LONG v POLICE No. SCGRG-98-1501 Judgment No. S6997

LONG v POLICE
[1998] SASC 6997

Magistrates Appeals: Criminal

MULLIGHAN J This is an appeal against the sentence imposed by the learned Magistrate on 22nd October 1998 at the Magistrates Court at Elizabeth upon the appellant having been convicted of driving a motor vehicle on 29th May 1998 whilst disqualified from holding or obtaining a licence to drive a motor vehicle, contrary to s91 of the Motor Vehicles Act 1959.
The appellant was also charged with driving a motor vehicle on the same occasion whilst there was present in his blood the prescribed concentration of alcohol as defined in s47a of the Road Traffic Act 1961, contrary to s47b of the Act and with driving a motor vehicle without due care contrary to s45 of that Act. His level of alcohol was 0.174 grams in a hundred millilitres of blood. He pleaded guilty to all three charges which all arose out of the same incident of driving and did so at an early opportunity. On the charge of driving with the prescribed concentration of alcohol in the blood, he was fined $1,500 with fees, and a levy amounting to $128. This was a second offence as defined in s47b. The maximum penalty in those circumstances was $2,000. On the charge of driving without due care, he was fined $500 with another levy of $28. The maximum fine under s45 is $1,000. On the charge of driving whilst disqualified, he was sentenced to imprisonment for a period of six weeks and ordered to pay another levy of $28. The appellant was allowed 10 months to pay these fines and other amounts.
As the drink driving offence was a second offence committed within three years, the learned Magistrate was obliged to order, pursuant to s47j of the Road Traffic Act, that the appellant attend an assessment clinic in order to determine whether he suffers from alcoholism or addiction to other drugs, or both. The appellant complied with the order and a report was received from the Driver Assessment Clinic of the Drug and Alcohol Services Council to the effect that the appellant does suffer from alcoholism in that he has a compulsive habit of drinking liquor in quantities likely to produce a blood alcohol level of 0.08 or more. Pursuant to s47j, the learned Magistrate had no option but to disqualify the appellant from holding or obtaining a licence to drive a motor vehicle until further order. There is no appeal against any aspect of the sentences apart from the sentence of imprisonment.
The offences occurred at about 4.50 pm at Maguire Crescent, Burton. The appellant drove his motor vehicle a short distance along that street when he lost control and collided with a tree. With the assistance of other men in the street, he moved the vehicle on to the street and drove it a short distance to his house which was three houses away. In all, his driving was for about 500 metres. Police attended the scene and at his house. They required him to submit to an alco test and then later a breath analysis. At the time they attended the home of the appellant, the police noticed about six adults and three or four children in the vicinity and considerable pedestrian traffic in the street. The appellant told the police that he had driven his vehicle at the time of the accident and that he was driving around a corner into Maguire Crescent when his brakes failed momentarily. He pumped the brakes and they locked which caused the vehicle to spin and slide into the tree. He said that he was only travelling at about 10 to 15 km/h. The police put to him that he was driving much faster as had apparently been reported to them by neighbours. The appellant denied this allegation and told the police that the people down the road had always had it in for him.
The appellant has a previous conviction for the offence of driving whilst disqualified from holding or obtaining a licence to drive a motor vehicle. When he was aged about 17 years, his licence was disqualified by the Registrar of Motor Vehicles by reason of his being in breach of a condition of his probationary licence. On 7th December 1994, he drove a motor vehicle in breach of that order of disqualification and was convicted by the Youth Court sitting at Elizabeth on 10th February 1995 of driving a motor vehicle whilst disqualified and was sentenced to perform 64 hours of community service within four months.
The learned Magistrate was informed that on 20th September 1997 the appellant was convicted of driving a motor vehicle with the prescribed concentration of alcohol in the blood. He was fined and his licence to drive a motor vehicle was disqualified for twelve months. It seems that the learned Magistrate was not informed of the amount of the fine.
I was informed that on 3rd December 1997 the appellant was convicted of the driving offences of speeding and failing to keep to the left which had been committed on 20th September 1997. He was fined $85 and disqualified from holding or obtaining a licence to drive a motor vehicle for a period of twelve months. I doubt that this information is correct. The date of these offences is said to be the same day as the conviction for the offence of driving with the prescribed concentration of alcohol in the blood. I think the true position is that all of these offences occurred on the same day, 20th September 1997, and were dealt with on 3rd December 1997 and the licence disqualification was imposed upon the conviction of the offence of driving with the prescribed concentration of alcohol in the blood. That seems to be the basis of sentencing accepted by the learned Magistrate. It may be seen that the offences, the subject of this appeal, were committed nearly six months later.
Counsel for the appellant before the learned Magistrate made apparently extensive submissions and there is no contest on this appeal about the factual matters raised in those submissions. The appellant is aged 21 years. He left school at the age of 15 years and has since been in employment most of the time. He lives with his mother and was at home before the subject driving incident. During the afternoon he consumed about half a carton of beer. A friend arrived and they arranged to go to the home of another friend. They went in the appellant’s vehicle but the friend was the driver. A short distance from the appellant’s home he and his friend had an argument and the friend left the vehicle and departed on foot. There was expensive stereo equipment in the vehicle. For that reason the appellant was concerned about leaving his vehicle in the street because this equipment might be stolen and consequently he drove the vehicle to his home. During this short journey the accident occurred and he maintains that he told the truth to the police.
The appellant had a relationship with a young woman for some years and they have a two year old daughter. Not long before these offences were committed on 20th September 1997, the relationship broke down which had a considerable effect upon the appellant and is a cause of his excessive drinking. The appellant acknowledged that he has a problem with alcohol. The learned Magistrate was informed that he wanted help for his condition and that he had the support of his mother.
It was specifically put to the learned Magistrate that the offending of the appellant in driving whilst disqualified was not contumacious. It was submitted that leniency should be extended in all of the circumstances and that any sentence of imprisonment should be suspended.
The remarks on penalty of the learned Magistrate are brief and are as follows:
“I take all those matters put by counsel on your behalf into account in imposing penalty on you. I regard the offending as quite serious - you were driving under the very circumstances the Court sought to protect the public from by imposing a disqualification, namely, drink driving. It was committed only five months into that disqualification. You have a previous offence of driving under disqualification. This offence was committed during mid afternoon when one might expect other people to be about so therefore in a position to be affected by your offending.
I regard immediate imprisonment as the only appropriate penalty. I give you credit for your plea of guilty.
Count 1.... Convicted Fine $1,500 (as for a second offence), Costs $84
Levy $28, Prosecution $16.
ORDER:... Defendant disqualified from holding or obtaining a driver’s licence until further notice.
Driver warned.
Count 2.... Convicted Imprisoned six months forthwith. Levy $28.
Count 3Convicted Fine $500, Levy $28.
Time to pay fines and costs 10 months.”
The grounds of appeal complain that the sentence of imprisonment is manifestly excessive and it should have been suspended.
The penalty for a second or subsequent offence of driving whilst disqualified is imprisonment for two years: s91(5) of the Motor Vehicles Act 1959.
It may be seen from his remarks on penalty that the learned Magistrate took a very serious view of the matter. It seems that he regarded the fact that the appellant committed the offence with an excess blood alcohol level and that the disqualification had been in existence for five months as matters of aggravation. It seems that he also regarded the manner and time of driving as matters of aggravation.
It seems clear that the learned Magistrate did not consider whether the conduct of the appellant in committing the offence of driving disqualified was contumacious: Police v Cadd & Ors (1997) 69 SASR 150. In that case the common denominator of a majority of members of the Court was:
“.... the punishment should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment ...”: see p171.

