McGrath v Police - [2021] SASC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MCGRATH v POLICE
[2021] SASC 140
Judgment of the Honourable Auxiliary Justice Davison
3 December 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
On 3 May 2021 the appellant was sentenced to a term of imprisonment of four days for an offence of driving whilst disqualified. That sentence was suspended upon her entering into a bond to be of good behaviour for six months.
On 18 May 2021 the appellant was detected driving whilst disqualified and having more than the prescribed concentration of alcohol in her blood. These offences were committed in breach of the suspended sentence bond imposed on 3 May 2021.
The appellant pleaded guilty on 7 September 2021 to the offences committed on 18 May 2021 and acknowledged the breach of the bond entered into on 3 May 2021. On 7 September 2021 the Magistrate revoked the suspended sentence and ordered that she serve the term of imprisonment. He sentenced her to seven weeks imprisonment for the offence of driving whilst disqualified on 18 May 2021 and ordered the sentences be served cumulatively.
The appellant appealed against the sentence on the grounds that:
1. The learned Magistrate erred in failing to excuse a breach of bond entered into by the appellant on 3 May 2021;
2. The head sentence for the offence of drive disqualified committed on 18 May 2021 was manifestly excessive;
3. The learned Magistrate erred in failing to properly exercise his discretion in not suspending the sentence.
Held:
1. The learned Magistrate did not err in failing to excuse the breach of bond as the breach was not trivial nor did proper grounds exist to excuse the breach.
2. The sentence of seven weeks imprisonment for a subsequent offence of driving whilst disqualified was not manifestly excessive.
3. The learned Magistrate did not err in failing to properly exercise his discretion in not suspending the sentence as he was precluded from doing so pursuant to s 96(3)(a) of the Sentencing Act 2017 (SA).
The appeal is dismissed.
Motor Vehicles Act 1959 (SA) ss 91, 91(5); Sentencing Act 2017 (SA) ss 71(2)(d), 96(1), 96(3)(a), 96(4), 114(1)(d), 114(3), referred to.
House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; Markarian v The Queen (2005) 228 CLR 357; Carbone v Police [2016] SASC 131; Police v Peel (2021) 134 SASR 584; Police v Heritage (2019) 135 SASR 1; Coombe v Douris (1987) 47 SASR 324; Eldridge v Bates (1989) 51 SASR 532; Police v Nissen (2014) 120 SASR 50; Police v Cadd (1997) 69 SASR 150; R v Oake (2017) 128 SASR 260, applied.

MCGRATH v POLICE
[2021] SASC 140
Magistrates Appeal: Criminal

DAVISON AJ: This is an appeal against a sentence imposed on 7 September 2021 by a Magistrate sitting in the Clare Magistrates Court, for an offence of driving whilst disqualified on 18 May 2021 and breaching a bond entered into on 3 May 2021.
Background
On 3 May 2021, the appellant Franziska Heilmair McGrath was convicted of a number of offences contrary to the road traffic laws and one count of driving disqualified contrary to the provisions of s 91 of the Motor Vehicles Act 1959 (SA) (‘MVA’).
On 9 July 2020, the appellant was driving with excessive blood alcohol being 0.219 g of alcohol per 100 ml of blood, when she rolled her motor vehicle. For this offence, she was fined $1110 and disqualified from driving for 12 months from 9 July 2020.
On 22 October 2020, the appellant had a blood alcohol reading of 0.242 g of alcohol per 100 ml of blood when she had a collision with a truck. In relation to this offence, she was fined $1110 and disqualified from driving for 15 months commencing on 9 July 2021. She was also convicted of failing to drive to the left of the dividing line and discharged without further penalty.
On 1 April 2021 the appellant was detected driving whilst disqualified. Her motor vehicle was also unregistered and uninsured.
On 3 May 2021 the learned Magistrate, Ms McGrath[1], dealt with each of the above matters. For the offence of driving whilst disqualified committed on 1 April 2021, she imposed a term of imprisonment of four days and suspended that upon the appellant entering into a bond to be of good behaviour for six months in the sum of $500. The learned Magistrate then said to the appellant ‘you do the right thing, stay out of trouble for the next six months the four days goes away. You breach that bond any type of offending you are up to spending four days in gaol’. The appellant was also told ‘do not drive disqualified you will end up in gaol’. For the offences of driving unregistered and uninsured, the appellant was convicted and discharged without further penalty.
[1] The learned Magistrate is unrelated to the appellant.
