Kevin Grayhame Hooper v SA Police No. 4169 Judgment No. SCGRG 93/1399 Number of Pages 7 Traffic Offences

[1993] SASC 4169

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Traffic offences - driving under the influence - appeal from licence disgualifications, each of four years, imposed by Magistrate on separate driving under the influences charges committed three days apart, each involving a high blood-alcohol level, and the appellant driving at the time on a probationary licence - held that the total suspension of eight years, while severe, was not manifestly excessive.
Family law - restraint orders - Appellant placed under restraint order with respect to his wife and children pursuant to s.99a of the Summary Procedure Act - admitted breach four months later by driving a truck into the front of his wife's house property and then, a month later again, a further breach when appellant made a death threat in a phone call to his wife - held that two sentences, each of two months' imprisonment, not manifestly excessive, but that the Magistrate erred in ordering that they be served cumulatively - appeal allowed and sentences ordered to be served concurrently.

HRNG ADELAIDE, 8 September 1993 #DATE 8:9:1993
Counsel for appellant:     Mr G. Britton
Solicitors for appellant:    P.F. Hall and Co
Counsel for respondent:     Ms H. Nichols
Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal allowed in part.

JUDGE1 PERRY J The appellant appeals to this court against sentences imposed upon him in the Tanunda Magistrates Court sitting at Clare on 12 July 1993. 2. On that occasion the appellant pleaded guilty to a number of charges. Taking them chronologically, with reference to the dates of offending alleged in each charge, he pleaded guilty to having on 19 December 1992 at Clare driven with an excessive blood alcohol concentration, the level of blood alcohol being .350 per cent; and, on the same day, driving in breach of a condition imposed pursuant to s.81a of the Motor Vehicles Act. 3. As well, he pleaded guilty to a separate charge of driving with excessive blood alcohol, namely that on 22 December 1992 at Finniss Point, he drove whilst there was present in his blood a blood alcohol level of .276 per cent, and on the same day driving in breach of a condition under s.81a of the MotorVehicles Act. 4. He was further charged, and pleaded guilty to having on 20 February 1993 failed to comply with the terms of a restraint order which had been imposed on him under s.99 of the Summary Procedure Act on 26 October 1992. 5. He pleaded guilty to two separate counts of wilful damage under s.85 of the Criminal Law Consolidation Act which occurred on the same occasion as the breach of the restraint order. In the first of the wilful damage counts the subject of the damage were two pot plants, the property of his wife, and in the second of those counts an E and WS Department post. 6. He was further charged and pleaded guilty to having committed a further breach of the restraint order imposed on 26 October 1992, by threatening to kill his wife and children. That threat was communicated in the course of a telephone call on 18 March 1993. 7. Finally, he appeals against the order of the Magistrate pursuant to which a suspended sentence of three months imprisonment imposed on 23 October 1992 was revoked. 8. After revoking the three months term of imprisonment which had been suspended, the learned sentencing Magistrate imposed two terms of imprisonment, each of two months, with respect to the breaches of the restraint orders which were committed on 20 February and 18 March 1993, those two periods of two months imprisonment being cumulative both upon each other and upon the three months term of imprisonment the suspension of which was revoked. That gave rise to a total of seven months imprisonment. 9. On each of the two counts of wilful damage, the learned sentencing Magistrate ordered a term of 14 days imprisonment, but in each case directed that the two terms of imprisonment be served concurrently, which I have taken to mean concurrently not only with each other but with the seven months term of imprisonment. In the result the overall term of imprisonment which was imposed remained seven months. 10. With respect to the two admitted charges of driving with an excess of blood alcohol concentration, the learned Magistrate imposed a fine with of $1,500 respect to the offence committed on 19 December 1992 and on that count imposed a licence disqualification of four years, operative forthwith. On the second of those counts, that is, the offence committed on 22 December 1992, the learned sentencing Magistrate imposed a fine of $1,800 and a further licence disqualification for a period of four years, giving a total licence disqualification of eight years. 11. On each of the s.81a counts, the learned Magistrate registered a conviction without penalty. 12. The appellant is a 40 year old married man with four children who follows the occupation of a bee keeper. He has had the misfortune to have experienced some problems with his relationship with his wife, which have resulted in several separations which occurred from about the late 1980s until the time of this offending. He also has a problem with respect to his drinking. It is clear from the material which was before the learned Magistrate that this problem was severe and could be appropriately classified as rendering him unable to control that habit in any sensible fashion. 13. His history before this offending included an attempted suicide in July 1992 which followed a failed attempt to reconcile with his wife. 14. Matters came to a head for present purposes on 15 October 1992 when a restraint order was made against him pursuant to s.99a of the Summary Procedure Act in the Tanunda Magistrates Court. It was his breach of that order very soon afterwards which resulted in him being convicted on 23 October 1992 in the same court of a failure to comply with the order, and it was then the term of three months imprisonment was imposed, which was suspended upon his entering into a bond to be of good behaviour for three years. 15. It was not long after that that he committed the two drink driving offences in December 1992. 16. The learned Magistrate was informed by the assistant police prosecutor in the Court below that with respect to the offence which occurred on 19 December 1992 the defendant was apprehended whilst driving a Hino truck on Torrens Road at Riverton. He had previously been observed by police officers who formed the impression that his ability to drive was impaired. 