Mill v Police

[2007] SASC 253

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 253

Magistrates Appeal

1. 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.

2. 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) (“RTA”). The concentration of alcohol present in his blood at the relevant time was 0.21 grams per 100 millilitres of blood. The appellant also pleaded guilty to the offence of driving a vehicle on a road whilst disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the Motor Vehicles Act 1959 (SA).

3. Both offences were committed at Morphett Vale at about 5.15 am on Sunday 18 June 2006. They were detected when the appellant was stopped by the police. Eight days later, on 26 June 2006, the police gave the appellant what I understand to have been a notice of “immediate licence suspension”. It is evident that in doing so the police were purporting to act pursuant to s 47IAA(2) of the RTA.

4. The magistrate imposed a fine of $1500 and a licence disqualification of three years in respect the of the PCA offence.  He directed that the period of disqualification was “to commence” at 9.49 am on 26 June 2006.  The magistrate did this so that the disqualification which he had ordered would be taken to have commenced at the time at which the immediate licence disqualification imposed by the police took effect.  It is that backdating of the commencement of the licence disqualification which gives rise to the cross-appeal.

5. In relation to the offence of driving while disqualified, the magistrate imposed a sentence of imprisonment of 10 days.  He declined to suspend that sentence.  On appeal, the only matter argued by the appellant was the decision of the magistrate not to suspend the 10-day sentence of imprisonment.

   The Circumstances of the Offending

6. Early on the morning of Sunday 18 June 2006 the appellant was at his home and consuming alcohol.  He received a telephone call from his former partner.  While the precise details are not clear, it seems that the appellant was warned that a confrontation was about to occur involving his former and current partners.  The appellant decided to drive to the nearby house of his current partner to intervene in the dispute and, if possible, to pacify the participants.  The police stopped the appellant while he was in the course of that journey. 

   The Appellant’s Antecedents

7. The appellant has relevant previous convictions.  He was convicted on 13 October 2003 for offences committed on 22 August 2003 of exceeding the speed limit and of driving with excess blood alcohol.  A fine of $650 and a 10‑month period of licence disqualification were imposed.

8. The appellant was convicted on 21 April 2005 of offences committed on 30 October 2004 of driving with excess blood alcohol and of contravening a condition of a provisional licence.  A fine of $1200 and a three-year licence disqualification, commencing on 24 April 2005, were then imposed.  The appellant was subject to that period of disqualification at the time of his apprehension by the police on 18 June 2006.

   The Reasons of the Magistrate

9. 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

10. 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.

11. 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.

12. 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.

13. The second matter upon which the appellant relied was the magistrate’s reference to the “hopes and expectations of those who have been killed by drunken drivers” and to the statement “that is what the duty of the courts to disqualify drunken drivers is all about”.  Mr Longson’s submission was that these passages indicated that the magistrate had taken into account, in relation to the penalty for the offence of driving while disqualified, a consideration which was irrelevant to the penalty for that offence.  The appellant’s intoxication was irrelevant it was said, because the sanction for the appellant’s “drunken driving” was to be reflected in the penalty imposed for the PCA offence and because imprisonment was not an available sentencing option in relation to that offence.  The PCA offence had been charged separately and was to be punished separately.

14. The appellant’s submission derives support from two previous decisions of this Court.  In Maxwell v Police[5] the Court was pressed with a submission that a sentence of imprisonment imposed for driving while disqualified was excessive because the driving had not been accompanied by any aggravating features such as intoxication, excessive speed, recklessness or dangerousness.  In respect of this submission, Bleby J said:

    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 … 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 …”[6]

    [5] (1998) 102 A Crim R 374.

    [6] Ibid at 378.

15. The approach taken in Maxwell was also adopted by Layton J in Police v Brookman.[7]Layton J held that in a circumstance in which the offender had been prosecuted and punished for a drink driving offence, it would be punishing him twice to have regard to the intoxication in determining penalty for the offence of driving whilst disqualified.[8]

    [7] [2006] SASC 378.

    [8] Ibid at [25].

16. Ms Shanks, for the Police, accepted that it was appropriate in this case, for the approach taken in Maxwell and Brookman to be applied.  Ms Shanks submitted that the magistrate’s remarks concerning “drunken drivers” should be regarded as directed to the PCA offence.  However, when the remarks are considered in context, it is clear, in my opinion, that the magistrate was stating that the appellant’s driving whilst intoxicated was a factor which he was taking into account in his decision concerning suspension of the imprisonment imposed for the offence of driving whilst disqualified.

17. I accept therefore that in considering whether or not to suspend the sentence, the magistrate has had regard to an irrelevant consideration.  This means that the appeal should be allowed and the discretion considered afresh.  In saying this, I do not wish to be understood as indicating that intoxication may never be relevant to the assessment of penalty for an offence of driving while disqualified.  The fact of intoxication may, for example, be very relevant to the assessment of the contumacy involved in the offender’s driving.

