HARVEY v Police - [2008] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARVEY v POLICE
[2008] SASC 41
Judgment of The Honourable Justice White
22 February 2008
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - POINT NOT RAISED IN COURT BELOW
Appellant sentenced to imprisonment for three months in respect of two offences of driving whilst disqualified and one offence of breach of bail - magistrate declined to suspend the sentence - submission that the magistrate erred in finding the second offence of driving whilst disqualified was contumacious - submission that the circumstances leading to the appellant's belief that he was entitled to drive had not been properly put to, and considered by, the magistrate.
Held: appellant's claim that his driving constituting the second offence was not contumacious had not been addressed on a proper basis - appellant's claim had not been properly put to the magistrate - sentencing process miscarried - appeal allowed - sentence set aside - matter remitted to Magistrates Court for re-sentencing.
Motor Vehicles Act 1959 (SA), s 9(1), s 81B(2), s 81B(5); s 91, s 98BC, s 98BE, s 102; Bail Act 1985 (SA), s 17; Criminal Law (Sentencing) Act 1988 (SA), s 18A, referred to.
R v Baltensperger [2006] SASC 246; (2006) 96 SASR 34, considered.

HARVEY v POLICE
[2008] SASC 41
Magistrates Appeal

WHITE J: This is an appeal against a sentence imposed by a magistrate. The appellant complains of the decision of the magistrate not to suspend a sentence of imprisonment of three months imposed for two offences of driving whilst disqualified and one offence of breach of bail.
In his initial submissions, the appellant contended, amongst other things, that he had been denied procedural fairness in the sentencing process before the magistrate. The appellant submitted that the magistrate had rejected a submission that the second of the two offences of driving while disqualified was not contumacious without giving him an opportunity to present evidence on the topic. However, after this was debated in the submissions on appeal, and after an adjournment, the appellant did not pursue that submission. Instead, he submitted that the sentencing process had miscarried with the result that the magistrate had reached his decision concerning suspension of the sentence on a misapprehension. That misapprehension had resulted from the way in which the submissions on the appellant’s behalf at first instance were put to the magistrate.
I am satisfied that the magistrate was, through no fault of his own or of the prosecutor, under a misapprehension about the basis of the appellant’s claim that the second offence was not contumacious. The sentencing process did miscarry. It is appropriate that the appeal be allowed and the matter remitted to the Magistrates Court for fresh consideration.
The Sentence of the Magistrate
The appellant pleaded guilty to two offences of driving whilst disqualified, contrary to s 91 of the Motor Vehicles Act 1959 (SA) (MVA), committed on 13 February 2007 and 29 May 2007 respectively; two counts of driving an unregistered vehicle, contrary to s 9(1) of the MVA, committed on 13 February 2007 and 29 May 2007 respectively; two counts of driving an uninsured vehicle, contrary to s 102 of the MVA, committed on 13 February 2007 and 29 May 2007 respectively; and one count of breaching a condition of bail, contrary to s 17 of the Bail Act 1985 (SA), committed on 29 May 2007.
Acting pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) the magistrate imposed a single penalty for the two offences of driving whilst disqualified and the offence of breach of a bail condition. That was a sentence of three months imprisonment which the magistrate declined to suspend. For the offences of driving vehicles which were unregistered and uninsured, the magistrate imposed a single penalty, being a fine of $300. In addition, he disqualified the appellant from driving for a period of one month, making that disqualification effective forthwith.
As noted above, the appellant appeals only against the magistrate’s refusal to suspend the sentence of imprisonment.
The Circumstances of the Offences
On the hearing of the appeal, I received by consent some evidence regarding the circumstances of the appellant’s licence disqualification which had not been before the magistrate. By letter dated 10 January 2007, the Registrar of Motor Vehicles, acting under s 81B(2) of the MVA, cancelled the appellant’s provisional driver’s licence and disqualified him from holding or obtaining a driver’s licence for a period of six months commencing on 24 January 2007. This occurred apparently as a result of an accumulation of demerit points. A notice attached to the Registrar’s letter told the appellant of his right of appeal against the cancellation. It told him that if he wished to appeal, an application should be lodged at the nearest Magistrates Court. The appellant now accepts that he did not seek to exercise any right of appeal in respect of the Registrar’s letter and, in particular, that he did not attend at the Magistrates Court in Port Augusta to lodge any such appeal.
On 31 January 2007, as required by the Registrar’s letter, the appellant surrendered his licence to the office of the Registrar.
On 13 February 2007 the appellant drove a utility on Flinders Terrace at Port Augusta. When stopped by the police he admitted that he was disqualified from driving and acknowledged that he had received a letter confirming the disqualification. He also told the police that he had handed in his driver’s licence at the office of the Registrar of Motor Vehicles. The magistrate was told that the appellant had been requested by his landlord to move the vehicle. He had requested his father to attend to that but, as his father had not, he had decided to move the vehicle himself both to satisfy his landlord and in order to remove the temptation which he had to drive it. The appellant explained the absence of registration and insurance as being the result of an oversight.
