Hale v Police No. Scgrg-99-277 Judgment No. S146

[1999] SASC 146

HALE V POLICE

[1999] SASC 146
Magistrate’s Appeal
1 MARTIN J. The appellant appeals against a sentence of 21 days’ imprisonment imposed in the Elizabeth Magistrates Court for the offence of driving whilst disqualified from holding or obtaining a driving licence, contrary to s91 of the Motor Vehicles Act 1959. The essential ground argued is that the sentence is manifestly excessive.
2 The appellant pleaded guilty to a number of offences, all of which occurred on 21 July 1998.  Those offences and the penalties with respect to each of them can be shortly described as follows:
Count 1. Larceny of petrol to the value of $24.91 (s131 of the Criminal Law Consolidation Act. Penalty - $300 plus $12.45 compensation. The second count was withdrawn.
Count 3. Drove a motor vehicle in a manner which was dangerous to the public (s46 of the Road Traffic Act). Penalty - fine of $600 and licence disqualification for a period of two years.
Count 4. Being the driver of a motor vehicle, on being requested by a member of the Police Force to stop the motor vehicle did not forthwith comply with such request (s42 of the Road Traffic Act). Penalty - $200 fine.
Count 5. Driving unregistered vehicle (s9 of the Motor Vehicles Act). Penalty -$200 fine.
Count 6. Driving uninsured motor vehicle. (s102 of the Motor Vehicles Act). Penalty - $200 fine and licence disqualification for a period of two months cumulative on the disqualification imposed in count 3.
Count 7. Drove while disqualified from holding or obtaining a licence (s91 of the Motor Vehicles Act). Penalty - imprisonment for 21 days together with licence disqualification for six months cumulative upon the period imposed with respect to count 6.
3 In addition to the period of 21 days’ imprisonment, therefore, if my calculations are correct, the appellant was fined a total of $1,500 and ordered to pay compensation of $12.45.  He was allowed three months to pay the amount of compensation and six months to pay the fines and cost.   His licence was disqualified for a total period of two years and eight months. 
4 The appellant's licence had been suspended on 25 February 1998 for a period of six months commencing that day.  He had pleaded guilty in the Youth Court sitting at Elizabeth to driving in a manner dangerous to the public and speeding while on provisional licence.  No convictions were recorded, but the licence disqualification was imposed in respect of the dangerous driving charge, together with a fine of $300.  No penalty was imposed on the speeding charge.  The offending on this occasion, therefore, occurred five months after the disqualification had been imposed when only one month of that disqualification period remained.
5 The relevant events began when the appellant drove his unregistered and uninsured vehicle into a petrol station at about 9.05 p.m.  on 21 July 1998.  According to his later interview with the police, the appellant and one of the other occupants of the car had earlier planned to steal petrol.  A total of just over 37 litres of fuel was put into a jerry can and the appellant drove the vehicle away at a fast rate of speed without paying. 
6 Approximately half an hour later, the police intercepted the appellant's vehicle and began to pursue it with their flashing lights and sirens in operation.  The appellant attempted to avoid apprehension and drove in a manner along various roads which was potentially dangerous to other road users.  He did not, however, drive at an exceptionally high speed.  Eventually, the appellant lost control of the vehicle on a dirt track and, at about 50 kilometres per hour, slid into the grass verge and then spun sideways across the track coming to rest along the fence line.  The appellant and the other occupants fled from the vehicle.  Police apprehended the other occupants who identified the appellant as the driver. 
7 The driving having occurred during the evening of 21 July 1998, the appellant voluntarily surrendered himself to police on 23 July 1998.  He co-operated and answered questions.  He said he had attempted to evade apprehension because he did not want to get caught for what he had done at the petrol station.  He admitted his driving was dangerous and did not advance any particular reason for driving whilst disqualified. 
