HOWLETT v Police

[2004] SASC 387

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HOWLETT v POLICE

Judgment of The Honourable Justice Besanko

25 November 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING

Appeal against sentence imposed by a Magistrate - the appellant was convicted of driving an unregistered motor vehicle, driving an uninsured motor vehicle, driving a motor vehicle whilst disqualified from holding or obtaining a licence, failing to truly answer and providing false information on a bail application - the appellant was sentenced to a period of four months imprisonment and disqualification from holding or obtaining a driver's licence for a period of three years - whether the period of imprisonment and the period of disqualification were manifestly excessive - where the appellant has a history of offences in relation to motor vehicles - appeal allowed but only for the purpose of setting aside the order that the appellant be disqualified from holding or obtaining a driver's licence for three years - order that the appellant be disqualified from holding or obtaining a driver's licence for 12 months substituted.

Magistrates Court Act 1991 s 42; Motor Vehicles Act 1959 s 9, s 102, s 91, s 74; Road Traffic Act 1961 s 42, s 168; Bail Act 1985 s 22, referred to.
Sadler v Crossman (1988) 47 SASR 331; Peart v Police (2003) 229 LSJS 194; House v R (1936) 55 CLR 499; Uznanski v Searle (1981) 26 SASR 388, considered.

HOWLETT v POLICE
[2004] SASC 387

Magistrates Appeal

1. BESANKO J: This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991. The appellant submits that a sentence imposed on him by a Magistrate on 13^th September 2004 was manifestly excessive. 

2. On 28^th January 2004 the appellant was charged on complaint with five offences.  The offences and the maximum penalty in relation to each offence are as follows:

   1.On 24^th January 2004 at Pennington in the State of South Australia, the appellant drove a vehicle, namely a motor vehicle, on a road, namely Grand Junction Road, the registration of such motor vehicle not then being in force under the provisions of Part 2 of the Motor Vehicles Act 1959 (“MVA”), contrary to s 9 of the said Act.

   The maximum penalty for this offence is an amount equal to twice the amount of the prescribed registration fee for 12 months that would have been payable for the granting of registration in respect of the vehicle on the day of the offence, or $750 whichever is the greater.

   2.On 24^th January 2004 at Pennington in the said State, the appellant drove a vehicle, namely a motor vehicle, on  a road, namely Grand Junction Road, without there then being in force, in relation to the said motor vehicle, a policy of insurance complying with Part IV of the MVA, contrary to s 102 of the said Act.

   The maximum penalty for this offence is a fine of $2,500 and disqualification from holding and obtaining a driver’s licence for a period of not more than 12 months.

   3.On 24^th January 2004 at Pennington in the said State, the appellant drove a vehicle, namely a motor vehicle, on a road, namely Grand Junction Road, whilst he was disqualified from holding or obtaining a licence contrary to s 91 of the MVA.

   The maximum penalty for this offence is, in the case of a first offence, imprisonment for six months, and in the case of a subsequent offence, imprisonment for two years.  The appellant is a first offender.

   4.On 24^th January 2004 at Pennington in the said State, the appellant being the driver of a vehicle, namely a motor vehicle, and on being asked questions by a member of the police force, for the purposes of ascertaining the name of the said driver did not truly answer such questions contrary to s 42 of the Road Traffic Act 1961 (“RTA”).

   The maximum penalty for this offence is a fine not exceeding $1,250.00.

   5.On 24^th January 2004 at Port Adelaide in the said State, the appellant provided false information in an application for release on bail, knowing it to be false, contrary to s 22 of the Bail Act 1985.

   The maximum penalty for this offence is a fine of $1,250.00.

3. On 13^th September 2004 the appellant pleaded guilty to each of the above charges.  He was sentenced to a period of four months imprisonment commencing on 29^th August 2004.  The Magistrate also ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of three years commencing on 13^th September 2004.  The appellant submits that both the period of imprisonment and the period of disqualification were excessive.

4. The circumstances surrounding the offending can be briefly stated.  At 9.40 am on 24^th January 2004, the appellant was stopped by police officer on Grand Junction Road, Pennington.  The vehicle he was driving was a silver Holden sedan, and a registration check showed that the registration of the vehicle had expired on 8^th September 2003.  The appellant was asked by the police officers to state his full name and address.  He gave a false name.  After his arrest, the appellant completed a bail application form, and on this form he again gave a false name.  Enquiries by the police revealed that the appellant did not hold a current driver’s licence.  Without objection from counsel for the appellant, counsel for the respondent told me that the excuse the appellant gave police officers for driving was that he drove the vehicle so that his mate could buy a new saw blade and go to the pub.