On 18 May 2021, 15 days after the appellant was sentenced for the above offending, she was observed by a police officer driving on Old North Road at Clare. The vehicle was stopped for a mobile driver screening test. The appellant submitted to an alcotest. A positive result was recorded. She was then conveyed to the Clare Police Station and directed to participate in breath analysis testing. Police attempted to conduct the breath analysis several times, however, only one positive result was recorded from eight attempts. The appellant then requested a blood test kit which was conducted at the Clare Hospital. The blood sample was analysed and not less than 0.099 g of alcohol per 100 ml of blood was detected. The appellant was charged with driving whilst disqualified, failing to comply with breath analysis and driving with excess blood alcohol.
In respect of the offence of driving under disqualification, the appellant told the police she was aware of the disqualification but lived remotely and needed to drive. She declined to answer any questions about driving with excess blood alcohol.
On 7 September 2021, the appellant appeared in the Clare Magistrates Court in respect of the offences committed on 18 May 2021. An application for revocation of the bond that had been imposed on 3 May 2021 was also before the court. The learned Magistrate, Mr Davis, heard submissions from the prosecution and counsel acting on the appellant’s behalf.
He determined that there were no proper grounds to refrain from revoking the suspended sentence of imprisonment pursuant to s 114(3) of the Sentencing Act 2017 (SA) (‘Act’) nor did he consider that special circumstances existed justifying a reduction of that sentence. He, therefore, revoked the bond and ordered that the appellant serve four days imprisonment in respect of the April 2021 offending.
In respect of the offences committed on 18 May 2021, the learned Magistrate imposed a term of imprisonment for the offence of driving whilst disqualified contrary to s 91(5) of the MVA. He said he would have imposed a term of 10 weeks imprisonment but reduced that to seven weeks on account of her guilty plea. He declined to suspend the sentence and ordered that it be served cumulatively upon the term of imprisonment for the April offence. The appellant was therefore sentenced to a term of imprisonment of seven weeks and four days. The prosecution withdrew the offence of failing to comply with breath analysis. The offence of driving with excessive blood alcohol was dealt with by way of a conviction, a fine of $1500, and a licence disqualification of two years.
The chronology of this matter shows that although the appellant should have been disqualified from driving by reason of her offending on 9 July 2020, she did not appear to have received the notice of disqualification at that time. She was, however, disqualified immediately after the offence on 22 October 2020 and then disqualified until further order by the Registrar of Motor Vehicles on 12 January 2021 for medical reasons.
Magistrate’s reasons
In sentencing, the learned Magistrate took into account the pleas of guilty, the appellant’s full and frank admissions and her cooperation with the police. He referred to her personal circumstances that were included in a report by consultant psychiatrist, Dr Antoinette Bearman in respect of a consultation that she had with the appellant on 14 July 2020 together with her recommendations. A submission had been made by the appellant’s counsel, Mr Hynes, that the appellant lived on a rural property 10 km from Riverton and she was driving to Clare to get groceries and food for her animals, as the supermarkets would not deliver to her.
The Magistrate considered whether there were proper grounds to excuse the breach taking into account the appellant’s personal circumstances and the circumstances of the offending. He determined that there were no proper grounds to excuse the breach, given the serious and blatant breach of the court order within such a short period of time. He determined that there were no special circumstances to reduce the penalty and therefore, revoked the bond bringing into effect the sentence of four days imprisonment. Having imposed a term of imprisonment for the drive disqualified offence that was before him, he considered whether there was good reason to suspend the sentence wholly or in part and determined there was no good reason to suspend the sentence for what he regarded as contumacious offending. In considering the issue of the characterisation of the driving, he later added to his remarks that the offence is no less contumacious or defiant when it occurs within a country area or where the appellant was isolated geographically. He noted that driving in country rural and remote areas whilst disqualified is not an unusual feature and that there was no pressing need nor medical or emergency involved.
The appeal
The appellant now appeals on the basis –
1.That the learned Magistrate erred in failing to excuse a breach of the bond entered into by the appellant on 3 May 2021;
2.The head sentence for the offence of drive disqualified committed on 18 May 2021 was manifestly excessive;
3.The learned Magistrate erred in failing to properly exercise his discretion in not suspending the sentence.
There is no appeal against the sentences in respect of the offence of driving with excess blood alcohol or related matters.