8 The magistrate had before him a pre-sentence report and a forensic psychological assessment of the appellant.  The appellant was born on 8 May 1980.  Both he and his mother described his teenage years as 'hell' as a consequence of the violent behaviour of his stepfather, who was described as a 'drunken schizophrenic who was often violently abusive towards his step family and the appellant's mother.' I have also been informed through the affidavit of James Peter Noblet that the disrupted upbringing commenced with the appellant's natural father abducting his older brother.  That violent relationship ended, but was substituted by a further violent relationship with his stepfather.  His stepfather went to the extent of following the appellant and his mother and twin sister across Australia, at times seeing them take refuge in community based shelters. 
9 The appellant left school at the age of 16 years and, although he considered he was able to read and write well, his mother described his ability as adequate.  He has worked as a canteen assistant and for the last two years has been a casual but virtually permanent employee with a recycling centre.  He has a reasonably long-standing relationship with a young woman who continues to support him.  He has a good relationship with his mother who has also been financially and emotionally supportive. 
10 On testing, the appellant was found to be fully literate and to possess an IQ within the average range, although he was in the lower range in functioning related to forward planning, initiative generation and inhibition of inappropriate or antisocial behaviour.  The clinical psychologist commented that the appellant presented as a 'Very likeable shy young man who was of average intelligence'.  In his opinion, some of the findings meant that the appellant might not fully think through the consequences of his actions and be vulnerable to act on impulse.  This deficiency would be accentuated by the use of alcohol.  He was of the view that the appellant would benefit from counselling, which he had never previously had.  In his opinion, the appellant does not possess an antisocial personality disorder and he did not believe that the appellant was likely to be at risk of being a frequent broad range offender.  There is also a suggestion that the appellant suffers from an anger management deficiency and would benefit from counselling in that regard.  The assessment by the psychologist, particularly in the area of not thinking through the consequences of actions and being vulnerable to act on impulse, is an important feature in the sentencing process. 
11 As to the reasons for committing the various offences, the appellant told the psychologist that only two or three weeks of the disqualification period remained and having just bought a new car he wanted to try it out.  He said that the stealing of the petrol was committed on the spur of the moment, but that statement is contradicted by his statement to the police that he and one of the other occupants of the vehicle planned the theft earlier in the evening.  He told the psychologist he had been drinking a little and was mildly disinhibited, but not drunk. 
12 In Police v Cadd (1997) 69 SASR 150 the Full Court, comprised of five judges, considered the proper approach to be taken to imposing penalty for driving a motor vehicle while disqualified from holding or obtaining a driver's licence. The court considered whether the approach previously taken by the Full Court was correct. In essence, that approach was that the ordinary punishment for the offence must be imprisonment and circumstances would have to be exceptional to justify a penalty other than an unsuspended sentence of imprisonment.
13 It is unnecessary to canvass the judgments in any detail.  As to whether imprisonment was appropriate for a first offender, the approach of Mullighan J is common to a majority that punishment should be imprisonment ‘in the ordinary course 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’ (p179).  His Honour used the word contumacious as meaning something more than a mere intention to drive while disqualified, namely, ‘committing the offence with an attitude of total disregard for the disqualification in disobedience to the authority which imposed it.' 
14 The other two judges of the majority would have gone further.  It was the view of Mullighan J, however, that in other cases involving a first offender, where the offending is not contumacious, the starting point need not necessarily be imprisonment.  The remaining two judges were quite clear in their view that the previous approach requiring imprisonment as the ordinary punishment for a first offence was inappropriate.
15 As to the question of suspension, all judges were agreed that an inflexible approach is inappropriate and each case must be determined by considering both the objective circumstances of the offending and the personal circumstances of the offender. 
16 In the matter now under consideration, after referring to the seriousness of the offending both in the disobedience of a previous court order and driving in a manner dangerous to the public the magistrate observed:
"The offence calls for immediate imprisonment.  There is in your personal circumstances nothing to cause me to suspend that sentence or impose any other type of sentencing measure."
