LENNON v Police - [2005] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LENNON v POLICE
Judgment of The Honourable Justice Anderson
21 January 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appellant convicted of driving whilst disqualified, driving with the prescribed concentration of alcohol present in his blood, and speeding - the learned sentencing Magistrate found, in relation to the offence of driving whilst disqualifed, that the appellant's offending was 'contumacious' and imposed a sentence of imprisonment of six weeks - appeal against sentence of imprisonment - respondent conceded that if the offending was not contumacious then imprisonment was not justified - circumstances of the offending were that the appellant had driven from Port Augusta to Port Pirie in his grandmother's car - while in Port Pirie the appellant consumed alcohol, believing that his girlfriend would be driving back to Port Augusta - there was an argument between the appellant and his girlfriend that resulted in her leaving - the appellant then received a telephone call from his grandmother who was ill and needed the car returned to her - Magistrate found that there was not a genuine medical emergency - held: Magistrate misdirected himself in relation to whether the offending was 'contumacious' - appeal allowed.
Motor Vehicles Act 1959 (SA) s91; Road Traffic Act 1961 (SA) s47A, s47B, referred to.
White v Police [2000] SASC 127, applied.
Police v Cadd (1997) 69 SASR 150; Rhodes v Police [1999] SASC 191, discussed.

LENNON v POLICE
[2005] SASC 11
Magistrates Appeal

ANDERSON J In this matter the appellant appeals against a sentence of imprisonment imposed by a Magistrate when the appellant was convicted of driving whilst disqualified and driving with excessive alcohol in his blood.
The first count against the appellant was driving whilst disqualified from holding a licence contrary to s91 of the Motor Vehicles Act 1959 (SA).
The second count was driving whilst there was present in his blood more than the prescribed concentration of alcohol contrary to ss47A and 47B of the Road Traffic Act 1961 (SA). The actual concentration was 0.154 grams in 100 millilitres of blood.
The third count was that the appellant drove the motor vehicle on National Highway 1 at a speed of 135 kph in a 110 kph zone.
At the time of the offences, the appellant had been disqualified for forty-two months for driving with excessive alcohol some months beforehand.
The circumstances of the offending were that the appellant and his girlfriend had borrowed his grandmother’s vehicle from Port Augusta and attended at Port Pirie. When they were at Port Pirie the appellant consumed alcohol in the belief that his girlfriend would be driving back to Port Augusta. There was an argument between the appellant and his girlfriend which resulted in her leaving.
The appellant then said he received a phone call from his grandmother who was ill and who needed the car returned to her. The appellant was in a close relationship with his grandmother. He resided with her and acted as her fulltime carer because of her ongoing medical condition.
There was a dispute as to whether the phone call was a medical emergency. The learned Magistrate found that it was not such an emergency.
In relation to the offence of driving whilst disqualified, the Magistrate convicted the appellant and sentenced him to imprisonment for a period of six weeks. In relation to the offence of driving whilst there was present in his blood more than the prescribed concentration of alcohol, the Magistrate convicted the appellant, fined him $1,200 and disqualified him from holding or obtaining a driver’s licence for a period of three years. In relation to the excess speed, he convicted the appellant without further penalty.
The appellant’s complaints are that if it was appropriate to imprison the appellant then the term of imprisonment should have been suspended, and in the alternative, that the sentence of six weeks imprisonment was manifestly excessive.
At the time he was sentenced, the appellant was twenty-nine years of age. Prior to being sentenced, he had been told that he had gained a position working for a construction company in the Northern Territory. I am told that this job is still open to the appellant. Other relevant factors, in my view, are that this was a first offence, it was not part of any pattern of driving, and was an impulsive and not premeditated act of driving.
The learned Magistrate considered whether the offending by the appellant was contumacious. He said in his sentencing remarks at [1]:
“It is not an easy word to get your mind around but basically it means whether you have deliberately committed this offence. If I am satisfied that the answer to that question is “no” then imprisonment is not something that I ordinarily think about. However, if the answer to the question is “yes”, then I have to consider whether or not your facts and circumstances and the facts and circumstances of the particular matter require an order for imprisonment and then I have got to give consideration to the issue of suspension.”
In Police v Cadd (1997) 69 SASR 150, Mullighan J at 179 referred to the word ‘contumacious’. His Honour said:
“It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it.”
The appellant complains that the Magistrate’s direction to himself regarding the meaning of the term contumacious was inappropriate and not sufficiently detailed having regard to the previous decisions on this matter.
I was referred to various cases in which contumacious offending has been discussed.
In White v Police [2000] SASC 127, Mullighan J was dealing with a driver who told the police that he had consumed one or two drinks with friends, but that he had driven because he and his friends wanted to get some breakfast and he was in a better condition than his friends. They went to a McDonalds restaurant less than a kilometre away. The learned Judge says at [8]:
“He gave no thought to the licence disqualification. He acknowledged that his driving was stupid and it was submitted that he would not have done so if he had been sober.”
Further in his reasons, his Honour said at [15]:
“I do not think imprisonment was justified for the offence of driving disqualified. It was put to the learned Magistrate in the course of submissions that the appellant gave no thought to the licence disqualification. The learned Magistrate did not reject that submission. He did not find that the offending was contumacious … I do not think it was contumacious. It was foolish and unthinking. It was not defiant or intentionally disobedient.”
A different case again was Rhodes v Police [1999] SASC 191, a decision of Nyland J, when the appellant drove whilst disqualified to pick up a computer which the appellant thought his wife needed urgently. Her Honour said at [14]:
“In the present case, there is no doubt that the appellant’s decision to drive was wilful. Objectively it could not be described as occurring in a situation of emergency or duress. Subjectively, however, it is clear that the appellant was significantly influenced by what he perceived to be the urgency of the situation which led him to make his acknowledged foolish decision to drive. I do not believe, however, that the appellant’s conduct amounted to an attitude of defiance in the face of a court order which would amount to contumacy.”
The Magistrate specifically found in this matter that there was no medical emergency, but he did not address himself to a submission which had been made regarding the events, which I have set out earlier, causing the change of driver from the plans originally held by the appellant and his girlfriend. The fact that he has not mentioned this aspect tends to support that he accepted that version of events about the need to change plans. If he did accept that submission then he has not placed any or sufficient importance upon it.
Having regard to the reasoning in the decisions set out above, it is my view that the Magistrate misdirected himself in relation to the question he had to consider, namely, whether the offending was contumacious. In my view, on the basis of the tests enunciated in the cases, the conduct of the appellant was not contumacious. It was not simply a case of whether the offence was committed deliberately as the Magistrate said.
To use the words of Mullighan J in White at [15], in my view, the conduct of the appellant, “… was foolish and unthinking. It was not defiant or intentionally disobedient”.
The learned Magistrate sentenced the appellant to six weeks imprisonment following his finding that the conduct of the appellant was contumacious. It is conceded by the Crown that if the conduct was not contumacious then a sentence of imprisonment was not justified. In the circumstances, I would substitute a fine of $500 on count 1.
In relation to count 2, the learned Magistrate recorded a conviction and fined the appellant $1,200 and disqualified him from driving for a period of three years. I would not alter that.
Likewise, I would not alter what the Magistrate did in relation to count 3, namely, recording a conviction with no further penalty.
I was informed that prior to being released on bail, the appellant spent four days in custody. I have taken that into account in fixing the fine.
I therefore allow the appeal and quash the sentence of imprisonment, and impose a fine in lieu thereof of $500. The total fine therefore will be $1,700.