Harvey v Police No. Scciv-02-1294

HARVEY v POLICE
[2002] SASC 362
Magistrates Appeals: Criminal (ex tempore)

DOYLE CJ: The appellant appeared before a Magistrate, charged with a number of driving offences and with the breach of three community service orders. The community service orders had been made when the appellant was convicted of further and earlier driving offences. The appellant pleaded guilty to the driving offences with which he was charged and to the breaches of the community service orders. The Magistrate sentenced the appellant to imprisonment for separate periods of imprisonment, amounting in all to a total of 12 months on the driving offences. By that I mean the main driving offences. I will explain that a little later.
He ordered that the appellant be released after serving two months imprisonment, the balance of 10 months being suspended upon the appellant entering into a bond to be of good behaviour for the balance of 10 months. He disqualified the appellant from holding or obtaining a driver’s licence for 12 months. On the hearing of the appeal I was informed by Mr Wells, that the appellant has now served the two months imprisonment and has been released within the last few days.
In relation to the breach of the community service orders, the Magistrate imposed no penalty, having regard to the fact that the appellant had already spent 45 days in custody on the driving offences.
The Magistrate said that he also took account of those 45 days in fixing the sentence for the driving offences.
At the same time, the Magistrate dealt with some driving offences other than what I have called the main driving offences. In relation to these other lesser driving offences, in every case he convicted the appellant without penalty.
The appellant appeals on the ground that the sentence for the driving offences is manifestly excessive. He also complains of some procedural aspects of the sentence.
The first driving offence was driving on 28 September 2001 while disqualified from holding or obtaining a driver’s licence. The appellant had been disqualified from holding a driver’s licence by a court order for the period 14 May 2001 to 13 April 2002 as best I can determine. For this offence, the appellant was sentenced to imprisonment for one month. The file also records that on this count the appellant was disqualified from holding or obtaining a driver’s licence for 12 months.
Next came a group of offences committed on 4 October 2001, only about one week later. Again, there was an offence of driving while disqualified, there was an offence of driving a motor vehicle contrary to the terms of a defect notice and an offence of removing a defect label. On the offence of drive while disqualified the Magistrate sentenced the appellant to imprisonment for two months, cumulative on the first sentence. On the other counts, the appellant was convicted without penalty.
The third group of offences occurred on 18 October 2001, just two weeks later again. The offences were again drive while disqualified and driving contrary to a defect notice. The Magistrate sentenced the appellant to imprisonment for three months on the first count, cumulative upon the other two sentences. He convicted the appellant without penalty on the other count.
The fourth group of offences was committed on 5 December 2001 about seven weeks later. The offences were driving while disqualified and driving an unregistered vehicle and driving an uninsured vehicle. The Magistrate sentenced the appellant to imprisonment for three months on the first offence, again cumulative on the other sentences. He convicted without penalty on the other counts.
The fifth group of offences was committed on 27 December 2001 about three weeks later. I am informed by Ms Sutcliffe in her submissions on appeal, that the appellant had been before the court on 20 December on the earlier offences. It is a significant aggravating factor that only seven days after appearing before the court, the appellant was yet again offending. On this occasion the offences were drive while disqualified, driving an unregistered vehicle, driving an uninsured vehicle and driving a vehicle with an incorrect registration label. On the first offence the Magistrate imposed a sentence of imprisonment for three months, cumulative on the other sentences. On the other offences he convicted without penalty.
The end result was imprisonment for 12 months, with the orders I have already referred to for early release, coupled with a 12 month licence suspension.
The community service orders were imposed in relation to earlier driving offences. In brief, on 14 May 2001 the appellant had been convicted of driving with an excessive level of alcohol in his blood, driving an unregistered vehicle and driving without a licence. On the same day he was convicted of driving an unregistered vehicle, driving an uninsured vehicle and on another count of driving without a licence. On the same day he was also convicted on another count of driving an unregistered vehicle, driving an uninsured vehicle and driving without a licence. Those three groups of offences all attracted community service orders.
The material before the Magistrate indicated that the appellant had made no attempt to comply with the community service orders that were made in May 2001. In each case he had failed to attend for the first interview as required. He gave no excuse. In relation to each order three separate appointments had been made and so he failed to attend on a total of nine occasions. As I remarked to Mr Wells during the course of the submissions, there is no indication from the appellant as to why he made no attempt to explain his absence. There is no suggestion that he could not have telephoned to indicate that because he did not have a licence and because of where he lived he was having difficulties complying with the requirement to attend for a first interview.
In all the circumstances the material suggests a cavalier disregard of the orders, although I accept that because Mr Harvey lived at Cherry Gardens, and he had to attend at the Noarlunga Community Correctional Centre, he would have had to travel a considerable distance for the appointments. It is convenient to record here that apart from this, the appellant’s record includes a blood alcohol offence in November 1991, an offence of driving under the influence in January 1989, an offence of driving an unregistered and uninsured vehicle in 1986 and an offence of driving under the influence in February 1981.
This is a poor driving record suggestive of irresponsibility in relation to alcohol and driving. The offences of driving an unregistered and uninsured vehicle, coupled with repeated occurrences of that offence, is also suggestive of cavalier disregard of the requirements of the law.
