GREEN v Police - [2005] SASC 454

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GREEN v POLICE
Judgment of The Honourable Justice Perry
5 December 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against sentence - appellant pleaded guilty to driving while disqualified - sentenced to imprisonment for 6 weeks, suspended upon his entry into a 1 year good behaviour bond - whether offending contumacious - whether consumption of alcohol relevant to formation of intent to delilberately drive in total disregard of the disqualification - held that driving contumacious and that in any event, there were no grounds made out to justify interference with the penalty.
Motor Vehicles Act 1959 s 91, referred to.
Police v Cadd and Ors (1997) 69 SASR 150; Bates v Police (1977) 70 SASR 66; Johns v Police (Unreported) 24 June 1998, judgment No S6729; R v Sheehan (1999) 106 A Crim R 38; White v Police (2000) 76 SASR 430, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
The appellant's sentence of 6 weeks imprisonment imposed in the Magistrates Court following his conviction on a charge of driving whilst disqualified was suspended upon his entry into a good behaviour bond which included a condition that the appellant "undertake such psychiatric or psychological treatment as directed" - held that such a condition could not be imposed in the absence of evidence which satisfied the court that such treatment had been recommended for the appellant by a legally qualified medical practitioner and was available to him - such evidence was not before the sentencing court - appeal allowed and bond varied by omitting the condition.
Criminal Law (Sentencing) Act 1988 s 41 and s 42, referred to.

GREEN v POLICE
[2005] SASC 454
Magistrates Appeal: Criminal

PERRY J. This is an appeal against the penalty imposed upon the appellant following his plea of guilty in the Magistrates Court sitting at Adelaide to two traffic charges.
Both charges relate to a passage of driving in the early morning of Sunday 11 April 2004.
The first count alleged that on that date at Wallaroo, the appellant drove a vehicle on Charles Terrace while there was present in his blood the prescribed concentration of alcohol as defined in s 47a of the Road Traffic Act 1961. The concentration alleged was .129 grams in 100 millilitres of blood.
The second count alleged that on the same occasion he drove while disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act 1959.
On the excess blood alcohol count the sentencing magistrate imposed a fine of $1,100, together with court fees and costs which brought up a total of $1,281.20.
As well, the magistrate disqualified the appellant from holding or obtaining a driver’s licence for three years, commencing from the date upon which he was sentenced.
On the charge of driving whilst disqualified, the magistrate imposed a sentence of six weeks imprisonment, suspended upon the entry by the appellant into a one-year good behaviour bond in the amount of $200, with conditions as to supervision by a probation officer and other conditions relating to participation in programs for drug and alcohol abuse, and as to psychiatric or psychological treatment.
The appeal is limited to the penalty imposed on the second count, that is, the charge of driving whilst disqualified.
In his notice of appeal, the appellant complains that the sentence was manifestly excessive, and that the magistrate erred:
·in finding that the offending was “contumacious”;
·in failing to consider s 11 of the Criminal Law (Sentencing) Act 1988;
·in failing to consider penalties other than imprisonment; and
·in failing to give sufficient weight to the circumstances of the offending and the personal circumstances of the appellant.
In an additional ground added by amendment on the hearing of the appeal, the appellant complains that the magistrate erred in imposing conditions in the bond contrary to the provisions of s 42(4) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
The police prosecutor, Mr Denton, has sworn an affidavit summarising the facts as put to the magistrate. He made submissions to the following effect:
… at about 6.30 am on 11 April 2004 the defendant was observed by police travelling east on Charles Terrace, Wallaroo.
The defendant was stopped by a mobile random breath testing unit and submitted to an alcohol test, which recorded a positive reading. The defendant had a 12 year old child with him at the time.
When spoken to by police the defendant stated that he did not believe that police could require a breath analysis at that time of the morning. He further stated that the police were “Gestapo cunts” and that they had set him up.
Checks by police revealed the defendant was disqualified from driving a motor vehicle for a period of 3 years, commencing 9 December 2002. When informed he was disqualified from driving, the defendant stated “I don’t give a fuck, what is my son supposed to do”.
Police returned the defendant’s son to his grandmother’s house and then conveyed the defendant to the Kadina police station for a further breath analysis. The result of the subsequent breath analysis was 0.129 grams of alcohol in a hundred millilitres of blood.
The prosecutor then informed the court of the appellant’s record of prior offences. I will deal with those in due course.
Mr Timothy Blake of counsel represented the appellant both at first instance and on the hearing of the appeal in this Court.
He filed an affidavit in which he set out the gist of his submissions to the sentencing magistrate.
He put to the magistrate that the appellant had travelled from Adelaide to Wallaroo on the Friday before the Sunday morning when the offence occurred, in order to visit his sick mother. He used a friend’s car which he had borrowed. Given his licence suspension, he arranged for his de facto partner, Ms Philippa Hastings, to drive himself and his 14 year old son on the trip. Their intention was to stay the weekend and return to Adelaide on Sunday.
However, on the Saturday evening the appellant and Ms Hastings had an argument, as a result of which she decided to return to Adelaide by bus on the Saturday night. The appellant did not know that she had done so. He remained at a local hotel, drinking.
