MAXWELL v POLICE No. SCGRG-98-797 Judgment No. S6780

MAXWELL v POLICE
[1998] SASC 6780

Magistrates Appeal (Ex tempore)

Bleby J

The appellant appeals against a sentence imposed upon him by the Magistrates Court sitting at Whyalla, for the offence of driving whilst disqualified, contrary to s91(5) of the Motor Vehicles Act 1959. He pleaded guilty to the offence on 18 March 1998, and was also sentenced on that date. This was not the first time that the appellant had been convicted of the offence of driving whilst disqualified, so the maximum penalty that was applicable to the offence was Division 5 imprisonment, being a term of imprisonment not exceeding two years. The learned sentencing magistrate sentenced the appellant to imprisonment for 18 months, with a non-parole period of 12 months. The sentence was not suspended. The sole ground of appeal alleges that the sentence is manifestly excessive.
The circumstances of the offence were that at about 9.20pm on the night of Wednesday, 10 December 1997, the attention of a mobile police patrol was attracted to a car being driven by the appellant because its tail-lights were very dim. They stopped the car and spoke to the appellant about the tail-lights and some other minor matters pertaining to the condition of the vehicle, and asked whether he had a driver's licence. He replied that he believed that he may have been disqualified from driving, as a result of having lost the required number of demerit points. He denied that he had ever been formally served with a notice of disqualification. In fact, he had been disqualified from driving in South Australia from 29 October 1997 to 28 January 1998, as a result of having lost the prescribed quota of demerit points.
Before the magistrate, the appellant claimed no recollection of having been served with the notice of disqualification, but accepted that it had been so served. His explanation for the driving was that he was trying out a car that he was interested in purchasing. At the time that the appellant was observed driving by the police, traffic was light, the roads along which he travelled were well lit, were sealed, and were in good repair. It was conceded that there was no embarrassment to other road users being caused by the appellant's vehicle, and there were apparently no other traffic offences being committed.
The appellant is a 29 year old man. He has a very poor record for offences of this type, having been convicted on no less than fourteen other occasions for the offence of driving whilst disqualified. He also has numerous convictions for a wide variety of driving offences, as well as for offences of dishonesty and offences of violence. His record is not impressive.
Of particular significance, for present purposes, is his record of previous convictions for this offence. They began in 1986 when there were two offences. There were three in 1988, four in 1990, but prior to this offence there had only been one since 1993, namely one in early 1995. However, for that one, and as a result of a breach of a bond in respect of the 1993 offence, and together with some four other traffic offences, he was sentenced, on 13 September 1995, to imprisonment for twelve months and eleven days with a non-parole period of four months. Many of the other offences for driving whilst disqualified have attracted custodial sentences of between three and six months.
At the age of 13 or 14 he began a rather turbulent period in his life when he learned that the people he believed were his parents were, in fact, his grandparents, and the person he believed to be and whom he had treated as his sister was, in fact, his mother. Whether because of, or in spite of this deception, the appellant became rebellious and was never able to establish a normal relationship with his mother. The identity of his father was never disclosed to him.
At the time of the offence, he was not in paid employment but was in an apparently stable de facto relationship, and he and his partner were purchasing a house in Whyalla. There were no children of the relationship. At the time of the sentencing for this offence the appellant was in custody serving a period of four months imprisonment, the suspension of which had been revoked for breach of a bond. The circumstances of that original sentence and the breach of bond were both unrelated to this offence. He was due for release in respect of that custodial period, according to the magistrate, on 26 June 1998. At the time of his being sentenced for this offence, he therefore had three months and eight days still to be served. Both the head sentence and the non-parole period for this offence were directed to be served as from the date of sentencing, namely 18 March 1998. The head sentence of eighteen months and the non-parole period of twelve months were therefore to be served concurrently with the three months and eight days then remaining on the defendant's existing sentence. This Court has already pointed out in the case of R v Williams (1990) 53 SASR 253, that that is an undesirable practice and, indeed, wrong in principle where there is no relationship between the crimes concerned. Normally the sentence should run from the expiration of the previous sentence.
The sentencing magistrate considered that, given his antecedents, the defendant had shown complete disregard for the previous court orders imposed, and on this occasion had behaved with reckless indifference as to whether he was driving whilst disqualified.
The notice of appeal in this matter was filed on 5 June 1998. It was, therefore, just over two months out of time. The appellant, therefore, applies for and needs an extension of time if his appeal is to succeed. A delay of some eight to nine weeks in the filing of the notice of appeal is significant. In the case of R v Foster (1996) 187 LSJS 135, Lander J referred to some basic principles, with which I respectfully agree, which should guide the court in determining whether or not to grant an extension of time in cases of significant delay. He said:
“Where the delay is significant, an applicant must give a proper and detailed explanation for the delay. However, the court will usually not extend the time within which to appeal, or the time within which an application for leave to appeal may be brought unless the applicant can establish that the delay itself was caused through exceptional circumstances or some untoward vicissitude of life which prevented the applicant from applying his or her mind to the question of appeal, or if the delay was otherwise caused, that on the merits, the appeal would be likely to succeed. (R v Balchin (1974) 9 SASR 64 at 65, and R v Armstrong (1983) 35 SASR 356 at 367). To put it another way, the court will ordinarily need to be persuaded, where the delay is significant, that there exists, by refusing to extend time, an apprehension that a miscarriage of justice might occur. (R v Balchin at 65 and R v Trotter (1979) 22 SASR 64 at 65).”
