed which was dangerous to the public.  The second count was a charge that the appellant, on the same occasion, drove a motor vehicle while he was disqualified from holding or obtaining a licence.   When the appellant pleaded guilty to these two counts, a further count of driving at a speed greater than the relevant speed limit was withdrawn.

3. On the first of these counts the magistrate recorded a conviction, imposed a fine of $450, and disqualified the appellant from holding or obtaining a driver’s licence for a period of five months.  There were also court costs to be paid.

4. On the other count, the magistrate again recorded a conviction, and sentenced the appellant to imprisonment for six weeks, to commence forthwith.

5. The appellant was released on bail seven days later, this appeal having been instituted.

6. The appellant now appeals against the sentence, on the grounds that the magistrate ought to have suspended the sentence of imprisonment.  It is also complained that the sentence of imprisonment was manifestly excessive.  There is no complaint about the sentence imposed on the first count referred to.  In any event, that sentence appears to me to be quite appropriate.

7. The offence in question was committed on Christmas Eve, 24 December 1998.  The complaint was not issued until 13 May 1999.   I do not know why it took so long to issue the complaint.

8. The appellant first appeared before the Court on 17 June 1999.   He was unrepresented.  He wanted to get the matter over and done with, and told the magistrate that.

9. The magistrate’s sentencing remarks indicate that he informed the defendant of his right to obtain legal advice, and to have an adjournment for that purpose.  They also indicate that he informed the appellant of the potential penalties and of the fact that he faced the possibility of imprisonment.  The affidavit filed by the appellant in support of his appeal acknowledges that he was told that he could seek legal advice.  The affidavit also acknowledges that the magistrate “said something about the minimum penalty and imprisonment.”  I am satisfied, subject to one matter, that  the magistrate followed the procedure that is appropriate when sentencing a person who is unrepresented: see Ivanoff v Linnane (1979) 20 SASR 279 at 282-283.

10. The circumstances of the offence were as follows.

11. On Christmas Eve, at about 10.30 pm, the appellant’s vehicle was observed by police officers engaged in what appeared to be a drag race along Lake Terrace East at Mt Gambier.  Lake Terrace East is described as a typical suburban street.  Obviously enough, this was a highly dangerous activity, and the penalty imposed on count one reflects that fact.  The prosecutor’s affidavit indicates that when stopped by police, the appellant stated that he knew that he had been disqualified from holding a driver’s licence, but did not know for how long.

12. The prosecutor informed the magistrate that on 18 March 1998 the appellant had appeared in the Magistrates Court at Mt Gambier on a charge of driving or using a motor vehicle without consent.  He was fined and his licence was disqualified for a period of 12 months.  The appellant was therefore nine months into the period of licence suspension.

13. The magistrate’s sentencing remarks state that it is the obligation of an offender to understand the terms of a court order.   The magistrate states that it was the appellant’s obligation to know and understand the order made in relation to him, and that it was his fault that he was driving while under suspension.  The magistrate found that there was no misunderstanding on the part of the appellant which in any sense mitigated the seriousness of his offence.  The magistrate went on to conclude that this was a case in which the appellant had simply driven in defiance of the court order, and that the appellant well knew that he was disqualified from holding a driver’s licence.  He said this was a case of contumacious offending, and that the driving was more than momentary and not for just a short distance.  There were no circumstances of emergency or anything like that that would have justified the driving.

14. Subject to one matter, I agree with those observations.  I consider that in the circumstances as found by the magistrate, this was a case in which imprisonment was appropriate, in light of what was decided by the Supreme Court in Police v Cadd and Others (1997) 69 SASR 150. On the magistrate’s findings the appellant simply chose to drive for his own pleasure, either knowing that his licence was still suspended or without in any way being concerned about whether it was still suspended. In short, the defendant either knew that his licence was suspended or was quite reckless and careless as to whether or not it was suspended.

