SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MILL v POLICE
[2007] SASC 253
Judgment of The Honourable Justice White
6 July 2007
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT
Appellant sentenced to imprisonment of 10 days in respect of an offence of driving whilst disqualified - sentencing magistrate declined to suspend the sentence - whether the magistrate erred in finding the offending to be contumacious - whether appellant's intoxication at the time of driving was relevant to the exercise of the discretion to suspend - whether good reason to suspend the sentence exists.
Held: intoxication an irrelevant consideration - discretion concerning suspension to be exercised afresh - appeal allowed.
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GENERALLY
Police issued notice of immediate licence disqualification following apprehension for driving with prescribed blood alcohol content - previous suspension was in force at the time of apprehension - magistrate imposed a licence disqualification of three years and ordered that it commence at the time the notice was issued by police - whether magistrate erred in directing that the disqualification commence at the time the notice was issued - whether the magistrate had the power to order that disqualification be retrospective.
Held: cross-appeal allowed - licence disqualification imposed by magistrate to commence at the expiry of the existing licence disqualification.
Road Traffic Act 1961 (SA) s 45B, s 47A, s 47B, s 47IAA, s 169A; Motor Vehicles Act 1959 (SA) s 91; Road Traffic (Notices of Licence Disqualification or Suspension) Amendment Act 2006 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 30, referred to.
Maxwell v Police (1998) 102 A Crim R 374; Police v Brookman [2006] SASC 378, applied.
Police v Cadd (1997) SASR 150; Bates v Police (1997) 70 SASR 150, discussed.
Johns v Police [1998] SASC 6729; Buttigieg v Police [2003] SASC 363; Mills v Police [2003] SASC 175; R v A [2003] SASC 121; Police v Conway (2006) 95 SASR 83; R v Garrett (1978) 18 SASR 308; R v Colson (1999) 73 SASR 407, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Contumacious"
MILL v POLICE
[2007] SASC 253Magistrates Appeal
WHITE J: This is an appeal and cross-appeal against a sentence imposed by a magistrate. The appeal is against the decision of the magistrate not to suspend a sentence of imprisonment of 10 days. The cross-appeal is against the date fixed by the magistrate for the commencement of a period of licence disqualification.
The appellant pleaded guilty to the offence of driving a vehicle on a road while there was present in his blood the prescribed concentration of alcohol (“the PCA offence”), contrary to s 47B of the Road Traffic Act 1961(SA)…
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- Mill v Police [2007] SASC 253
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- [2007] SASC 253
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CaseChat Overview and Summary
The legal issues before the court were whether the magistrate erred in characterising the offence as contumacious, whether the appellant's intoxication was a relevant consideration in suspending the sentence, and whether the magistrate had the power to order that the disqualification commence retrospectively. The court needed to determine whether the magistrate had applied the correct legal principles in assessing the appellant's conduct and in imposing the licence disqualification.
The court found that the magistrate's characterisation of the offence as contumacious was not in error, as the appellant's driving while disqualified was deliberate and not for a short distance. The intoxication of the appellant at the time of driving was deemed irrelevant to the exercise of the discretion to suspend the sentence, as it did not affect the contumacious nature of the offence. The court also held that the magistrate had no power to order that the licence disqualification commence retrospectively, and thus, the disqualification should commence at the expiry of the existing disqualification. The court exercised its discretion to suspend the sentence of imprisonment and ordered the disqualification period to commence on the correct date.
The appeal was allowed, and the 10-day imprisonment sentence was suspended on the appellant entering into a bond to be of good behaviour for nine months, subject to community service and the directions of a community corrections officer. The cross-appeal was also allowed, and the magistrate's order for the disqualification to commence on 26 June 2006 was set aside. The three-year disqualification period imposed by the magistrate was ordered to commence on 23 April 2008.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The magistrate considered that the appellant’s conduct in driving on a road while disqualified should be regarded as contumacious and that imprisonment was appropriate. The magistrate was urged to suspend the sentence of imprisonment. He acknowledged that a suspended sentence may have both a personal and general deterrent effect and then said:However, let us pause to remember that when the period of disqualification for his then second drink driving offence was imposed upon Mr Mill he was warned of the possible consequences of driving whilst disqualified. He was not deterred by that possibility of an actual sentence of imprisonment. Of course I am reluctant to impose any sentence that might place Mr Mill’s opportunity for permanent employment at risk, but let us not forget that the hopes and expectations of those who have been killed by drunken drivers have been forever extinguished. That is what the duty of the courts to disqualify drunken drivers is all about.The magistrate then declined to suspend the sentence of imprisonment of 10 days.Consideration of Submissions on Appeal Mr Longson, for the appellant, submitted that the magistrate’s decision refusing to suspend the sentence was affected by two errors. The first was the magistrate’s characterisation of the appellant’s driving as contumacious. In this respect, Mr Longson emphasised the circumstance that the appellant was responding to a perceived crisis involving his current and former partners, and the shortness of the distance driven. The circumstances which make driving while disqualified contumacious are generally to be found in the attitude of the offender to the disqualification and to the authority of the court imposing the disqualification. In Police v Cadd,[1] Mullighan J said that the conduct involved in driving while disqualified may be considered contumacious if it is committed with “an attitude of total disregard of the disqualification in disobedience to the authority which imposed it”.[2] In Bates v Police,[3] Perry J said:I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.[4][1] (1997) 69 SASR 150.[2] Ibid at 179. See also Johns v Police [1998] SASC 6729 per Lander J; Buttigieg v Police [2003] SASC 363 at [8]-[9] per Bleby J and Mills v Police [2003] SASC 175 at [16]-[22] per Sulan J.[3] (1997) 70 SASR 66.[4] Ibid at 73. I would not regard the prospect of a confrontation between the appellant’s present and former partners as creating the kind of emergency to which Perry J was referring in Bates. If the appellant wished to involve himself in that confrontation, he could as easily have called a taxi. Alternatively he could have called the police and enlisted their assistance. The decision to drive himself seems to have been more in the nature of meeting his own convenience. The reason for the appellant’s driving (which was accepted by the magistrate) may ameliorate to some extent his defiance of the order of disqualification, but I do not consider that the magistrate was in error in characterising the appellant’s driving as contumacious.