In May 2007, the appellant received another notice of licence disqualification from the Registrar of Motor Vehicles dated 16 May 2007. I will return to this letter and what followed it later.
On 29 May 2007 the appellant was seen by police driving a Holden sedan on Railway Parade at Port Augusta. He told the police that he was driving a friend’s car to a mechanic for it to be repaired. The magistrate was told that the owner of the vehicle, the appellant’s flatmate, had pressured him to take the car to the mechanic. The appellant’s driving on that occasion also constituted a breach of the bail agreement into which he had entered in respect of the offences committed on 13 February 2007, namely, a condition that he not drive a vehicle.
The appellant had previous convictions which were relevant. On 12 December 2000, the appellant was convicted of the offences of driving whilst disqualified and driving an unregistered vehicle, as well as other offences. He had received a fine in respect of those offences.
The Submissions before the Magistrate
In relation to the offence of 13 February 2007, the appellant’s then counsel submitted (in addition to the matters earlier outlined) that while the appellant knew that he should not drive, he had not fully understood the consequences of doing so.
The appellant’s then counsel submitted that the magistrate should not regard the offence of 29 May 2007 as being contumacious. In her first affidavit received on appeal, counsel said that she had submitted that:
… In or about April 2007 the appellant lodged an application with the Magistrates Court at Port Augusta to get back points on his licence. He did not receive any paperwork back and found the application process very difficult and hard to understand. He did not understand that that application was not available to him for this set of circumstances. His understanding of the application was that he would be permitted to drive until the application was heard. On that basis I made the submission that his driving was not contumacious.
In a second affidavit, the counsel expresses some uncertainty about the precise content of her submission, but I think it likely, having regard to the content of the magistrate’s sentencing remarks (to which I will refer shortly), that the submission was generally in accord with the quoted passage.
The Magistrate’s Reasons
The magistrate regarded both offences of driving whilst disqualified as being contumacious. He rejected the submission that the appellant genuinely believed that he was entitled to drive on 29 May 2007 because he had been told, when lodging an application at the Port Augusta Magistrates Court to set aside the disqualification, that he could drive pending the hearing and determination of the application. The magistrate caused a check of the court’s records to be made. This confirmed that no application to set aside the disqualification had been made, and that the process followed by the court when applications of that kind are lodged had never been implemented. The magistrate explicitly rejected the submission that an application to set aside the disqualification had been made, and that the appellant had been told by someone within the Port Augusta Magistrates Court Registry that he was permitted to drive pending the hearing and determination of such an application.
The magistrate noted that, apart from the licence disqualification, it was a condition of the appellant’s bail that he not drive a vehicle. He rejected a submission to the effect that on 29 May 2007 the appellant believed that he was no longer subject to the terms of the bail agreement.
It is plain that in finding that good reason did not exist to suspend the sentence of imprisonment, the magistrate took into account his conclusion that both offences of driving while disqualified were contumacious.
The Misapprehension
On the hearing of the appeal, I received, by consent, an affidavit from the appellant which indicates that his then counsel was operating under a misapprehension at the time of her submissions to the magistrate. The relevant portions of his affidavit are as follows:
3.I do not now recall exactly my instructions to [my counsel] but believe I may have informed her that I received a letter from the Registrar of Motor Vehicles informing me that my licence would be suspended. That letter I believe had annexed to it a form which enabled me to appeal against the decision of the Registrar on the basis that I required my licence for work commitments …
4.I do not now recall whether or not I informed [my counsel] that I posted the appeal form to the Registrar of Motor Vehicles at Port Augusta using a red post box which is located on Hospital Road, Port Augusta. I did this the day after receiving the letter from the Registrar.
5.Further I believe that the letter from the Registrar informed me that upon sending the appeal notice that I was able to continue to drive until notified of the outcome of the appeal.
6.I do not recall ever instructing [my counsel] that in relation to this process that I attended the Port Augusta Magistrates Court and filed an appeal with the Registrar of that Court. Any reference to the Registrar was in the context of the Registrar of Motor Vehicles.
7.I have not received a response from the Registrar since I sent the appeal form in.
In short, the appellant’s affidavit suggests that his instructions to his former counsel were to the effect that rather than attending at the Port Augusta Magistrates Court, he had instead posted an “appeal form” to the Registrar of Motor Vehicles at Port Augusta. The appellant’s affidavit is not explicit about this, but in context, I understand him to be speaking of the second letter which he received from the Registrar of Motor Vehicles. This was confirmed in his counsel’s submission on appeal.
A copy of the letter from the Registrar of Motor Vehicles of 16 May 2007 was obtained by counsel for the Police and tendered on the appeal. That letter told the appellant that he had accumulated 14 demerit points and that, pursuant to s 98BC of the MVA, he was disqualified from holding or obtaining a driver’s licence for a period of three months. The letter continued:
The disqualification will be effective from 13/06/07 or if you are already disqualified from holding or obtaining a licence, from the termination of that other disqualification.