He continued to drink after returning to his mother’s house, only to wake up early on the Sunday morning, realising that Ms Hastings had left.
He then became concerned as to how he was to get back to Adelaide with his son in order for his son to attend school, and also so that he could return the car which he had borrowed, as the owner of the car needed it for his own work.
As a consequence, early on the Sunday morning the appellant decided to drive back to Adelaide himself. He had driven only a few hundred metres before he was stopped by the police.
Obviously he was still affected by alcohol, given the outcome of the blood test which revealed the concentration to which I have referred.
Both before the magistrate and on the hearing of the appeal, Mr Blake contended that his client’s driving was not “contumacious”.
The police prosecutor contended, on the contrary, that the driving was contumacious, and that the appellant was fully aware that his licence was disqualified. He invited the magistrate to impose a sentence of imprisonment.
Unfortunately, the magistrate’s remarks on penalty are not available to this Court. The note from the Registrar of the Magistrates Court enclosing the papers remitted to the Supreme Court following the lodging of the notice of appeal, state “No remarks as to penalty (notes lost off file)”.
In his affidavit, Mr Blake states what he can recollect of the magistrate’s sentencing remarks, of which he made brief notes at the time. They indicate that the magistrate observed:
·That in relation to the PCA matter it was the fourth occasion the appellant had been before the court since 1991. As such the minimum penalty was not appropriate.
·That the driving initially appeared not contumacious but the appellant’s response to police suggested that it was contumacious.
·That a period of imprisonment was warranted, suspended and to be under supervision of the Department of Correctional Services.
When, in a case such as this, the magistrate’s reasons are not available to the appeal court, there is little alternative but for the appeal court to proceed to re-sentence the appellant.
The appellant is 46 years of age. He has a long record of convictions dating back to 1977 when he appeared in the Kadina Children’s Court on a charge of common assault. Subsequent convictions were for what might be described as street offences, larceny, further charges of assault, resisting police, and a number of traffic offences.
The traffic offences include a conviction for driving under the influence recorded in October 1987; driving with excess blood alcohol recorded in February 1991; and driving with excess blood alcohol recorded in May 1999. That offence resulted in a driver’s licence disqualification for 12 months.
On 9 December 2002 in the Magistrates Court sitting at Kapunda, the appellant was again convicted of driving with excess blood alcohol, the offence date being 4 August 2002. The penalty then imposed included a three-year licence disqualification commencing on 9 December 2002. It was that disqualification which was in place at the time of the offending now in question.
Was the offence contumacious?
The sentencing standards for this offence are set in Police v Cadd and Ors.[1] In that case, the Full Court of five judges agreed that it was appropriate to fix a standard by way of offering guidance to magistrates on the approach to be taken when sentencing persons convicted of driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence.
[1] (1997) 69 SASR 150.
As it was put by Mullighan J in that case:[2]
That standard … should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case. I use the word “contumacious” in the sense that it is understood in the law … It means something more than mere intention to drive while disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification and disobedience of the authority which imposed it. In other cases involving a first offender where the offending was otherwise, the starting point need not necessarily be imprisonment. …
If the circumstances dictate that the sentence must be imprisonment the length of the term must also be determined by the circumstances of both the offence and the offender. Also it will then be necessary to consider suspending a sentence. … When exercising the discretion to suspend a sentence of imprisonment the judges and magistrates must have regard to all the relevant matters and principles.
[2] Ibid 179.
In Bates v Police,[3] I said:
I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order for suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.[4]
[3] (1977) 70 SASR 66.
[4] Ibid at 73.
The observations which I made in Bates were approved by Lander J in Johns v Police.[5]
[5] (Unreported) 24 June 1998, judgment No S6729.
It follows from the guidance laid down in Cadd that the question whether a particular offending can properly be characterised as “contumacious” is an important consideration to be taken into account.
It is not, however, some sort of litmus test. As I pointed out in Sheehan,[6] it would be wrong to approach cases of this class on the footing that if the circumstances of an offence can properly be characterised as contumacious, “imprisonment is more or less inevitable, but if not, imprisonment is then effectively disregarded as an appropriate sentencing option”.
[6] (1999) 106 A Crim R 38 at 41.
Even if an offence is properly to be regarded as “contumacious” it may nonetheless be appropriate to adopt a sentencing option short of an unsuspended term of imprisonment.
Furthermore, in cases not involving contumacious offending, it may nonetheless be appropriate to impose a custodial term of imprisonment.
To regard the answer to the question whether the driving is contumacious as determinative of the question whether to sentence to imprisonment is to take too narrow a view of the sentencing process. All relevant factors must be taken into account.
To approach the matter in any other way would be to unduly confine the sentencing discretion conferred by the statute, and elevate the guidance given in Cadd to a rigid rule.
In the case of traffic offences, the offender’s record is highly relevant. An offender who has demonstrated a persistent disregard of the rules of the road, may forfeit any claim to leniency if caught driving whilst disqualified.
In any event, in this case, assessing the matter for myself, the offending should properly be described as “contumacious”. The appellant well knew that he was disqualified, but nonetheless deliberately chose to drive. Although he had not driven very far when apprehended by the police, his intention was to drive from Wallaroo to Adelaide.