In his short remarks immediately before making that statement, his Honour expressed difficulty in understanding why the Youth Court had previously declined to record a conviction against the appellant for the prior offence of driving in a manner dangerous to the public.  He also observed that he regarded the offence of driving while disqualified as particularly serious.  His Honour did indicate that he gave credit for the plea of guilty. 
17 It is unnecessary for me to add to the interesting debate as to the meaning of "contumacious".  The appellant was well aware that he should not have been driving and drove over quite a lengthy period of time.  While he may not have had defiance of the court order in mind as a purpose of his driving, the period and the circumstances of that driving were such that a sentence of imprisonment was within the range of the sentencing discretion. 
18 In my opinion, however, his Honour appears to have taken an inflexible and narrow approach in determining whether suspension was appropriate. All the judges in Cadd disapproved of that type of approach. In my opinion, his Honour failed to give proper consideration to the factors that are relevant in determining whether there is good reason to suspend the operation of the sentence pursuant to the provisions of the Criminal Law (Sentencing) Act 1988.
19 The appellant is only 18 years of age.  His one previous court appearance was in connection with the offence for which he was disqualified and in breach of which order he committed the current offences.  The pre-sentence report and psychological assessment provide a useful insight into the background and character of the appellant.  That assessment is particularly relevant in considering the issue of suspension.  In addition, as to the prospects for rehabilitation, it is relevant that notwithstanding an unfortunate background and some limitations with respect to foresight and controlling his impulses, the appellant has managed to stay out of trouble until on his provisional licence.  Stealing the petrol was his first offence of dishonesty.  He has obtained and maintained constant employment since leaving school.  He has a sound relationship with a young woman and now lives with the young woman and her mother.  Some indication of the appellant's character was demonstrated when he voluntarily surrendered to the police and fully co-operated in answering their questions.  While he may have been aware that his companions had identified him as the driver, he is entitled to credit for having taken that step.  I accept that he is contrite and unlikely to offend again. 
20 In my opinion, his Honour has failed to give appropriate weight to all of those matters and to the concern for the rehabilitation of a young person who has good prospects of staying out of trouble and becoming a useful member of the community.  In my view, his Honour has allowed his concern for general deterrence and his view of the seriousness of the offence to be given disproportionate weight in comparison with the rather compelling personal circumstances of the background of this appellant. 
21 In addition, his Honour does not appear to have given appropriate consideration to the clear policy of the Sentencing Act as identified by Olsson J in Ienco v Kraft (1990) 53 SASR 40 at 44 and 45 that the offender should only be required to serve custodial sentences "either because of the inherent seriousness of the offending clearly demands such an approach or, alternatively, because the conduct of the offender and the relevant circumstances in general points to that course as a necessary sentencing strategy". His Honour then observed that the whole tenor of the statute is that primary emphasis should be given to rehabilitation where the evidence indicates this may be facilitated consistently with preserving a proper balancing of other community considerations. In my view, the remarks of his Honour are particularly pertinent when sentencing a young offender with the background and psychological limitations possessed by the appellant.
22 For these reasons, in my opinion, the sentencing discretion of the magistrate miscarried.  The appeal is allowed. 
23 On Count 1 and Counts 3 to 6 I impose the same penalties as were imposed by the magistrate and which are detailed at the commencement of these reasons. 
24 As to Count 7, I impose a sentence of 21 days imprisonment which will be suspended upon the appellant entering into a bond in the sum of $400 to be of good behaviour for a period of two years.  It will be a condition of the bond that the appellant be under the supervision of a probation officer for the period of the bond and that he undergo such medical or psychiatric treatment or counselling as may reasonably be directed by the probation officer. 
25 In addition, on Count 7, the appellant will be disqualified from holding or obtaining a driver's licence for a period of six months cumulative upon the period imposed in respect of Count 6.
26 In respect of Count 1, the appellant will also be directed to pay the following court fees and fines imposed by the Magistrate.  I allow two days to pay the $12.45 compensation and nine months to pay the fines and costs.