Huynh v Police No. Scciv-04-245

[2004] SASC 117

HUYNH  v  POLICE
[2004] SASC 117

Magistrates Appeal

1. DUGGAN J.         The appellant pleaded guilty to driving a vehicle without the consent of the owner and driving whilst disqualified.  The offences were committed on 11 June 2003.

2. The order for disqualification had been made on 17 January 2003 when the appellant was dealt with for offences of driving at a speed dangerous to the public and driving whilst disqualified.  On the same occasion he was sentenced to imprisonment for ten days and the sentence was suspended.  The offences of 11 June constituted breaches of the recognisance to be of good behaviour.

3. The learned magistrate imposed a sentence of imprisonment for three months for the offence of illegal use.  He stated that, in his view, imprisonment for six months was an appropriate penalty for the offence, but he reduced the sentence to three months because the appellant had been in custody for a period of three months.  The appellant was sentenced to imprisonment for one month on the charge of driving whilst disqualified.  The sentence was ordered to be served concurrently with the sentence of three months.  The suspension of the ten day sentence was revoked and this sentence was ordered to be served cumulatively on the sentence of three months.

4. The grounds of appeal include a complaint that the sentence is manifestly excessive.

5. The appellant is 23 years of age.  He was born in Vietnam and migrated to Australia in 1990.  He has been a heroin user for a number of years.  The magistrate was informed that the vehicle was taken without the consent of the owner on 22 May 2003.  However, the appellant was sentenced on the basis of his version that he observed the vehicle parked on the side of the road on 11 June and decided to drive it.

6. According to his counsel, the appellant was ill at the time he took the vehicle as he was suffering from the effects of a withdrawal from heroin.  It was said that he drove the car so that he could obtain more heroin.  It is clear that this circumstance cannot be viewed as a mitigating factor.

7. On 4 June 1999 the appellant was convicted of illegal interference with a vehicle and larceny. He was sentenced to imprisonment for three months which was suspended. The present offence of illegal use is a subsequent offence for the purpose of imposing penalty and s 86A of the Criminal Law Consolidation Act, 1935 provides for a minimum sentence of imprisonment for three months in these circumstances.

8. The magistrate stated that the appellant was to be given credit for his plea of guilty, but the amount of the reduction was not specified despite a number of requests from this Court that such an indication is desirable.  Nevertheless, only a modest reduction was appropriate.  The appellant was apprehended driving the vehicle.  He did not co-operate with the police in that he proffered a false story that the vehicle belonged to his father.

9. In my view, the sentence imposed for the illegal use offence was appropriate and no error of sentencing principle has been demonstrated.

10. It was further argued that the appellant should not have been sentenced to the term of imprisonment for driving whilst disqualified albeit that the sentence was ordered to be served concurrently with the main sentence.

11. I have said that the order for disqualification from driving was made on 17 January 2003.  The present offences were committed five months later.  The offence of driving whilst disqualified was deliberate and took place in the course of the illegal use of a vehicle.  The disqualification had been ordered following an earlier offence of driving whilst disqualified.  The fact that the appellant was suffering withdrawal symptoms does nothing to mitigate the appellant’s conduct.  The magistrate directed his attention to the issue of contumacy, no doubt with the authority of Police v Cadd (1997) 69 SASR 150 in mind. In my view, the imposition of a short sentence of imprisonment for driving whilst disqualified was justified.

12. The appeal will be dismissed.