So the position was that the appellant came before the Magistrate with a poor record and facing serious offences which had been committed over a relatively short period of time.
As to what I will call these new driving offences, there was really no excuse. The appellant admitted the offences. He knew his licence had been taken away from him. His counsel put in mitigation to the Magistrate that the appellant lived with and cared for his mother who did not drive. She was 86 years of age. He needed to use his car to purchase their household requirements.
They lived at Cherry Gardens in a semi-rural suburb of Adelaide, and some distance from the local shops. There was no public transport immediately available at their place of residence. The appellant could not afford taxis. The appellant also said that he needed to use his car to get to his place of employment for the same reason, that is, there being no public transport and because he could not afford taxis. His place of employment had been for some time at Marion and again I accept, using my general knowledge, that that is a considerable distance from his place of residence. I accept that travelling that distance by taxi would have been very expensive.
Each time the appellant was apprehended on these new charges he said that he was either driving to work or to get household needs, although the submissions put to the Magistrate in relation to one occasion suggest to me that he might have merely been visiting a friend. As to the breach of the community service orders the appellant pointed again to his place of residence and difficulty in fulfilling the required hours of community service.
As to all of these matters I simply record some points that I made to Mr Wells in the course of submissions. Nothing was put to the Magistrate to indicate that it was impossible to obtain assistance for the appellant’s mother through government or local government services. While there are indications in the material put before the Magistrate that the appellant could not at all, or continuously, get anyone to drive him to work, the explanation in relation to that was relatively sparse. There is also the point that living in what is a well known fruit and vine growing area as he does, it is not clear why the appellant could not obtain employment in his local area. It may be that Mr Wells is right in pointing out that at his age, about 55 years, fruit picking or grape picking or something like that would have been beyond him.
Overall though I must say that the material put before the Magistrate, while it supports a case of considerable difficulty for Mr Harvey, having regard to the age and circumstances of his mother and his own place of residence, does not show a case which I would regard as a compelling one. Again I repeat the point that the complete absence of any attempt to explain his failure to comply with the obligation to attend at the office in connection with the community service orders, and some other features of the matter, suggest to me that, to some extent at least, Mr Harvey is a person who is not entirely overwhelmed by the circumstances, but may also be a person who does not sufficiently appreciate and accept his obligation to comply with orders of the kind that he was facing.
I should also say that it is clear from what was put to the Magistrate that the offences with which he was charged could not be treated as isolated offences. It is quite clear from the pattern of the offending and from the submissions put to the Magistrate that these offences were part of a pattern of continuing breaches of the law. That is a relevant matter. The appellant could of course only be punished for the offences before the court, but as I said, they could not be treated as isolated offences.
Before the Magistrate the appellant’s counsel did not deny that the appellant’s conduct was of a kind that entitled the Magistrate to impose a sentence of imprisonment. That is recorded in the material before me. I agree with that. I appreciate the difficulties that the appellant faced, but it seems to me that his response was simply to ignore the court order removing his entitlement to drive and to do so on a continuing basis. The offences were in no sense a response to a sudden emergency. The appellant’s stance was, in effect, that his needs and interests outweighed the requirements of the law and that as he needed to drive his car he would do so.
Taking into account all the circumstances that I have summarised already, and bearing in mind the comments I have made on some aspects of those circumstances, I consider that the sentences imposed were appropriate. Anything other than a severe punishment would run the risk of discrediting and undermining the court’s own orders. In my opinion, no valid complaint can be made about the sentences or about the order for early release.
The appellant has to learn that despite his circumstances the orders of the court cannot be disregarded. His poor record does suggest that, regrettably, imprisonment appears to be the only way to get the message through to him. I add that the disregard of the community service orders and some of the other aspects of the matter on which I have commented support the conclusion, that absent a firm response the appellant is a person who would continue to disregard court orders and laws affecting the use of motor vehicles when they conflict with his own interests.
Having said that, and before I turn to the licence disqualification, there are one or two other comments that I think it appropriate to make.
First of all, the Magistrate has not indicated to what extent he reduced the sentence, having regard to the appellant’s plea of guilty. This was the sort of case in which at best only a very small reduction would be made. I say that because there was really no answer to these charges.
However, the Court has indicated that, at least when significant sentences of imprisonment are being imposed, it is desirable for the sentencing judge or Magistrate to indicate the reduction that is made, if any, on account of the plea. The Magistrate in question has made no reference to this.
However, to fail to refer to the reduction is not in itself an error and in the particular circumstances I am satisfied that even if one assumes a modest reduction for the plea, nevertheless the sentences imposed are still quite appropriate. In other words, there is nothing to suggest that the Magistrate erred in this respect.
The other point I would make is that the Magistrate has given no particular reasons for imposing a sentence of imprisonment. This is a case in which, in my respectful opinion, there were strong reasons for imposing the sentence that the Magistrate did and for making the sort of orders that he made. Again, in my respectful opinion, when a substantial sentence of imprisonment is imposed it is appropriate to give brief reasons why imprisonment is an appropriate response and why no lesser sentence would be appropriate. This is a strong case and in the particular circumstances, in my opinion, the failure to do so is not indicative of error.