The appellant's solicitor has sworn an affidavit suggesting that the delay in this case was due not to the default of the applicant, but to difficulties in having the appellant's application for legal aid approved, and a misapprehension on the part of his solicitor that the appellant did not wish to proceed with the appeal. That has been elaborated on in submissions today by Mr Duffy, although not all the details are referred to in the affidavit. Those grounds, standing alone, would not, in my opinion, be sufficient to extend the time for the period that is now sought. However, taken together with what I consider to be the prospect of some success on the appeal, I consider that if the time is not extended, there may be an apprehension that a miscarriage of justice might occur, and, therefore, on those grounds, I am prepared to extend the time for the filing of the notice of appeal to 5 June 1998.
I turn then to the merits of the appeal. The appellant candidly admitted his offence, although he was somewhat reluctant to admit that he had received the relevant notice of disqualification. Nevertheless, he cooperated with the police and pleaded guilty at the earliest opportunity. He was entitled to some discount for that, regardless of the seriousness of the breach itself. When allowance is made for that, it is apparent that the head sentence of eighteen months imposed by the sentencing magistrate places this offence in almost the worst category of cases for which the penalty is prescribed. I will return to what I consider to be the relevant circumstances in a moment, but I have some reservations about whether this particular offence can be so described.
There are many different circumstances in which people may commit this offence, from a mere technical breach, such as driving a car off private property to park it in the street outside so that another person can drive, to driving in circumstances of emergency or expediency, to driving for personal pleasure or convenience, or to driving in circumstances of substantial aggravation, such as going to or returning from committing a crime, or driving in breach of the section whilst on parole, or in breach of a bond.
I cannot say, in viewing the circumstances of the driving in isolation in this case, that this falls into the worst category of offending such as to justify the imposition, after an appropriate discount, of something approaching the maximum penalty. That is what the sentencing magistrate appears to have done by the length of sentence he recorded. I realise that by making the sentence partially concurrent with an existing sentence, the sentencing magistrate has effectively reduced the head sentence for this offence to something less than fifteen months and the non-parole period to something less than nine months, and that the actual sentence must be viewed in that light.
However, as the Full Court made it clear in the case of R v Williams (supra), that is wrong in principle. It is wrong in principle to make unrelated sentences concurrent in that way. It is also wrong in principle to inflate the head sentence because it is, in part, concurrent with another sentence. If I am correct that this is not in the worst category of case after making allowance for the appellant's plea and cooperation, that is what the learned magistrate seems to have done or, at least, that is a possible interpretation of what he has done, and the appeal, I think, must be allowed, even if only to make that adjustment to the actual sentence. The sentence imposed, and which appears in the court's records, should properly reflect the court's estimate of the degree of culpability involved in a crime. If the sentencing magistrate intended an actual head sentence of fifteen months, he should have said so.
What then were the relevant circumstances of the offence that should have been taken into account and now are to be taken into account in fixing any fresh sentence? Mr Duffy, for the appellant, argues that there are other reasons why the offence cannot be placed in the worst category, or even in a category that would justify a head sentence of approximately 15 months. He argues that there were no features of intoxication, excessive speed, recklessness or dangerousness, and that in fact no road users were exposed to any form of danger at all.
I doubt whether such features can be used, to any significant extent, as aggravating features for this offence, or indeed, that the lack of them can be used as mitigating circumstances. I recognise that disqualification is imposed generally because of elements of poor driving. I recognise that that is, in part at least, for the protection of the public. But the offence is not a prohibition on driving under the influence, or driving dangerously, or driving in any other manner. It is an offence for driving at all.
The aggravating features to which Mr Duffy has referred will normally constitute offences in themselves for which, if they occur, an offender will be separately punished.
Here the offence is driving whilst disqualified. All that is required is an act of driving. The circumstances of aggravation or otherwise will relate to the circumstances in which the defendant came to be driving, whether the act of driving was trifling or substantial, and the reasons and the purpose for which the defendant was driving. Above all, it will depend on whether the offence can be said to be contumacious, in the sense discussed by Mullighan J in Police v Cadd and Others, (1997) 69 SASR 150 at 179. That is, whether the defendant was driving with an attitude of total disregard of a disqualification in disobedience to the authority which imposed the suspension.
Cadd's Case also established that for the purpose of determining the seriousness of the breach, it matters not whether the disqualification was imposed by a court or, as in this case, by an administrative authority as a result of the loss of demerit points.
In this case I can see no mitigating circumstances relating to reasons for or purpose in driving. The appellant was driving for his own personal convenience, in circumstances where he knew, or must be taken to have known, that he was disqualified. It was a blatant breach.