No sentencing standard was established for contumacious offending as to the length of the sentence or whether it should be suspended and, if so, in what circumstances.

In the circumstances of the present case, I do not think it is necessary to consider further the meaning of contumacious in this context. I thought it had been made plain in Cadd but other members of this Court in subsequent decisions have not thought so. In Bates v Police (1997) 70 SASR 66 Perry J took the view that the element of “defiance” was necessary and concluded that the matter may be determined by the extent of, and the reasons for, the driving. Olsson J in Valentincic v Police (unreported, Olsson J, 4 December 1997 Judg No S6477) declined to embark upon a discussion of what is meant by “contumacious” but added that what was required was whether there had been a:
“... flagrant and wilful disobedience of an order of suspension in the sense that a person drives a motor vehicle in circumstances which are more than trivial, and which involve a knowing and, in a sense, defiant breach of any order of disqualification or any statutory provision.”

In Wood v Police (unreported, 28th January 1998, Judg No S6543), Matheson J agreed with the approach of Perry J, in Bates v Police. In Harshazi v Police (1998) 197 LSJS 50, I reiterated what I said in Cadd. I accepted that conduct which was contumacious involved defiance, but said the matter could not be resolved merely by the extent and purpose of driving. I maintain the view which I expressed in Cadd. It is a matter of attitude which must be considered. In Johns v Police (unreported, 24th June 1998, Judg No S6729), Lander J expressed the view that because the test is contumacy, the enquiry must be more directed to attitude. He went on to say that the reasons for driving are important and if it exhibits an attitude of defiance, contumacy would usually be established. I agree, but as may be seen from the reasons for judgment of Lander J, he is not attempting to lay down any hard and fast meaning of contumacious. The reason for driving may indicate the attitude of the driver to the order of disqualification but they cannot, in my view, be the sole determinant of contumacy. Also, Lander J did not take the view that the extent of the driving had to be minimal or trivial to avoid the label of contumacious as, in Johns v Police, the driving had been from Port Pirie to Adelaide.

