HARSHAZI v POLICE No. SCGRG-98-275 Judgment No. S6663

[1998] SASC 6663

HARSHAZI  v POLICE

Magistrates Appeal
Mullighan J (ex tempore)

This is an appeal against the sentence of imprisonment for two weeks imposed by a learned Magistrate upon the appellant having pleaded guilty to a charge of driving a motor vehicle on the South Eastern Freeway at Murray Bridge on the 13 August 1997 whilst disqualified from holding or obtaining a licence to drive a motor vehicle contrary to s91 of the Motor Vehicles Act 1959.

The appellant is aged twenty five years.  He was born in the former Czechoslovakia and has poor command of English.  He has only lived in Australia for about five years.  He was married and has one child, but the marriage has been dissolved and he has financial responsibilities towards his child who lives with his mother.

On the 30 January 1997 the appellant was convicted of driving a motor vehicle with more than the prescribed concentration of alcohol in his blood contrary to s47B of the Road Traffic Act 1961. On that occasion an order of disqualification was made for a period of twelve months.

Police observed the appellant driving the motor vehicle on the 13 August 1997 at about 3.38 am when it passed a radar apparatus at 162kph. The speed limit in that location was 110kph. The Police stopped the vehicle and had a conversation with the appellant who admitted his offending. A check made by them revealed the order of licence disqualification. The appellant was arrested and conveyed to the Murray Bridge Police Station where he was charged with driving whilst disqualified and also with driving on a road within a speed zone at a speed greater than that fixed by the zone contrary to s50 of the Road Traffic Act.  

The appellant appeared before the learned Magistrate at Holden Hill on the 11 February 1998.  He was represented by counsel and pleaded guilty to both charges.  The court was informed that the appellant had no record or prior offending apart from the offence which led to the licence disqualification.  He did not understand the seriousness of the charge of  driving whilst disqualified when he drove the vehicle.  He had been a passenger in the vehicle and his friend the driver had stopped at a service station for some food.  The appellant then drove whilst his friend consumed that food.  He is a motor mechanic in employment which he would lose if imprisoned.  Although he had only been working at that job for about two months it was to be regarded as permanent employment.  The prosecution made no submissions as to penalty.  The sentencing remarks of the learned Magistrate were brief.  He said:

“When an order is made that you not drive that order has to be obeyed.  You yourself described your decision to drive on this night as being foolish.  It was foolish.  There was no specific purpose, it seems no particular need for you to drive.  It was not, for example, an emergency.  We all agree that you have been very foolish in disobeying that order of disqualification.  There is no doubt that gaol is the appropriate penalty.  I note your personal circumstances.  I note that if you are sent to gaol you are very likely to lose your job at the Walkerville business, but that is something that you should have thought about before you made the decision to drive.

...

As I said to Mr Twiggs as he started to speak, on the freeway, all sorts of problems might occur, but one real issue, of course, is the prospect of kangaroo coming on to the freeway.  In that circumstance, it is irresponsible to be travelling at such a fast rate of speed.  You should keep that in mind.”

The appellant was convicted on the first charge and a sentence of imprisonment was imposed which the learned Magistrate declined to suspend.  He ordered that the appellant pay court fees of $94, levy of $28 on each charge and a prosecution administration fee of $16.  He allowed the appellant three months to pay these amounts.  There is no record of the learned Magistrate having dealt with the second charge of exceeding the speed limit otherwise than making the remarks which have been mentioned.  No conviction is recorded and he did not say anything about penalty.

Clearly the learned Magistrate categorised the appellant’s conduct while disqualified as foolish, which is an appropriate description in the circumstances.  It follows, in my view, that he erred in concluding that a sentence of imprisonment was the appropriate penalty in all of the circumstances.  The appropriate sentencing standard for the offence of driving a motor vehicle whilst disqualified was considered by the Full Court in Police v Cadd & Ors (1997) 69 SASR 150. That standard is to be discerned from the addendum to the judgment of Doyle CJ at p171:

“[T]he ... majority supports the view that it is appropriate for this court to give authoritative guidance to magistrates on the approach to be taken to sentencing persons, convicted of driving a motor vehicle while disqualified from holding or obtaining a driving licence.