That brings into immediate focus his previous record, not only of convictions for this offence but of his numerous other convictions, and particularly for the multitude of driving offences. Mr Duffy argues that to increase the sentence because of those offences is to punish him twice for past offences. He relies on a number of decisions which are perhaps best summarised in the following dictum of the majority of the High Court, comprising Mason CJ, Brennan and Toohey JJ, in the case of Veen v R No 2 (1988) 164 CLR 465, in particular at 477:
“There are two subsidiary principles which have been mentioned. The first is that the antecedent criminal history of an offender, is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: DPP v Ottewell [1970] AC 642 at 650.”
However, the court also added this, and this is of direct application and relevance to this case:
“The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.”
The first consideration, of course, must be of the gravity of the offence in question, and the court must ensure that by giving due weight to the previous record, it is not punishing a person twice. However, at the same time, if the offence, taken against the offender's criminal background, manifests an attitude of continuing disobedience of the law, the record will obviously be of significance in determining the appropriate penalty where it “illuminates the moral culpability of the offender in the instant case” (Veen v R, supra).
I have already said that this offence will seldom be aggravated by the manner of driving, and that that will normally be the subject of the separate penalty. What aggravates this type of offence is the reason for, and circumstances of the driving itself, and the nature and extent of the disregard of the law, given that the disqualification itself will invariably have been imposed by a court or competent statutory authority because of some other breaches of the law. Unlike many other offences, the offender's previous record may well indicate a continuing attitude of disobedience to the law which is directly relevant in assessing the gravity of the offence in question.
By his conduct on this occasion, viewed against the background of apparent failure to show any regard for the driving or other laws of this State, the appellant has not only manifested a blatant disregard for the laws of this State, but has demonstrated contempt for measures taken to enforce those laws. There can be no question but that a substantial term of imprisonment was justified, both as a need to deter the appellant from further offending, other measures having failed, and to deter others who might be tempted to do the same.
It might be suggested that the appellant's pattern of offending, although appalling and not to be condoned, shows some signs of diminishing, both in frequency and by virtue of a stabilising relationship. They are matters to be taken into account, but other relatively recent and repeated offending by the appellant shows a contumacious disregard for the law generally, and especially for the law relating to the use of motor vehicles. For reasons I have given, I have not regarded this as being the very worst category of offending, but the disregard for the law, evidenced by his past record, puts it very close.
It is also very important that this Court should ensure, so far as is possible, as great a degree of consistency as is possible in sentencing offenders for the same offence. In that regard I refer to two recent decisions of this Court on sentence appeals from magistrates for offences against s91(5) of the Motor Vehicles Act.
The first is the decision of Lander J in Tanner v Police (Unreported, 14 July 1997, Judgment No S6257). In that case the appellant pleaded guilty in the Magistrates Court to driving whilst disqualified and was sentenced to imprisonment for two months. The sentence was not suspended. He appealed against that sentence claiming that it was manifestly excessive. The appellant had a poor record. He had previously been convicted of twelve, perhaps thirteen offences of driving whilst disqualified. Lander J dismissed the appeal. He took into account that the previous sentences had not succeeded in deterring the appellant from reoffending, and the fact that imprisonment was likely to have a detrimental effect on his youngest son. Lander J described the penalty as, “the very lightest” that could have been imposed and that it was “merciful”. Both the duration of the sentence and the decision not to suspend it were therefore incapable of being disturbed on appeal by the offender. However, it would appear to have been an extremely light sentence in the circumstances, and the court was powerless to increase the sentence.
Perhaps of more immediate relevance is another decision of Lander J in Johnson v Police (1997) 192 LSJS 442. In that case the appellant pleaded guilty to three separate counts of driving whilst disqualified. There were other charges but I need not deal with them for the present purposes. He had seven prior convictions for that same offence, and several convictions for other driving offences. In relation to the first count he was sentenced in the Magistrates Court to six months imprisonment. In relation to the second count, he was sentenced to nine months which was to be cumulative upon the first period of imprisonment, and in relation to the third count he was sentenced to a period of fifteen months imprisonment, also cumulative upon the other two, making an overall head sentence of thirty months. The sentencing magistrate then set a non-parole period of twenty months. The appellant complained they were manifestly excessive. Lander J allowed the appeal and stated that in spite of the fact that the appellant's offending exhibited a clear disregard for the law, and that there were few mitigating circumstances, the sentences were manifestly excessive. Accordingly, he set aside the sentences imposed by the magistrate and sentenced the appellant afresh. In relation to the first count, he sentenced the appellant to three months which was made cumulative upon the sentence of four months which he imposed in relation to the second count, and in relation to the third count he imposed a sentence of six months cumulative upon each of the other sentences of imprisonment. That meant a total head sentence of thirteen months and Lander J imposed a non-parole period of eight months.

