Jeisman v Police No. Scciv-03-863

JEISMAN v POLICE
[2003] SASC 245
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Elizabeth following his plea of guilty to multiple driving offences.
He was charged on an information and separately on four complaints.
The information related to offences all of which were committed during the course of an act of driving by the appellant on 25 August 2002. As to that, there were six counts: driving a vehicle at another vehicle knowing that the act was likely to cause harm to another; driving an unregistered vehicle; driving an uninsured vehicle; driving at a speed and in a manner dangerous; failing to comply with a request by a member of the police force to stop; and driving whilst unlicensed.
As for the complaints, the first of them alleged that on 23 July 2002 at Prospect the appellant drove an unregistered and uninsured vehicle and drove whilst unlicensed.
The second complaint alleged that on 6 October 2002 at Smithfield Plains the appellant drove a vehicle in a manner dangerous, drove without due care, drove an unregistered and uninsured vehicle, drove a vehicle contrary to the terms of a defect notice, and failed to comply with a direction given by a member of the police force.
The third complaint alleged on 23 November 2002 at Brahma Lodge the appellant drove without a licence, drove an unregistered and uninsured vehicle, and drove a vehicle contrary to the terms of a defect notice.
On the fourth complaint it was alleged that on 31 December 2002 at Warooka the appellant contravened a term of a bail agreement contrary to s 17 of the Bail Act 1985.
The appellant pleaded guilty to all charges.
The magistrate proceeded to convict the appellant with respect to the first count on the information, that is, the count of driving at another vehicle, knowing that the act was likely to cause harm to another. On that charge he imposed a sentence of 6 months imprisonment to commence forthwith.
It has been suggested during the hearing of the appeal that there is some uncertainty as to just what offences carried the penalty of 6 months imprisonment. But I am satisfied that the magistrate intended the 6 months imprisonment to attach to that count alone, and if the electronic record is incorrect, then it should be corrected.
With respect to the charge of driving in a manner dangerous, the magistrate imposed a $300 fine and a five-year licence disqualification.
On all of the other charges, the magistrate convicted the appellant without penalty.
I have had the benefit of an affidavit from the police prosecutor which sets out the submissions which he made. I have also had the benefit of an affidavit from Ms O’Leary of counsel who appeared on the appellant’s behalf both in the court below and before me on the hearing of the appeal.
The facts which were alleged as to the various offences may be summarised as follows.
As for the counts on the information, on the day in question at about 2.50 am, a police patrol car followed a Nissan Pintara driven by the appellant and before stopping it ascertained that it was unregistered and uninsured.
When the police signalled for the appellant to stop, he did not do so but made a turn into another road, and made off at speeds of up to 80 kilometres per hour.
The appellant eventually turned into a dead-end street, with the police vehicle following. When the police vehicle was about five metres behind the appellant’s vehicle, he reversed his vehicle directly into the police car. While doing so he was seen to be looking over his right shoulder directly at a police officer.
Although there appears to have been no contact between the two vehicles, the appellant’s plea of guilty to that count must be taken to mean that the appellant drove at the police vehicle, and was not simply making a manoeuvre preparatory to making a turn.
At all events, the appellant made off again and again the police timed him at speeds of up to 80 kilometres an hour. During the course of this passage of driving, the appellant failed to give way to on-coming traffic, disobeyed a give-way sign, and after crossing two roundabouts he failed to negotiate a third one, with the result that he lost control of his vehicle and hit a light post, damaging it and rendering it undriveable. Police then surrounded him and the appellant was arrested. It turned out that he did not have a current South Australian driver’s licence.
As for the charges which proceeded by way of complaint, on 23 July 2002 the appellant drove a vehicle which was unregistered. The appellant apparently told the police that he knew it was unregistered and that he was driving in order to get to hospital to see a sick nephew.
As for driving at a speed and in a manner dangerous and associated charges relating to an act of driving on 6 October 2002, the appellant was chased by police, maintaining a high speed around suburban streets.
The police yelled at him at one stage when he slowed down but his response was to make off again at a high speed. He passed through residential streets lined with vehicles. There were numerous people outside their houses including children.
When he was finally apprehended it appeared that his vehicle was in poor condition and the rear tyres were bald. The appellant stated when apprehended that he did not have a licence and was an “idiot” for not stopping.
He said all he wanted to do was to drive to his sister’s house.