17. When apprehended he admitted driving from the Riverton Hotel to his flat in Mills Street. He became angry and vocal, and the police officers detected a strong smell of liquor about him. A subsequent breath analysis resulted in a reading of .350 per cent. 18. At the time the appellant was driving on a probationary HT licence, no doubt as a consequence of an earlier period of disqualification imposed on 19 October 1990, also in respect of a drink driving charge. The consequence of that, of course, was that it was incumbent on the appellant not to have any alcohol at all in his blood whilst driving. 19. As to the offence committed on 22 December 1992, the police were informed by a member of the public that the appellant was in the Tarlee Hotel and likely to drive to Riverton in a state which was said to be one of intoxication. 20. As a result of that, police attended and observed the appellant driving the Hino truck north on the Tarlee to Finniss Point Road. When apprehended the defendant again displayed a very strong smell of liquor, and a subsequent breath analysis test gave a reading of the level to which I have referred, that is, .276 per cent. 21. The offences which occurred on 20 February 1993 were committed by the appellant while again using his Hino truck. The learned Magistrate was informed that the appellant was seen by his wife to mount the footpath outside of her premises and drive past the front of her house, half on the premises and on the footpath. The truck knocked over two pot plants growing in cut down barrels and her letter box. An E and WS marker post on the footpath was also knocked over. 22. Subsequently, when apprehended, or at least questioned about the matter, the appellant made full admissions. He said that he had lost his cool "and wanted to see his kids". He asserted that the property he had damaged was "his anyway" and that he had paid for them. He asserted that he had not breached the restraint order because he had "not set foot in the place". 23. As to the further breach of the restraining order which occurred on 28 March 1993, the Magistrate was informed that the appellant had rung his wife at about 6 pm on that day and said, "I'm going to kill you and kill myself and the kids will be orphans and they will be better off". His wife gave a statement to the police in which she indicated that she thought the defendant would carry out the threat. When he was questioned soon afterwards, the appellant said that he did say he was going to kill himself and his wife, but it was only a bluff. 24. Mr Britton, who appeared for the appellant, said everything which could be said in support the appeals. One cannot help but feel some sympathy for the appellant in that, as Mr Britton submitted during the course of his presentation of the appeals, the appellant has suffered very much from the consequences of the breakdown of his relationship with his wife and his related alcohol problem. 25. The learned Magistrate was assisted in his consideration of the matter by a pre-sentence report and also by a very considered report of Dr Tottman, psychiatrist. The latter concluded from his examination of the appellant that the appellant had what he described as significant problems stemming from personality difficulties, that circumstances had occurred which had increased his anxiety and caused him to take solace in alcohol. This lead to a state of alcoholism over which, in the opinion of Mr Tottman, the appellant had very little control. Mr Tottman described what he called a vicious circle, in that the appellant takes alcohol to relieve his feelings, but it inevitably causes further problems. 26. Mr Britton emphasised the fact that it was incumbent upon the learned Magistrate to sentence against the background of the total situation in which the appellant was placed by a course of circumstances throughout the last year and the early part of this year. He emphasised further that prison terms should have been imposed only as a last resort, and that the personal circumstances and situation of the appellant were such that the sentences were manifestly excessive. In particular he contended that the imposition of a four year disqualifications on each of the blood alcohol offences was excessive. 27. As to the revocation of the three month suspended sentence, he submitted that the learned Magistrate should have exercised his power either to refrain from revoking the suspension or to ameliorate the sentence, the suspension of which was revoked. 28. He submitted that the sentences of two months imprisonment imposed on each of the breaches of the restraining order were manifestly excessive and did not reflect a proper consideration of the appellant's circumstances and the history of the various matters which led up to them. In any event, he submitted that they should not have been made cumulative. 29. As to the two counts of wilful damage, Mr Britton submitted that the sentences of 14 days imprisonment on each were manifestly excessive and were disproportionate to the relatively minor nature of the offences and the relatively trivial extent of the damage which was caused in each instance. 30. He put that the effect of the totality of the sentences was to have a disproportionate impact upon the appellant's ability to conduct his business as a bee keeper, and that the sentences failed to reflect due consideration of the tensions under which the appellant was labouring at the relevant time, having regard to the state of his matrimonial affairs. 31. The learned Magistrate, during the course of his remarks on sentence and after referring to the history of the matter said:
    "I acknowledge the strength of Mr Hall's submissions that
    your being before the Court is not as a result of long term
    anti-social behavioural traits, but as a result of depression
    and alcohol consumption caused or contributed to by matters in
    your family life, and that you have taken significant steps
    towards rehabilitation, but it would be a mockery of the
    sentencing process if you were to receive anything other than
    immediate imprisonment for offences which break a suspended
    sentence bond imposed for an identical offence. Offenders must
    learn that a suspended sentence means what it says - the
    efficacy of the suspended sentence is lost if it is otherwise.
