HENDY v Police - [2008] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HENDY v POLICE
[2008] SASC 131
Judgment of The Honourable Justice Kelly
16 May 2008
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
Appeal against sentence - offence of driving whilst disqualified contrary to s 91 of the Motor Vehicles Act 1959 - sentenced to 14 days imprisonment suspended upon the appellant entering into a bond to be of good behaviour for 12 months - whether magistrate erred in finding the driving contumacious - whether sentence manifestly excessive.
Held: in light of facts which magistrate accepted, magistrate erred in finding that those circumstances amounted to contumacious driving - sentence of the magistrate is set aside - appeal allowed - appellant re-sentenced.
Motor Vehicles Act 1959 s 91, referred to.
Police v Cadd and Ors (1997) 69 SASR 150, applied.
Bates v Police (1997) 70 SASR 66; Harshazi v Police (1998) 71 SASR 316; Police v Brookman [2006] SASC 378; Mill v Police [2007] SASC 253; Johns v Police (Lander J, Supreme Court of South Australia, 24 June 1998, S6729 unreported); Carbone v Police (2005) 242 LSJS 195; Police v Bastow (1996) 24 MVR 276, considered.

HENDY v POLICE
[2008] SASC 131
Kelly J
Introduction

The appellant pleaded guilty to the offence of driving a vehicle on a road whilst disqualified from holding or obtaining a driver’s licence contrary to Section 91 of the Motor Vehicles Act 1959 (SA). She was sentenced to a term of fourteen days imprisonment which the learned magistrate suspended upon the appellant entering into a good behaviour bond in the sum of $200 for a period of 12 months.
This appeal raises once again the issue of what amounts to “contumacious offending” in the context of an offence contrary to s 91 of the Motor Vehicles Act.
Background
The appellant is a 30 year old woman with no previous convictions. On 15 October 2007 she was stopped by the police as she was driving on her way to pick up her four young children from the Reynella Primary School. At the time two orders for licence disqualification were against her. The appellant told police that she was aware of both orders. Her explanation for driving was that she considered she had no other option as she had to pick up her young children from the school and had no other means by which to get them home.
The magistrate was asked to find that the appellant’s driving was in the circumstances, not contumacious. In her remarks on penalty dated 6 February 2007, her Honour said:
I am asked to find the matter is non-contumacious. I am not prepared to do that even on the basis of what your counsel has put to me. Initially it was put that you were driving because your partner had been delayed in picking up the children. Further questioning of counsel revealed that in fact it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HENDY v Police

Details

AGLC: HENDY v Police [2008] SASC 131
Case: [2008] SASC 131
Decision Date: 16 May 2008

CaseChat Overview and Summary

The appellant, a woman with no prior convictions, appealed against her sentence for driving while disqualified, contrary to section 91 of the Motor Vehicles Act 1959. She was sentenced to 14 days imprisonment, suspended on the condition of good behaviour for 12 months. The appeal raised questions about whether the magistrate correctly found the driving to be contumacious and whether the sentence was manifestly excessive. The appellant argued that the magistrate erred in determining that her driving was contumacious and that the sentence was too harsh given the circumstances.

The court examined the definition of "contumacious" as established in Police v Cadd, which requires more than mere intention to drive while disqualified. It involves committing the offence with a total disregard for the disqualification and disobedience to the authority imposing it. The court considered the appellant's situation, where she drove to pick up her children due to a lack of alternative means of transport and her fear of public transport. The magistrate found that there were alternatives available, but the court noted the appellant's concern about leaving her children at school and her lack of family support in the area.

The court found that the magistrate erred in considering the driving to be contumacious given the circumstances. The magistrate had acknowledged the appellant's need to pick up her children and her fear of public transport, but still considered there were alternatives. The court set aside the magistrate's sentence and re-sentenced the appellant, taking into account the non-contumacious nature of her driving. The court did not consider the sentence to be manifestly excessive, given the appellant's need to address her fear of public transport and other issues through counselling. The appeal was allowed, and the original sentence was set aside.

Orders

Orders of the court

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Background

Background to the litigation

This appeal raises once again the issue of what amounts to “contumacious offending” in the context of an offence contrary to s 91 of the Motor Vehicles Act.Background The appellant is a 30 year old woman with no previous convictions. On 15 October 2007 she was stopped by the police as she was driving on her way to pick up her four young children from the Reynella Primary School. At the time two orders for licence disqualification were against her. The appellant told police that she was aware of both orders. Her explanation for driving was that she considered she had no other option as she had to pick up her young children from the school and had no other means by which to get them home. The magistrate was asked to find that the appellant’s driving was in the circumstances, not contumacious. In her remarks on penalty dated 6 February 2007, her Honour said:I am asked to find the matter is non-contumacious. I am not prepared to do that even on the basis of what your counsel has put to me. Initially it was put that you were driving because your partner had been delayed in picking up the children. Further questioning of counsel revealed that in fact it was then said that your partner was unwell and that he was in fact at home on this particular day. In any event, I consider that there were alternatives available to you. I accept however that the situation was a situation where you felt that you needed to go and pick up the children because you were concerned about leaving them at school and I do sentence you on the basis that you do not have any family here because your family come from Wallaroo.In terms of you not having caught public transport, I take into account the fact that you have a fear of catching public transport as a result of things that have happened in the past. I will not go over those matters which are no doubt painful to you, I simply acknowledge that there are some issues that you need to come to grips with. To date counselling has not been able to address those issues. The appellant appealed on the basis that the sentencing magistrate erred in finding her driving contumacious. It was further submitted that the sentence of imprisonment was manifestly excessive.Analysis What constitutes a contumacious breach of s 91 of the Motor Vehicles Act has been the subject of much judicial comment in the last 10 years since the decision in Police v Cadd and Ors (1997) 69 SASR 150. In Cadd, Mullighan J at 179 explained:…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… Since the decision in Cadd there have been numerous decisions of single judges of this court discussing the factors which could constitute contumacy.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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