Johns v Police - [1998] SASC 6729

JOHNS V POLICE

Magistrates Appeal

LANDER J

The appellant was charged and pleaded guilty to driving whilst disqualified from holding or obtaining a licence. The offence occurred on 6 October 1997.

The appellant had been disqualified from holding or obtaining a licence for a period of three months from 17 September 1997 to 16 December 1997 for incurring more than twelve demerit points (s98BC of the Motor Vehicles Act 1959).

On 16 April 1998 he was sentenced to seven days imprisonment. Further, he was disqualified from holding or obtaining a driver’s licence for a period of three months. On the same day he appealed to this Court and was granted bail.

There is no doubt that the appellant did receive notice that he was disqualified from holding or obtaining a driver’s licence.

I am told, as was the Magistrate, that he complied with the notice until the day of the offence. He made arrangements in his employment for an apprentice to be available to drive him to and from places at which he had to work.

An eighteen year old friend drove the appellant and his two sons to Port Pirie for a BMX race meeting. That was by previous arrangement and consistent with his recognition that he was disqualified from driving. They remained at Port Pirie for three days. The young man won a BMX race, celebrated and drank alcohol to excess. The appellant drove the young man and two children back from Port Pirie and in the course of the trip was detected driving at 128 kilometres per hour in a 110 kilometres per hour zone. He told the Police he had a licence but when he arrived home he went to the Holden Hill Police Station and confessed that his licence had been disqualified.

The appellant, who was born in England, but has lived in Australia for twenty-six years, is aged forty-two years. He was divorced from his wife eighteen months ago. They have three children: a daughter aged fifteen, a son aged fourteen and another son aged nine years. His daughter and fourteen year old son live with him. The appellant is involved with his sons in BMX racing. His sons have achieved some success in that sport. The appellant is a member of the Committee of the Club for which the boys race.

The appellant’s father died on 19 February 1998 and he has experienced some depression since that time.

The appellant has always been in employment. He is a qualified television video technician. For the past four years the appellant has been employed as an alarm technician by K & L Electrical and Security. He takes home $833 per fortnight. He has a significant commitment on his home loan for which he pays $520 per fortnight. He pays $130 per month child support for his younger son.

Traffic offences aside, the appellant is a first offender.

Whilst the appellant consciously drove the motor vehicle in the circumstances described he does not appear at first…

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 Johns v Police

Details

AGLC: Johns v Police [1998] SASC 6729
Case: [1998] SASC 6729
Decision Date: 1 Jan 1998

CaseChat Overview and Summary

The appellant in Johns v Police was convicted of driving while disqualified from holding or obtaining a driver's licence. The offence occurred on 6 October 1997, with the appellant having been disqualified from 17 September to 16 December 1997 due to accumulating more than twelve demerit points. He was sentenced to seven days imprisonment and disqualified from holding or obtaining a driver's licence for a further three months. The appellant appealed to the Magistrates Appeal Court, arguing that his conduct was not contumacious and that the Magistrate erred in not suspending the sentence of imprisonment.

The legal issue before the court was whether the Magistrate had correctly exercised his sentencing discretion by imposing a sentence of imprisonment without suspending it. The respondent argued that the appellant's conduct was contumacious, citing cases that suggested imprisonment should be reserved for such conduct. The appellant, however, contended that his behaviour did not indicate contumacy and that the Magistrate did not adequately explain why he chose not to suspend the sentence.

The court considered the definition of contumacious conduct, which involves a total disregard of the disqualification and disobedience to the authority imposing it. The court noted that while all offenders show some level of disregard, only those who exhibit total disregard and defiance should receive immediate imprisonment. The court disagreed with the respondent's interpretation, finding that the remarks in Police v Cadd did not add words to the legislation or create a new test for imprisonment. Instead, the court held that the test for contumacy must focus on the offender's attitude rather than merely the distance driven or the circumstances of the offence.

In this case, the court found that the appellant's conduct did not indicate contumacy. He had made arrangements to avoid driving, suggesting obedience to the disqualification order. His decision to drive after his friend became incapacitated did not reflect defiance but rather an unforeseen circumstance. Given the appellant's financial situation and the impact on his dependents, the court concluded that a fine was inappropriate, and imprisonment was not warranted. Instead, the court substituted the sentence of imprisonment with an order for the appellant to perform 60 hours of community service within twelve months.

Orders