I turn now to the licence disqualification, a period of 12 months. Mr Wells submitted that the Magistrate had erred in this respect in that he had imposed a period of licence disqualification on a single count and had imposed no licence disqualification on other counts. Again, the point was fairly made by Mr Wells that no explanation was given by the Magistrate for his decision to impose a licence disqualification. The Magistrate gave no explanation for the period imposed, nor did he explain why the licence disqualification was imposed in relation to one count only, as it happened, the first of the offences of drive while disqualified.
It appears that the Magistrate imposed the licence disqualification under s 168 of the Road Traffic Act. In my opinion, that section empowered the Magistrate to act as he did. In the particular circumstances of the case it was open to the Magistrate to conclude that the appropriate course to follow was to impose a single period of licence disqualification rather than separate periods attached to each of the offences of driving while disqualified.
Although the Magistrate’s reasons do not indicate the offence to which the licence disqualification was attached, that is not suggestive of any error. The court record, in the form of the endorsement on the files, makes it quite clear that in relation to the offences other than drive while disqualified the outcome was a conviction without penalty. That leads to the conclusion that the only offences that could have attracted the Magistrate’s attention in terms of disqualification of licence were the offences of drive while disqualified.
In my opinion those five offences left it open to the Magistrate to impose a further period of disqualification and a period as long as 12 months, and in my opinion in the circumstances it was open to the Magistrate to decide that that period of disqualification should be attached to a single offence rather than spread over the five offences.
Mr Wells also suggested that the Magistrate erred in failing to indicate whether he had reduced the period of licence disqualification on account of the plea of guilty and if so to what extent. For my part, I would not accept that there is an obligation on a Magistrate, first of all, to reduce penalties such as fines and licence disqualifications on account of a guilty plea, nor do I accept that there is an obligation to indicate the extent of such reduction when dealing with such penalties. I do not consider that the Magistrate has erred in this respect.
The real difficulty in this case is the question of whether the Magistrate was right to impose a licence disqualification, or at least one of the length imposed. The difficulty to which Mr Wells pointed is that, in a sense, using colloquial language, a further period of licence disqualification set Mr Harvey up to fail. The fact that having come out of prison he has lost his job, and returns to Cherry Gardens to care for his mother in circumstances in which an inability to drive is a real hardship for himself and causes consequent hardship for his mother, is a circumstance that gives one cause to pause.
In general terms I must say that this is a series of offending that one would expect to attract a further licence disqualification, and such an order could pass without comment. In general terms, a licence disqualification for a period of 12 months would pass without comment in circumstances like this for a man with a record like this. But the fact that the appellant’s mother is dependent on him, and the place in which he lives, and the impact of that on his prospects of employment, is a matter that gives one pause.
However, I must again add that the fact that the appellant has given no particular explanation as to why he cannot obtain employment locally is also a matter that troubles me somewhat.
However, I also put into the scales that the Magistrate had imposed a substantial sentence of imprisonment, and that the appellant still faces approximately 10 months with a suspended sentence of imprisonment hanging over his head. I am conscious of the fact that, to the extent that he needs to be taught that he cannot disregard orders of the court and the laws relating to motor vehicles, the suspended sentence is a substantial sanction which hopefully will teach him that.
I also have some concern arising from the fact that there is nothing in the Magistrate’s reasons indicating how he decided that a period of 12 months’ licence disqualification was appropriate. In one sense it might be said that for such serious offending this went without saying. On the other hand there are the personal circumstances to which Mr Wells pointed, which are of considerable force. There is nothing in the Magistrate’s reasons to indicate whether or not he was fully alive to the significance of these circumstances.
While I emphasise it was not an error on the part of the Magistrate to fail to give reasons for imposing the licence disqualification that he imposed, it does cause me some difficulty in that I do not have the benefit of knowing why and how the Magistrate concluded that this period of disqualification was appropriate.
In all the circumstances, and after a good deal of thought, I have come to the conclusion that in this respect the Magistrate erred and that the appeal should be allowed. I have come to the conclusion that in the particular circumstances of the case, and taking account of the 12 month period of imprisonment which I regard as appropriate, it was an error to impose as well a licence disqualification for a period as long as 12 months. I am particularly influenced by the matters on which Mr Wells mainly rested his argument, namely the issue of employment and the appellant’s responsibility for his mother.
Accordingly I propose to allow the appeal but only to the extent of setting aside the period of licence disqualification of 12 months and substituting a period of licence disqualification of three months, operating from the date when the Magistrate imposed the licence disqualification, which was 22 August 2002.

Accordingly the order of the court is that the appeal be allowed; that the order disqualifying the appellant from holding or obtaining a driver’s licence for a period of 12 months be set aside; that there be substituted an order disqualifying the appellant from holding or obtaining a driver’s licence for a period of three months from 22 August 2002, but that otherwise the appeal be dismissed, and I order accordingly.

[2002] SASC 362

23 October 2002