5. The appellant has never held a South Australian driver’s licence.  He has a history of offences in relation to motor vehicles.  On 2^nd January 2002 he was convicted for driving an unregistered vehicle, driving while uninsured and driving without a licence.  He was fined the sum of $300.00 and disqualified from driving for 28 days.  On 19^th April 2002 the defendant was convicted for driving without a licence.  He was discharged without penalty.  On 21^st March 2003 the defendant was convicted for driving an unregistered vehicle, driving without a licence and indecent language.  He was fined the sum of $400.00 and disqualified from driving for three months commencing from 21^st March 2003.  On 17^th October 2003 the appellant was convicted for driving a vehicle without a licence.  He was fined the sum of $100.00 and disqualified from driving for a period of four months commencing from 17^th October 2003.  It will be seen from the above that the appellant has been convicted of driving without a licence on four separate occasions.

6. Counsel for the appellant submitted that the Magistrate erred in two respects.  First, he erred in that the term of imprisonment of four months for the offence of driving whilst disqualified was manifestly excessive.  The appellant referred to the fact that he had pleaded guilty to the various offences and, assuming the Magistrate took that into account, the Magistrate’s starting point was manifestly excessive.  It was submitted that the Magistrate’s starting point must have been in the order of five months.  The appellant also submitted that there was no suggestion that on the day he committed the various offences his manner of driving was inappropriate.  Secondly, counsel submitted that the Magistrate erred in that the period of licence disqualification was excessive.  He submitted that the offences which led to the licence disqualification were the offences other than the offence of driving whilst disqualified.  In relation to the offence of driving whilst disqualified, it was said that the Magistrate would not have (or in the alternative, should not have) imposed a period of disqualification in addition to a term of imprisonment (Sadler v Crossman (1988) 47 SASR 331 and Peart v Police [2003] SASC 274; (2003) 229 LSJS 194) and that the other offences did not justify a period of disqualification of three years.

7. Counsel for the respondent referred to the appellant’s criminal record, and he submitted that the sentence of imprisonment imposed by the Magistrate was within the limits of his sentencing discretion.  There was nothing extenuating about the appellant’s reason for driving.  He referred to the well established principles relevant to whether an appellate court would interfere with the exercise of a discretion (House v R (1936) 55 CLR 499; Uznanski v Searle (1981) 26 SASR 388). Counsel for the respondent pointed to the fact that it was agreed before the Magistrate that the appellant’s conduct in driving whilst disqualified was contumacious. Counsel said that the period of licence disqualification was imposed under s 168 of the Road Traffic Act 1961 (“RTA”) and he said that there was no inflexible rule that a period of licence disqualification will not be imposed in addition to a term of imprisonment for the offence of driving whilst disqualified.  Counsel for the respondent referred to what he described as an anomaly in the MVA in terms of what is a subsequent offence for the purposes of s 74(2) and what is a subsequent offence for the purposes of s 91(5). In view of my conclusions it is unnecessary for me to address this point.

8. I deal first with the offence of driving while disqualified for which a term of imprisonment for four months was imposed.  The maximum penalty for this offence is six months imprisonment and the appellant pleaded guilty to the charge.  The Magistrate’s starting point and his sentence are high but I do not think the sentence is manifestly excessive.  On four previous occasions over the period 2002 – 2003 the appellant had driven when he did not hold a driver’s licence.  His conduct reveals a serious disregard for the law and his obligations under the law.  As has been made clear time and time again, on an appeal of this nature this Court will not interfere simply because it might have imposed a different sentence.  This Court will interfere if an error of principle is shown or it is otherwise clear that the sentence is manifestly excessive.  In view of his record, neither of those matters are established in this case and I would not interfere with the sentence of imprisonment for the offence of driving while disqualified.

9. I turn now to the order for licence disqualification for three years made under s 168 of the RTA.  In my opinion, the period of licence disqualification is manifestly excessive having regard to the law as it stood at the time the offences were committed.  It is not the case that for the offence of driving while disqualified a period of disqualification can never be imposed in addition to a period of imprisonment, but having regard to the fact that the sentence of imprisonment is relatively substantial and at the upper end of the range, I think the appropriate period of disqualification should be determined by having regard to the other relevant offences.  Doing that, I think a period of licence disqualification of 12 months is appropriate.

10. I would allow the appeal but only for the purpose of setting aside the order made by the Magistrate that the appellant be disqualified from holding or obtaining a driver’s licence for three years from 13^th September 2004 and substituting therefore an order that the appellant be disqualified from holding or obtaining a driver’s licence for 12 months from 13^th September 2004.  I would not interfere with the sentence of imprisonment of four months from 29^th August 2004 for the offence of driving while disqualified.