In neither of those two cases to which I have referred were the sentences suspended. In both cases, Lander J described each of the appellants as a “quintessential contumacious offender”.
I have already indicated that in my opinion the magistrate erred in fixing the sentence he did and by making it concurrent with the then existing sentence. That is sufficient to justify allowing the appeal and reconsidering the proper penalty that should be imposed.
I take into account the circumstances of cooperation and the plea to which I have referred. I also take into account that whilst this offence is perhaps not in the very worst category, it is, nevertheless, a very serious and culpable breach.
I take into account, not only the maximum sentence prescribed of two years, but the standard of sentencing customarily observed for crimes of this nature and degree of seriousness. I also take into account that I am not constrained here by considerations of totality, given that this is not one of a number of multiple offences. I make some allowance for the appellant's personal circumstances and background and the fact that he may well, in his present circumstances, benefit from the assistance and guidance of a parole officer in due course.
I allow the appeal. I set aside the sentence imposed in the Magistrates Court. I substitute for that sentence a head sentence of twelve months imprisonment and fix a non-parole period of seven months. Both the head sentence and the non-parole period are to run from the date of release of the appellant from custody for the sentence he was serving at the time of his sentence by the magistrate in this case. I understand that to have been 26 June 1998.

[1998] SASC 6780

22 July 1998