His attitude to the fact that he was deliberately driving whilst suspended seems clearly enough to have been illustrated by his response to the police officer who informed him that he was disqualified from driving, when he said, “I don’t give a fuck …”.
It was submitted on behalf of the appellant that driving whilst disqualified from holding or obtaining a driver’s licence in circumstances where the offender was under the influence of alcohol, such that he does not turn his mind to the disqualification, may not amount to contumacy.[7] Mr Blake contrasted a state of mind which is foolish and unthinking, but not intentional or deliberately disobedient.
[7] See White v Police (2000) 76 SASR 430 per Mullighan J at 433.
I accept that an offender’s state of mind is necessarily subjective. I accept also that somebody might be so intoxicated as to lack awareness of the fact that they were disqualified from driving or holding or obtaining a driver’s licence.
In my view, the evidence in this case falls short of supporting a view that the appellant was in such a state. Certainly his reaction when questioned by the police did not suggest that he was unaware of his licence disqualification.
Furthermore, as I have been at pains to point out, there may be some cases where even driving which is not properly characterised as contumacious, may nonetheless deserve a prison term.
While it is unnecessary to decide the point in this case, where a driver deliberately consumes alcohol to the stage at which his or her mind is so befuddled as to lack a clear appreciation of the fact of his or her licence disqualification, so that he or she lacks the element of defiance necessary to characterise the driving as contumacious, it may well be that imprisonment may nonetheless be appropriate. I say that, because excessive consumption of alcohol could hardly be regarded as a mitigating feature in any driving offence.
I do not think that it would be right to countenance that a defendant under a licence suspension could drink himself or herself into a state of insensibility, and then claim that he should not be sentenced to imprisonment because of his or her state of mind.
Furthermore, in this case, the appellant’s antecedents, which include a number of serious driving offences, do not suggest that he deserves to be treated leniently when he commits yet another driving offence while affected by liquor.
His account of the circumstances does not support the view that they were attended by features of urgency which would operate to ameliorate the seriousness of the offending.
I accept that imprisonment is a sentence of last resort, and I accept also that the various matters set out in s 11 of the Criminal Law (Sentencing) Act 1988 must be given appropriate weight.
In reassessing the question of penalty for myself, in my view, the penalty imposed by the sentencing magistrate was, if anything, lenient.
In those circumstances, I would dismiss the appeal insofar as it relates to the imposition of a suspended term of imprisonment.
The conditions in the bond
The conditions of the bond are as follows:
That you are –
1.To be of good behaviour and comply with all of the conditions of this bond.
2.To be under the supervision of a probation officer / community corrections officer for a period of 1 YEAR and obey all the lawful directions given by the probation officer / community corrections officer.
3.Undertake programs and projects as directed, especially as they relate to drug and alcohol abuse and anger management.
4.Undertake such psychiatric or psychological treatment as directed.
5.Report to the Department of Correctional Services on or before 5 pm on 12/9/05.
In suspending the sentence upon the entry by the appellant into a bond, the magistrate was exercising the power conferred by s 38(1) of the Sentencing Act, which provides:
38(1) Where a court has imposed a sentence of imprisonment upon a defendant, a court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond –
(a)to be of good behaviour; and
(b)to comply with the other conditions (if any) of the bond.
(2)…..
Section 42 of the Sentencing Act provides in part as follows:
42(1) Subject to this Act, a bond under this Act may include such of the following conditions as the court thinks appropriate and directs be included:
(a)a condition requiring the defendant to be under the supervision of a community corrections officer for a specified period; or
…
(e)a condition requiring the defendant to undergo medical or psychiatric treatment in accordance with the terms of the bond;
…
(h)any other condition that the court thinks appropriate.
(2)…
(3)[Repealed]
(4)A court must not include a condition requiring the defendant to undergo specified medical or psychiatric treatment unless it is satisfied that treatment of the nature specified in the bond has been recommended for the defendant by a legally qualified medical practitioner and is available to the defendant.
(5)…
I am prepared to assume that psychological treatment amounts to “medical” treatment within the meaning of subsection (4).
There was no evidence before the magistrate upon which the magistrate could have been satisfied that psychiatric or psychological treatment had been recommended by a legally qualified medical practitioner, and was available to the appellant within the meaning of s 42(4).
I have considered whether or not the word “specified” in subsection (4) means something more particular than medical or psychiatric treatment described in general terms. I do not think that it necessarily does. In my view, to condition a bond by requiring the defendant to undertake “such psychiatric or psychological treatment as directed”, is to impose a condition which, within the meaning of s 42(4), requires the defendant to undergo “specified medical or psychiatric treatment”.

On the other hand, condition 3 of the bond simply obliged the appellant to undertake “programs and projects as directed” relating to drug and alcohol abuse and anger management. I do not think that that is a condition requiring the appellant to undergo “specified medical or psychiatric treatment”.
Conclusion
I would allow the appeal for the limited purpose of varying the conditions of the bond to exclude condition 4.
The appeal should otherwise be dismissed.