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 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.
In Bates v Police (1997) 70 SASR 66 which was decided soon after the decision in Cadd, Perry J at 73 described the circumstances which could constitute contumacy in this way:
…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 section, 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.
In Harshazi v Police (1998) 71 SASR 316 Mullighan J at 320 expressed concern that if the remarks of Perry J in Bates were to be accepted, it might in effect circumscribe the circumstances which amount to contumacious offending.
Notwithstanding Mullighan J’s concerns, in a number of cases following, this court has continued to refer to Bates and in particular Perry J’s remarks, as an aid to determining whether contumacy has been established. (See Layton J in Police v Brookman [2006] SASC 378, White J in Mill v Police [2007] SASC 253, Johns v Police (Lander J, Supreme Court of South Australia, 24 June 1998, S6729 unreported)).
In both Brookman and Mill an issue arose as to what kind of emergency was necessary to negative a finding of contumacy. If other alternative ways of dealing with the alleged emergency existed in those cases, then the decision to drive was found to be a decision based on convenience as opposed to necessity. In Brookman, Layton J referred to an offender’s prior record as relevant to the question of contumacy in that it may or may not reflect a continuing attitude of disobedience to the law.
In response to the concerns expressed by Mullighan J in Harshazi, Lander J in Johns said:
If this court is to lay down a sentencing standard and that was the view of the majority in Police v Cadd, it must be able to describe with some particularity what does or does not amount to contumacious offending. It is not enough to say that a person should not be imprisoned unless his or her conduct is contumacious. To do no more will give rise to the expression of idiosyncratic views on what amounts to contumacy which will lead to wide divergence in sentencing for this offence. This Court must, for the guidance of magistrates and the consistency of decision in this Court, identify what conduct is contumacious. In my respectful opinion, it is not a question of circumscribing the circumstances which amount to contumacious offending to describe particular conduct, without more, as being contumacious.
His Honour later went on to say:
Because the test is contumacy the enquiry must be more directed to attitude. The reasons for driving a motor vehicle, in circumstances where the offender well knew that he or she had been ordered by a Court or by administrative action not to drive a motor vehicle, are important. If the driving exhibits an attitude of defiance then that would usually amount to contumacy and may call for a sentence of imprisonment.
To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance. It rather suggests that it does not suit the driver to obey the order of the court. If the offender’s attitude exhibits defiance that would suggest contumacy.
Duggan J in Carbone v Police (2005) 242 LSJS 195, pointed out that the difficulties which these cases present for the courts, remain, despite the Full Court’s decision in Cadd. As his Honour said, the concept of contumacious offending as an important touchstone for consideration of penalty, is often difficult to apply in practice.
With these statements of principle in mind, I turn now to consider the magistrate’s reasons.
I infer from her Honour’s remarks in explaining why she was not prepared to find the appellant’s driving non-contumacious, that she may have entertained some reservations about the veracity of the explanation proffered by the appellant. The magistrate noted the apparent change of instructions about the reason for the appellant’s partner’s inability to pick up the children.
It was open to the magistrate to invite the appellant to give evidence to clear up any confusion or lack of clarity about the circumstances in which she drove.
As Cox J observed in Police v Bastow (1996) 24 MVR 276 at 278:
Assertion is not the same as proof, and where a defendant’s explanation appears to be inherently improbable or leaves important questions unanswered, or where in any event the prosecutor reasonably seeks to test it, the Court should invite the defendant to give sworn evidence on the matter. It is for him to satisfy the Court that the normal penalty should not be applied in his case. Obviously the prosecutor is entitled to be heard on that question. All of this may take a little time, but the proper and consistent administration of s 91 is important.
In the light of the prosecutor’s apparent acquiescence in the facts submitted on behalf of the appellant, it is understandable why the magistrate may not have considered it necessary to take the course suggested by Cox J in Bastow.
Nevertheless, the magistrate seems to have accepted that the appellant had no family or friends in Adelaide to call upon and that she had been confronted with a situation where she genuinely believed she needed to go to the school to pick up her four young children.
Although the magistrate commented that there were other alternatives available, in the end she agreed that the obvious alternative of catching public transport was not open to the appellant. The magistrate accepted that the appellant had a psychological problem preventing her from catching public transport as a result of a sexual assault upon her as a young child while on a bus.
There was no suggestion by either counsel for the appellant or the respondent on the hearing of this appeal that this court should embark on a factual enquiry of its own as to the circumstances in which the appellant drove. In the absence of any suggestion by the respondent that I should proceed in that way, I am prepared to determine this appeal on the basis of the facts which the magistrate appears to have found.
Even accepting that the magistrate may have had reservations about some of the submissions which were put to her, there does not seem to be any doubt that she accepted that the appellant believed it was necessary to drive and pick her four young children up from school. She stated that she did so because her partner was too ill to drive, that she had no family or friends to call upon, and she had psychological issues associated with travelling on public transport.
On the basis of those facts, I respectfully disagree that the material before the magistrate enabled her to make a positive finding that those circumstances amounted to contumacious driving in the sense explained by Mullighan J in Cadd. The fact that the police who stopped the appellant on the date in question, thereupon went with the appellant to pick up the children from the school, underscores the genuineness of the appellant’s instructions about the circumstances which confronted her on that day.
For these reasons I consider the appeal should be allowed and the appellant is to be re-sentenced.
For the purpose of re-sentencing the appellant I accept the facts submitted in the sworn affidavits tendered on the hearing of this appeal.
The appellant’s age, character and personal circumstances are particularly important. She is the carer of four young children between the ages of 4 and 10 years. Apart from her current partner, she has no other friends or family in Adelaide to support her. As a young child she was sexually assaulted on a bus as a result of which she suffered psychological issues necessitating counselling. In recent years the appellant witnessed a drive-by shooting which compounded her anxiety and fear about being in public places.
All of the these factors lead me to conclude that a less severe form of punishment than imprisonment in the appellant’s case is warranted.
I allow the appeal. The sentence of the magistrate is set aside. I will hear counsel as to an appropriate penalty.