As indicated in the attached form, titled “Good Behaviour Option”, you may, in lieu of this disqualification, elect to accept a condition on your driver’s licence to be of “good behaviour” for a period of 12 months (commencing on the date that the disqualification would have taken effect). If you do not wish to elect to accept a condition on your driver’s licence to be of “good behaviour” for a period of 12 months, you do not need to take any action other than to surrender your driver’s licence (using the enclosed pre-paid envelope).
If you elect to accept the “good behaviour” option, you need to complete and return Part 2 of the attached form, to be received in this office no later than close of business on 06/06/07. LEGISLATION DOES NOT ALLOW FOR A GOOD BEHAVIOUR OPTION TO BE ACCEPTED AFTER THIS DATE. While you will be able to drive (provided you are not subject to some other disqualification), your driver’s licence will effectively be subject to the condition that you NOT INCUR 2 or more demerit points during the 12 month period of the condition. Before making a decision, you need to be aware that if you breach this condition (that is, you incur 2 or more demerit points), you will be disqualified from holding or obtaining a driver’s licence for twice the period of disqualification shown in this notice.
It can be seen that the appellant was told that in lieu of accepting the disqualification, he could accept a condition on his driver’s licence to be of good behaviour for a period of 12 months.
Attached to the Registrar’s letter was a document comprising two parts. The first part contained relevant information concerning the election to accept a condition to be of good behaviour for a period of 12 months. The second part contained the form of notice to the Registrar of the appellant’s election.
The appellant’s affidavit speaks of an “appeal against the decision of the Registrar” but it also speaks of the appellant having posted the form annexed to the Registrar’s letter to the Registrar. Although it is not clear, it seems that the appellant is asserting that he had made the election for a good behaviour bond. That this was so was confirmed in the appellant’s submissions on appeal. The appellant claims that he believed that, having made that election, he was entitled to resume driving.
An appeal was open to the appellant in respect of the suspension imposed by the Registrar of Motor Vehicles by the letter dated 10 January 2007 (s 81B(5) of the MVA). The exercise of that appeal entitlement involved the lodgement of an appeal in the Magistrates Court. There was no right of appeal in respect of the disqualification imposed by the Registrar by the letter dated 16 May 2007. As indicated, the only course open to the appellant was to elect to be subject to a condition to be of good behaviour.
The magistrate was told that the appellant had adopted the appeal procedure, whereas the appellant’s claim is that he had made the election under s 98BE of the MVA. The magistrate rejected, quite properly, the submission that an appeal had been lodged. He was not asked to consider the claims now made by the appellant. I cannot determine whether the error in the submission to the magistrate resulted from an error or mistake in the appellant’s instructions to his then counsel, or from a misunderstanding by that counsel. What is important for present purposes is that the appellant’s claim was not put to the magistrate, and accordingly not considered by him. Nor has the prosecution been given a proper opportunity to test his claim.
Ultimately, what the magistrate had to consider in relation to the claim of absence of contumacy in the offence of 29 May 2007 was the appellant’s state of mind. As counsel for the Police quite properly conceded in her written outline on appeal, if the appellant was under a misapprehension about the status of his licence disqualification, and believed that he could lawfully drive a motor vehicle on 29 May 2007, his driving on that day could not be characterised as contumacious.
In short, the appellant’s claim that his driving on 29 May 2007 was not contumacious has not been properly considered. I am satisfied that the sentencing process has miscarried. In saying that, I am not implying any criticism of the magistrate or of the prosecution. The difficulty has arisen from the way in which the submissions in mitigation were put to the magistrate by the appellant’s then counsel. As I have said, I am not able to say whether that arose from an error in the instructions given by the appellant to his then counsel, or from some misunderstanding by that counsel. It could well be a mistake for which the appellant is himself principally responsible.
Remittal to the Magistrates Court
I am satisfied that the appeal should be allowed and the appellant re‑sentenced.
At one stage, both counsel submitted that this Court should engage in that re-sentencing. I do not propose to adopt that course. Instead, in my opinion, the matter should be remitted to the Magistrates Court for a fresh consideration. It seems likely that the prosecution will wish to contest the appellant’s submission about the absence of contumacy in his driving on 29 May 2007. There are a number of issues going to the veracity of the appellant’s claimed state of mind on 29 May 2007, including what he did upon receipt of the letter of 16 May 2007, his understanding of the content of that letter, his understanding of the original period of disqualification, and his understanding of the bail condition that he not drive a motor vehicle. The prosecution may also wish to adduce evidence of an admission which the appellant reportedly made at the time that he was apprehended on 29 May 2007. This may involve evidence being led from the apprehending police officers. In my opinion, these matters are better addressed in the Magistrates Court. This course of action should not expose the appellant to the risk of a higher sentence being imposed on re-sentence. The Magistrates Court can be expected to exercise the restraint customarily applied in this context – see R v Baltensperger.[1]
[1] [2006] SASC 246; (2006) 96 SASR 34.
Conclusion
For the reasons outlined above, I allow the appeal. I set aside the sentence of three months imprisonment imposed by the magistrate for the two offences of driving whilst disqualified and the offence of breach of bail condition. I remit those matters for re-sentencing in the Magistrates Court.