    In fixing the term I, nevertheless, give you credit for the
    steps you have taken and your plea of guilty and impose a
    sentence which hopefully should not be detrimental to your
continued rehabilitation." 32. It may be that the expression "mockery of the sentencing process" was pitching the matter too high, but I think the learned Magistrate was entitled to take into account that the breaches of the bond, the entry into which gave rise to the suspension of the sentence of three years imprisonment imposed in October 1992, were constituted by the same kind of offending which gave rise to the imposition of the sentence of imprisonment in the first place. 33. Whatever the difficulties which the appellant was experiencing at the time with respect to his matrimonial relationship, he had clearly failed to appreciate the very firm obligations which were imposed upon him by reason of the restraint order to keep his distance from his wife. 34. As to the two blood alcohol offences, it appears to me that they were, of their kind, serious. It was a circumstance of aggravation that they were committed at a time when, having regard to the probationary licence pursuant to which the appellant drove, he was obliged to drive with a zero blood alcohol level. 35. I have carefully considered all of the matters put to me by Mr Britton in his very helpful submissions. I take heed of the authorities to which he referred, which it is unnecessary for me to go into now. I accept the principle which he drew from the authorities that a sentence of imprisonment is a sentence of last resort, that the sentencing court should always carefully consider the possibility of suspending a sentence of imprisonment, that the punishment must be proportionate to the degree of offending, the appellant's personal circumstances must be given full weight to and the prospect of rehabilitation must be kept in mind at all times. 36. As to rehabilitation, I accept that the appellant has made some progress, indeed, perhaps significant progress, in that he has attended a detoxification institution conducted by the Salvation Army during the time that he has been on bail pending the hearing of the appeal, and it appears that he has made considerable progress in freeing himself from his alcoholism. 37. Be that as it may, the essential question for this Court is whether or not it has been demonstrated by the appellant that the sentences were manifestly excessive. 38. I have regard to the totality principle emphasised by Mr Britton, and I have endeavoured to assess whether it might be fairly said that the total sentence was, in the result, disproportionate to the totality of the offending. 39. I have reached the conclusion that no ground has been demonstrated upon which it would be proper to interfere with the sentences, except, to the extent that, the action of the learned Magistrate in making the two terms of two months imprisonment cumulative has given rise, in my opinion, to an overall sentence which is, when taken in consideration with the revocation of the suspension of the earlier three month term of imprisonment, unduly harsh. 40. In all the circumstances, I have reached the view that it would be proper to vary the sentencing package so that the two two-month terms of imprisonment should be made concurrent. Otherwise, in my opinion, the appellant has not demonstrated that the sentences were excessive. 41. It is true that eight years suspension of licence, in all, is a heavy penalty. But the two drink driving offences were of a serious kind. They occurred not long after an earlier offence of the same kind upon which the appellant was punished in November 1990. And, as I have said, their seriousness was aggravated by reason of the condition imposed upon the appellant's licence pursuant to s.81(a) of the Motor Vehicles Act. 42. In the result, the appeal will be allowed for the purposes of varying the order appealed from to the extent that in lieu of the order that the two two-months terms of imprisonment be served cumulatively, there be substituted an order that they be served concurrently. 43. The order that the two 14-day terms of imprisonment be served concurrently will not, of course, be disturbed. In the result, the overall total of seven months imprisonment will be reduced to five. 44. In all other respects, the sentences and order imposed by the learned sentencing Magistrate will remain. 45. I order that the matter be referred back to the Magistrate's Court so that an appropriate order may be made with respect to the bail which the appellant enjoys at the moment.