Nature of the appeal
This appeal is by way of rehearing. I should not interfere with the Magistrate’s exercise of a sentencing discretion unless an error was made in the exercise of that discretion. An error will exist if the Magistrate committed some mistake of fact or law, took into account an extraneous or irrelevant consideration, failed to have regard to a relevant consideration or made a decision that was so obviously unreasonable or unjust that it can be said that there was a failure to exercise the discretion properly.[2] I must not substitute my own opinion merely because I would have exercised a discretion in a manner different from the matter to which the sentencing Magistrate exercised his discretion.[3]
Ground 1 ‑ The learned Magistrate erred in failing to excuse the breach of bond entered into on 3 May 2021.
[2] House v The King (1936) 55 CLR 499, 505.
[3] See ibid; Wittwer v The Police [2004] SASC 226, [16]-[17]; Markarian v The Queen (2005) 228 CLR 357, 371; Carbone v Police [2016] SASC 131, [7].
The appellant submits that although the breaching offence was the same offence for which the appellant was placed upon the bond, the breach itself was not a flagrant disregard of the obligation to be of good behaviour. In this regard, he refers to the decision of Police v Peel[4] in which Kourakis CJ considered the phrase ‘proper grounds on which the failure should be excused,’ and said that the authorities do not strictly limit ‘proper grounds’ to the nature and circumstances of the offence.[5] Rather, they extend the circumstances related to the same point in time to factors relating to the breach itself, and to circumstances existing at the time of the offence which bear on the culpability of the offender in committing the offence. His Honour went on to say that it follows that if earlier conduct shows that the breach itself was committed in flagrant disregard of the obligation to be of good behaviour, the earlier conduct may be taken into account and weighs against a finding that there are proper grounds to excuse the breach.[6]
[4] (2021) 134 SASR 584.
[5] Ibid 585-6.
[6] Ibid 586.
The appellant submitted that the learned Magistrate failed to adequately take into account her mental health or personal circumstances as they stood when the breaching offence was committed. In this regard Mr Hynes submitted that at the time of the breaching offence the appellant had not yet come to terms with her mental health issues that in turn caused bad judgment and her issues in relation to alcohol consumption.
Consideration of whether there are proper grounds focuses upon the objective circumstances of the breaching offence as opposed to the personal circumstances of the defendant more generally, except where it relates to the circumstances surrounding the breach that inform the nature and the circumstances of the breach. In this regard, the matters that bear on the culpability of the offender in committing the offence are also relevant. This may include the defendant’s state of mind and any history of similar offending.[7]
[7] Police v Heritage (2019) 135 SASR 1, 11.
Section 114(1)(d) of the Act provides that if the court is satisfied that the probationer has failed to comply with a condition of a bond and was sentenced to a term of imprisonment for the original offence and that sentence was suspended, the court must subject to s 114(3) of the Act revoke the suspension and order that the sentence be carried into effect. This section is qualified by the operation of s 114(3) that provides that if the court is satisfied that the breach was trivial or there were proper grounds on which the breach should be excused, the court may refrain from revoking the suspension. Therefore, the court is only empowered to revoke the suspension if satisfied that the failure to comply with a condition of the bond was not trivial or there are no proper grounds upon which the failure should be excused.
There was no suggestion that the failure to comply was trivial. Where there are no proper grounds upon which to excuse the failure, the court must therefore revoke the suspension. It is only at that point that the question of whether there are special circumstances justifying the reduction of the sentence should be considered. It was not submitted that special circumstances existed to reduce the sentence and properly so. The ordinary consequence of breaching the bond is that the sentence will be carried into effect.
In determining whether there were proper grounds upon which to excuse the breach there were a number of relevant considerations. The offences that breached the bond were committed 15 days after the bond was imposed. At that time the learned Magistrate had explained the consequences of failing to comply with the bond and driving whilst disqualified. The offences were of the same nature and committed in circumstances where the appellant was not only driving whilst disqualified, but was also under the influence of alcohol.
There was no evidence that the appellant was labouring under a diagnosed mental illness that contributed to the commission of the offences that breached the bond. The submissions that were made before the learned Magistrate were that a lengthy consultation with Dr Bearman occurred on 14 July 2020, following the offending on 9 July 2020 in which a number of recommendations were made. The appellant last consulted her GP in late 2020. It was said that the appellant made several attempts with helplines but that she felt that no-one understood her problems and then continued to self-medicate with alcohol.