I have embarked upon this discussion because it was accepted in argument before me that whether the offending is contumacious is a relevant consideration upon a second offence. It is at least in the sense that if the offending is contumacious, a sentence of imprisonment actually to be served is almost inevitable. I note that in Johns v Police, Lander J took the view that on each occasion the Court is called upon to consider the penalty for his offence, whether for a first or subsequent offence, the Court will have to determine which circumstances amount to a contumacious breach: p4.
In the present case that issue may be easily resolved. The conduct of the appellant in driving whilst disqualified could not, in my view, be regarded as contumacious. It was put to the learned Magistrate that it was not and he did not say whether he considered the matter. He does not appear to have rejected the explanation for the decision to drive which was given by the appellant. He had unexpectedly been abandoned by his friend who had driven because the appellant had no wish to drive. He decided to drive because of concern for the stereo equipment and because the distance to be driven was short. It is likely that his reasoning processes were compromised to an extent by this state of inebriation. I do not think that the circumstances reveal the attitude required to amount to contumacy.
In my view, the learned Magistrate was in error in the emphasis which he placed upon the matters of aggravation which I have mentioned. The appellant was “drink driving” but, as has been seen, the learned Magistrate imposed a separate and substantial penalty for the offence of driving with the prescribed concentration of alcohol in the blood. It is true that the driving occurred at a time when other persons were in the vicinity and therefore in a position to be affected by his offending. It is appropriate to have regard to the purpose of protection of the public in licence disqualification: (see Coombe v Douris (1987) 47 SASR 324 at p325 and Eldridge v Bates (1989) 51 SASR 532 at p533) but I think undue emphasis was given to that matter because the public safety issue was addressed by the substantial sentences imposed on the other charges.
When considering the appropriate sentence, there are personal circumstances of the appellant which are relevant. There is his age. He has a good employment history. He left school at the age of 15 years and thereafter has been, for the most part, employed. Despite his young age, he had been in a relationship for almost three years with a young woman and they have a two year old daughter whom he sees regularly. He suffered many problems upon the breakdown of this relationship and turned to alcohol. As has been seen, he now suffers from alcoholism. He intends to resolve that condition and has the support of his mother.
His record of offending is for traffic offences. He has no record of criminal conduct. Apart from the matters mentioned, he is of good character and he has never been in prison. The appellant pleaded guilty to the charge and co-operated with the police in their enquiries.
Must the sentence be imprisonment because the offence is a second offence? In Cadd, after discussing the sentencing standard which should be applied to a first offender, I went on to say:
“Of course, different considerations must apply to the offender who is before the court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind but that is not to say that they cannot exist.”: p180.

I think that observation is correct in the case of contumacious offending. Often the second offence will be evidence of contumacy, but not in all cases. Where there is second or subsequent offending is not contumacious, the usual principles of sentencing should apply. Lander J expressed the position of the second or subsequent offender in this way at p201:

“For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing magistrate that good reason exists for suspending the sentence, increase. A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence. That is because a second offence would ordinarily exhibit contumacy on the part of the offender. So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. Again however, in my opinion, having regard to the fact that this type of offence is simply one which must be considered in relation to the circumstances of the offence and the circumstances of the offender it would be inappropriate to attempt to lay down any further guidelines than that.”

Bleby J accepted that different consideration applied when sentencing a second or subsequent offender than in relation to a first offender: p209. No doubt he had in mind that the qualification to leniency was less likely to exist in those circumstances.

It may be seen from the approach taken by Lander and Bleby JJ and by me, in Cadd, that imprisonment is not the only sentencing option for a second or subsequent offence and, if imposed, suspension of the sentence is also not necessarily to be excluded.
What then is a just sentence in the present case. The offending was not contumacious and the circumstances of the offence and the appellant militate against imprisonment. The sentence is, in my view, manifestly excessive in the circumstances..
Whilst there is force in the observation of the learned Magistrate that one of the purposes of disqualification of licence is community protection and general deterrence, imprisonment is not justified in all of the circumstances. An appropriate sentence is community service.
I allow the appeal and set aside the sentence of imprisonment. The appellant is sentenced to 60 hours of community service to be performed within five months. The appellant must report within 2 days to the Elizabeth Community Correctional Centre, 2nd Floor, Windsor Building, 1 Windsor Square, Elizabeth.

[1998] SASC 6997

17 December 1998