15. But in the affidavit filed in support of the appeal the appellant states that he was only 17 years of age when the licence disqualification was imposed.  He says that he did not know whether he had been disqualified for any fixed period of time.   He says that if he was told the length of the disqualification, that length was not made clear to him.  He claims, in effect, that he should have been sentenced on the basis that he was genuinely unaware of the fact that the licence suspension was still operative.  This claim gets some support from what the appellant said to the police officers who stopped him on the night in question.

16. I must say that I have considerable doubts about this claim.  As far as I am aware it is routine practice for an offender whose licence is suspended to be informed in clear terms of the period of suspension, and of the likely consequences of a breach of the order.  I understand that the offender is given written information to that effect, but I may be wrong in this.  I do not take this matter into account on the appeal.

17. However, I am prepared to accept that when the appellant appeared before the magistrate, he may well have not understood the significance of the factual finding to be made by the magistrate on this issue.  Bearing in mind that he is relatively young, and that he was unrepresented, I am prepared to accept that the appellant may not have understood the importance of him satisfying the magistrate of the substance of his claim, or at least that his claim should not be rejected.

18. When an offender appears unrepresented before a magistrate, and is facing the possibility of imprisonment and that possibility is likely to turn upon a particular factual finding to be made by the magistrate, it is desirable that  the magistrate inform the offender of that, and inform the offender that he or she should consider giving evidence on the matter, and that in the absence of any evidence the magistrate might proceed on the basis of facts other than those claimed by the offender.

19. As I have already said, I am prepared to accept in this case that the appellant may not have understood the importance of supporting with evidence, or other supporting material, his claim that he was unaware of the duration of his licence suspension.  On my reading of the magistrate’s sentencing remarks, and taking into account the affidavits filed by the prosecutor and the appellant, I am satisfied that there is a real risk that the appellant was not informed by the magistrate that this was an important issue, and that the magistrate’s decision to impose a sentence of imprisonment might turn upon the magistrate’s findings on this matter.  I am also satisfied that there is a real risk that the appellant was not informed that were he to give no evidence on the matter, the magistrate might proceed to sentence on the basis that the defendant was aware that when he committed the offence in question he was driving while disqualified from holding a licence.  I should add that it is not a complete answer to all this to say that the appellant should have found out the duration of his licence suspension.  He should have.  But it does not follow that his claim is necessarily to be rejected, whatever doubts I might have about that claim.

20. I am conscious of the difficulty experienced by magistrates in dealing with lengthy lists of cases, and of the need for magistrates to dispose of pleas of guilty expeditiously.  However, imposing a sentence of imprisonment, particularly in the case of a person facing such a sentence for the first time, is  a significant matter.  When the offender is unrepresented, fairness and the interests of justice require that generally the defendant be informed if there is a particular factual issue upon which the question of imprisonment might turn, and be informed of the desirability of the defendant addressing that matter by oral evidence.

21. For those reasons, I allow the appeal, set aside the sentence imposed by the magistrate on the charge of driving while disqualified from holding a driver’s licence, and remit the matter for rehearing by the Magistrates Court.  I do so for the purpose of enabling the sentencing of the appellant to be reconsidered, in the light of such evidence as the appellant might seek to put before the Magistrates Court.  The appellant’s belief about his licence suspension is central to the penalty to be imposed.  This issue needs to be decided, and I cannot do so on the affidavits before me.  As I have already indicated, in acting as I do I do not express any disapproval of the conclusion by the magistrate that a sentence of imprisonment was required, under the circumstances as found by the magistrate.  I express no particular view on the actual sentence imposed, other than to comment that for such a young man with employment and only one prior offence, it seems rather heavy.  I note also that the magistrate does not appear to have considered the question of suspension, and that called for separate consideration.

22. It is desirable that the matter of penalty be resolved promptly, as the appellant has hanging over him the prospect of imprisonment.  If at all possible, this matter should be bought before the Chief Magistrate while he is in Mt Gambier this week.