The reason given by the appellant for the driving in contravention of the court order was to obtain food for herself and her animals. However, the difficulties that faced the appellant living in a rural area and obtaining goods and services must have been apparent from 22 October 2020 when her licence was disqualified. She should not have been driving since that time. She therefore had about six months to adjust to the circumstances that she faced without a licence at the time of her court imposed disqualification on 3 May 2021. The fact that she had been medically disqualified from 12 January 2021 only served to reinforce the need for her to have made alternative arrangements long before her court appearance in May 2021. She was given an unequivocal warning by the learned Magistrate on 3 May 2021 as to the consequences that would flow from her breaching the bond and driving whilst disqualified. The explanation proffered as to lack of capacity to adhere to the orders is unacceptable, especially when considered in light of the protracted period of disqualification that preceded her court appearance in May 2021.
There was, therefore, no basis upon which the learned Magistrate might conclude that the appellant’s state of mind mitigated her culpability such to amount to proper grounds to excuse the breach. There was no error by the Magistrate in determining that the appellant’s explanation for her offending, being that she drove to obtain food for herself and her animals, in circumstances where 15 days earlier she had been specifically warned of the consequences of so doing and should not have been doing so for about six months, did not amount to proper grounds. Indeed, this submission did no more than confirm that the nature of the breach was a deliberate and considered disregard of the court’s order.
There is no error demonstrated by the appellant in respect of the learned Magistrate’s determination that proper grounds to excuse the breach did not exist in this case.
Ground 2 ‑ The head sentence for the offence of drive disqualified committed on 18 May 2021 was manifestly excessive.
The learned Magistrate correctly identified the maximum penalty for a subsequent offence of driving whilst disqualified as two years imprisonment. He found that the reason advanced for driving did not mitigate the offence in any way and that the offence was aggravated by the fact that the appellant had been drinking alcohol. He said that her personal circumstances were obviously relevant and important to sentencing but so was the concept of personal deterrence, as that this offence was committed within 15 days of her previous court appearance for an offence of the same nature. He characterised her decision to drive following the earlier court appearance as contumacious. He gave the full benefit of the plea and sentenced her to seven weeks imprisonment cumulative upon the four days in respect of the previous offending. The learned Magistrate found there was no reason to suspend the sentence nor order it to be served on home detention.
The appellant submits that the sentence was manifestly excessive. It was submitted that it could not be inferred that the appellant had a contempt for, or at least a dismissive attitude, to the earlier order of disqualification or that she would be unlikely to benefit from a rehabilitative sentence. Further, it was submitted she was not a recidivist driver who had no compelling reason to drive. It was submitted that she drove for the purpose of obtaining food for herself and her animals, and further that, following the disqualification ordered on 3 May 2021, she had made enquiries in relation to two major supermarket chains regarding home delivery. She was informed that the supermarkets would not deliver to her home due to her remote location and with respect to one of them, the fact she lived on a dirt road. She had been unable to arrange the delivery of animal feed.

It was also submitted that the driving took place during a period of mental illness that commenced in late 2018. She had unsuccessfully sought treatment for her illness prior to the offending on 18 May 2021. Since that time, following a period of isolation and self-reflection, her mental health had improved, and she had brought her excessive drinking under control. Further, it was submitted that she has an unremarkable antecedent history with little history of offending predating the onset of her mental illness in late 2018. It was further submitted that imprisonment was not the only sentencing option for a second or subsequent offence, and if imposed, suspension was not necessarily excluded. It was submitted that the learned Magistrate erred in exercising his discretion and that warrants intervention by this court.
The respondent submits that it is well established that the appropriate sentencing standard for offences of this type is a term of imprisonment.[8] In large part, this is because the mechanisms of licence disqualification or suspension are the main method by which traffic offences are regulated. If that regulation is disregarded those mechanisms are rendered ineffective. As observed in Police v Nissen[9] any disregard for orders of disqualification must be deterred. It is not for the subject of the order of disqualification to judge whether his or her personal circumstances justify a refusal to comply with a judicial, legislative or administrative order. In Police v Cadd[10] the court addressed the circumstances of when departure from the imposition of a term of imprisonment may be appropriate. Doyle CJ considered that the circumstances of the offence and the circumstances of the offender may provide for a basis for departure from the ordinary case but did not consider it appropriate to be categorical. More recently, Kourakis CJ summarised the approach for sentencing for driving whilst disqualified as follows:
Driving in contravention of a licence disqualification or suspension is difficult to detect and, for that reason, it is critical that when an offender is apprehended the disqualification and suspension orders are strongly enforced.
The feature of an offence of driving whilst disqualified from holding a licence, or whilst a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving whilst holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender’s personal circumstances.
The measure of an offender’s attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach.
It can generally be inferred that a person who drives when disqualified, or whilst holding a suspended licence, after having been convicted of an earlier offence, has a contempt for or, at least, a dismissive attitude to orders of disqualification or suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence.