...
... each member of the majority accepts, as Mullighan J says, that the punishment 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 ...’.”.

In Cadd I expressed the view that the less severe form of punishment may be a substantial fine or community service in the appropriate case, and went on to say, at p179:

“I use the word ‘contumacious’ in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at 542-543. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in ss10 and 11 of the Criminal Law (Sentencing) Act and established sentencing principles are   sufficient further guide to the sentencer.”

The learned Magistrate did not, in my view, apply this sentencing standard.  He did not conclude that the offending was contumacious or have sufficient regard to the personal circumstances of the appellant, and in particular his employment and family circumstances.  Also I think his age and general good character should have been brought to account.  Upon consideration of the circumstances of the offending, a foolish and not contumacious act, and the personal circumstances of the appellant, application of the sentencing standard in Cadd would not lead to a sentence of imprisonment.  It was appropriate to have regard to the rehabilitation of the offender as well as appropriate punishment and deterrence.

In my view, the sentencing discretion miscarried. The appeal should be allowed and the sentencing discretion exercised afresh. Giving due emphasis to the principles of personal and general deterrence and that the appellant must be adequately punished, I think an order that the appellant undertake community service is appropriate. On the charge of driving disqualified the appellant is sentenced to perform fifty hours of community service. He must also be sentenced on the charge of driving in excess of the speed limit. His offending was serious. Even though he was driving on a freeway where other vehicles could not enter at frequent intervals and at a time when there was little other traffic he drove at a speed substantially above the speed limit. The observations of the learned Magistrate about this offence are entirely appropriate. The maximum penalty is a fine of $1,000: see s164A(2) of the Road Traffic Act. I allow the appeal and set aside the sentence of imprisonment. On the charge of driving whilst disqualified, the appellant is sentenced to fifty hours of community service. On the charge of speeding, I impose a fine of $250. The court fees, the levy and the administration fee fixed by the learned Magistrate will remain. I allow the appellant three months in which to pay the fine, fees and levy.

Also the appellant should be disqualified from holding or obtaining a licence to drive a motor vehicle.  I am informed that he needs to be able to drive motor vehicles in the course of his employment.  He is employed as a Senior Automotive Technician by a motor vehicle retailer and drives vehicles on a daily basis.  However, it is not suggested that he will lose his employment if he is unable to drive motor vehicles unless the period of disqualification is lengthy.  In my view, the circumstances require a further period of disqualification.  On the charge of driving whilst disqualified, the appellant will be disqualified from holding or obtaining a licence to drive a motor vehicle for a period of four weeks to commence at 12.01am on 1st June 1988.  I have fixed that time for the commencement of the period of disqualification so that the employer of the appellant will have adequate time to make arrangements to cover his inability to drive motor vehicles in the course of his employment.

Before parting with the matter I feel it is necessary to make some observations about remarks of Perry J in Bates v Police (unreported, 19th November 1997, Jd No S6430).  After considering the meaning of contumacious and concluding, correctly in my view, that “the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance”, which is the view expressed in Cadd, Perry J went on to say at p9:

“Unassisted by the authority of the decision of the Full Court in Cadd, one might have thought that to regard the penalty of imprisonment as reserved for cases involving a contumacious breach of the section, would be to add words which do not appear in the section, even when considered in conjunction with s11 of the Criminal Law (Sentencing) Act.

Be that as it may, I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the action, 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.”

I regret that I am unable to agree with those observations.  One would not normally expect to see a sentencing standard of the type discussed in Cadd expressed in the legislative provision creating an offence and fixing a maximum penalty.  It is not appropriate, in my view, in effect to circumscribe the circumstances which amount to contumacious offending in the manner expressed by Perry J.  The offending may not be contumacious even though the driving is over more than a short distance and in circumstances do not involve an emergency or duress.  The present case is an example.  The offending was foolish, not contumacious.  If the meaning of contumacious in the present context was defined in that way so as to exclude only very few types of cases from its reach, there would be a very different sentencing standard than that expressed by the majority in Cadd.