As for the third complaint, on 23 November 2002, on police officers noticing the poor condition of his vehicle, the appellant was stopped again. The vehicle was found to be unregistered, uninsured and under a defect notice.
The appellant said that he had to drive, notwithstanding the defect notice because he “had to get around”. He said he had a multitude of reasons for driving on that day, despite the fact that it was unregistered and uninsured, but he did not wish to share those reasons with the police.
As to the fourth complaint relating to breach of bail, it appears that the appellant entered into a home detention bail agreement on 13 December 2002. On 31 December he obtained permission to travel by bus to Adelaide. He was to be home by 9.30 pm but in fact did not get home until 2.11 am.
His explanation is that while towing his car, his friend’s car had broken down, and he had lost a lot of time before getting somebody to drive him home.
In his sentencing remarks, the sentencing magistrate described the appellant as having “a horrific” history of driving offences and not only related to the period “that is referred to when he had emotional problems”. Some of the offences with which he is charged, as the magistrate commented, “are extremely serious and very much to the higher end of the scale”.
The magistrate clearly considered the act of driving at the police car as the most serious of the offences and commented that the act placed police lives in peril. He stated that a period of imprisonment was appropriate and proceeded to impose the sentence of 6 months imprisonment to which I have referred.
Ms O’Leary has said everything which can be said in favour of the appellant. She submitted that, apart from a time when the appellant’s life “fell apart”, to use her words, when a relationship failed, he did not have an extensive record of offending, and she challenged the use by the magistrate of the word “horrific”.
Mr O’Leary also gave an explanation of an earlier incident when it was suggested that he had been beaten up by the police, that this could account for his fear of them and why he did not stop when chased on the occasions to which I have referred.
She gave an explanation of other personal circumstances which, she suggested, had been put to the magistrate, and she submitted that the magistrate had not taken them into account.
Ms O’Leary submitted that those circumstances should have led the magistrate to suspend the penalty of imprisonment.
The magistrate specifically referred to the fact that he took the submissions in mitigation into account and those concerning the defendant’s personal circumstances. As I have said, he referred to the period when the appellant apparently had emotional problems.
Although the sentencing remarks are short, they were made ex tempore following submissions from defence counsel and from the prosecutor. There is no reason to suppose that the magistrate did not take into account all of the matters which had been put to him.
Although the word “horrific” may be too strong a word to use, it is clear that the appellant has a very bad driving record. The seriousness of it is emphasised by reference to some features to which Ms Downey, who appeared for the respondent, drew my attention to this morning.
They were that on 3 April 2001 the appellant had entered into a bond for 18 months to be of good behaviour. The offences which were committed both on 23 July 2002 and 25 August 2002 were all committed at a time when the bond was still current.
Furthermore, the appellant was subjected to three periods of 28 days licence disqualification by separate orders announced on 16 August 2001. He drove in defiance of those orders no less than ten days later when the offence was committed on 20 August.
In my view, the appellant’s driving record, together with the very serious circumstances of the offending which brought him into the court and from which the appeal is now brought, suggest that the appellant has consistently shown a complete disregard of the traffic laws and of orders of the courts which have been made in response to his offences.
I have carefully considered the submissions which have been made, but I cannot see that the appellant has demonstrated any error on the part of the sentencing magistrate.
In my opinion, there is simply no case made out to interfere with the period of imprisonment which was imposed and the appeal is dismissed.
In so far as the sentencing magistrate may have been acting, or purporting to act, under s 18A of the Criminal Law (Sentencing) Act 1988 by grouping the offences of 25 August 2002 together with respect to the sentence of six months imprisonment, I would allow the appeal for the limited purpose of restructuring the order, so that the sentence of imprisonment clearly attaches to the first count on the information, that is, the charge of driving at another vehicle knowing that the act was likely to cause harm to another. There should be a conviction without penalty on the remaining counts of that information and the other charges, save for the charge upon which the appellant was fined $300 and given a five-year licence disqualification. Subject to those matters, the appeal is dismissed.
The appellant is apparently on home detention bail pending the hearing of the appeal.
I direct that the appellant present himself to the Magistrates Court on or before Friday 8 August 2003 for the purpose of carrying into effect the order which I have just made.

[2003] SASC 245

4 August 2003