It follows that, as a matter of principle, sentences of immediate imprisonment will often be justified in the case of first offenders who show little regard for orders of disqualification or suspension. As for repeat offenders like the appellant, it is difficult to contemplate circumstances which, consistently with the matters of general principle to which I have referred, would justify a non‑custodial sentence.[11]
[8] Coombe v Douris (1987) 47 SASR 324; Eldridge v Bates (1989) 51 SASR 532.
[9] Police v Nissen (2014) 120 SASR 50, 58.
[10] Police v Cadd (1997) 69 SASR 150.
[11] Police v Nissen (2014) 120 SASR 50, 58-9.
The circumstances that may justify a sentence less than imprisonment need to be founded on a significant and immediate need to drive. As the judgments in Cadd[12] make clear, reasons falling short of duress and medical emergency suggest that little importance is placed upon the court order by the offender. Generally speaking, loss of employment, financial loss and domestic reasons have been considered weak reasons to breach a court order.[13] In order to ensure that disqualification orders operate as an effective sanction in relation to road traffic matters, imprisonment will generally be the appropriate penalty for offenders who repeatedly flout judicial or administrative orders of disqualifications.
[12] Police v Cadd (1997) 69 SASR 150.
[13] Police v Nissen (2014) 120 SASR 50, 59.
The present offence was committed only 15 days after the appellant was sentenced to a suspended sentence for the same offence. Her reason for driving is not compelling. This is especially so, when seen in the context of the disqualifications and the regime that should have been in place prior to this time. The appellant should not have been driving from 22 October 2020 when she was disqualified from driving with excessive blood alcohol. On 12 January 2021, she was disqualified until further order for medical reasons. There has been no explanation given as to how she overcame the difficulties that presented themselves on 18 May 2021 during the earlier period of time, when she was residing at the same property and in the same circumstances. The submissions seem to suggest that she only made enquiries after her court disqualification on 3 May 2021. If that is so, it is surprising and concerning.
The sentence, with a starting point of 10 weeks imprisonment, was well within the appropriate range given the maximum penalty and the penalties routinely given for a subsequent offence in these circumstances. There was little to say by way of the personal circumstances of the appellant that warranted leniency. This was a case in which the need for personal and general deterrence was of significance.
No error has been demonstrated in respect of the imposition of a term of imprisonment nor the length of that term of imprisonment.
Ground 3 ‑ The learned Magistrate erred in failing to properly exercise his discretion in not suspending the sentence.
It was initially submitted that suspension of the sentence was not necessarily excluded and while it was conceded that the appellant was not driving to meet an emergency, it was submitted that she did not drive in circumstances where it would be merely inconvenient not to drive, so as to suggest an attitude of defiance.
Section 96(1) of the Act permits a court who has imposed a term of imprisonment to suspend that sentence if good reason exists for doing so, upon the defendant entering into a bond. However, s 96(3)(a) specifically precludes a sentence of imprisonment being suspended if the defendant is being sentenced to a term of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant. Section 96(4) permits a court, where a defendant is liable to serve one or more sentences that is more than three months but less than 12 months, to serve a specified period being not less than one month and then suspend the remainder. This section has no application in this case.
The learned Magistrate was not permitted to suspend this sentence having determined that there were no proper grounds to refrain from revoking the term of imprisonment that was imposed on 3 May 2021 and imposed a sentence of seven weeks imprisonment. Quite properly, during the course of the appeal, Mr Hynes conceded this was the correct approach.
It was not open to the learned Magistrate to consider a term of home detention in respect of the term of imprisonment that had been the subject of the suspended sentence.[14] Nor could he grant home detention as a consequence of s 71(2)(d) of the Act.
[14] R v Oake (2017) 128 SASR 260.
In this case, even if the appellant had not been ordered to serve a term of imprisonment in respect of the offence that she committed on 1 April 2021, the learned Magistrate did not fall into error in determining that good reason did not exist to suspend the term of imprisonment for the offending committed on 18 May 2021. The driving was correctly characterised as contumelious. The appellant had been given an explicit warning by the learned Magistrate on 3 May 2021 and committed an offence of the same nature 15 days later. At the time she drove on 18 May 2021, she also had more than the prescribed concentration of alcohol in her system. The appellant’s decision to drive did not arise from an emergency or duress, rather it emanated from a blatant and deliberate disregard for the courts order. Any mental health difficulties that the appellant may have been experiencing did not excuse nor mitigate her offending.
No error has been demonstrated that would warrant inference by this court.
I dismiss the appeal.