18. The decision in Police v Cadd[9] indicates that good reason to suspend a sentence of imprisonment imposed for the offence of driving whilst disqualified may not be found in the usual run of cases.  It is not necessary to repeat the considerations indicating why that is so.  Mr Longson referred to the appellant’s age (25 years), the fact that this was his first offence of driving whilst disqualified, the circumstances of crisis as perceived by the appellant which led him to drive, his otherwise good character and the significant effect which imprisonment is likely to have on his employment.  In respect of the latter matter the magistrate had evidence from the appellant’s employer.  This indicated that after seven months of employment, the appellant was six weeks away from being accepted as a full-time employee.  He is a well-regarded employee.  However, the employer’s attitude is that if the appellant is required to serve a sentence of imprisonment, his employment would be terminated with no prospects of future employment.  The regard which can be had to effects of employment in cases such as the present is limited.  Many of those who commit this offence are young men whose employment, or employment prospects, will be adversely affected by an order of imprisonment.  Part of the deterrent effect of an order of imprisonment must be the knowledge of the effects on employment which imprisonment involves.

    [9] (1997) 69 SASR 150.

19. Most of the other features upon which Mr Longson relied are also features commonly found in the personal circumstances of those who commit the offence of driving whilst disqualified.  Mr Longson also referred to the fact that the prosecution had not opposed suspension of the sentence in the particular circumstances of this case.  Strictly speaking the prosecution attitude is of little relevance.[10]  It certainly did not bind the magistrate, and it does not bind this Court.  However, in the present case, the magistrate must, in addition to the circumstances of the offending, have been impressed by circumstances personal to the appellant.  That appears to account for the very short period of imprisonment imposed, namely, 10 days.  It is likely that the magistrate regarded the appellant’s personal circumstances, and the fact that the contumacy involved was at a low level, as warranting only a very short sentence of imprisonment.  The attitude of the prosecution may have assisted the magistrate in arriving at that view of the matter.

    [10]   R v A [2003] SASC 121 at [15]-[21].

20. In my opinion, even when consideration of the appellant’s intoxication is excluded, the case for suspension in this case cannot be regarded as strong.  As I have said, many of the features present in this case will also be present in many other offences of driving whilst disqualified.  However, when regard is had to the very short period of imprisonment which was ordered, together with the significant impact which that short period, if served, is likely to have on the appellant’s employment, I am satisfied that good reason to suspend the sentence has been shown.

21. Accordingly, I would allow the appeal.  I would order that the sentence of imprisonment imposed by the magistrate be suspended upon the appellant entering into a bond to be of good behaviour for a period of nine months.  It will be a condition of the bond that the appellant be subject to the direction of a community corrections officer and that he perform 40 hours of community service within the period of nine months.

    The Cross Appeal

22. As noted earlier, the magistrate directed that the three year licence disqualification which he imposed was to commence at the time of the commencement of the immediate licence disqualification imposed by the police, namely, 9.48 am on 26 June 2006. 

23. In the cross-appeal, it was submitted that this direction of the magistrate was in error: first because the police had been in error in imposing a licence disqualification with a commencement date of 26 June 2006, and secondly because the magistrate did not, in any event, have power to direct a retrospective date of operation of the licence disqualification which he had imposed.

24. In order to address both points, it is necessary to have regard to s 47IAA of the RTA. That provision was considered by the Full Court in Police v Conway.[11] Subsequent to that decision, s 47IAA was amended by the Road Traffic (Notices of Licence Disqualification or Suspension) Amendment Act 2006 (SA), which came into operation on 14 December 2006. Insofar as the amendments were substantive, they would not ordinarily apply to an offence committed on 18 June 2006. However, Schedule 1 to the amending Act provides that the amendments apply to notices given, or purportedly given, under s 45B or s 47IAA of the RTA before or after the commencement of the amendment. The present appeal was conducted on the basis that it was s 47IAA as amended which was to be applied in this case.

    [11] [2006] SASC 186; (2006) 95 SASR 83.

25. Section 47IAA(2) authorises the police to give a person a notice of immediate licence disqualification or suspension. It provides:

    Subject to this section, if a police officer reasonably believes that a person has, after the commencement of this section, committed an offence to which this section applies, the police officer may give the person a notice of immediate licence disqualification or suspension in the prescribed form.

26. The offence committed in this case was a “Category 3 offence”.[12]  The notice given by the police to the appellant was not in evidence, but I gather that it was a notice of immediate licence suspension.  Although the notice of immediate licence suspension was given eight days after the police had stopped the appellant and detected his offence, no question of the validity of the notice of immediate licence suspension was raised on the appeal.  It has not been necessary for me to consider that issue.

    [12]   Road Traffic Act 1961 (SA), s 47A(1), s 47IAA(1).

27. When a person is given a notice of immediate licence suspension, that person’s driver’s licence is suspended “for the relevant period”. Section 47IAA (12) identifies the meaning of the expression “relevant period”. It provides:

    (12)    For the purposes of this section—

    (a)     the "relevant period" commences—

    (i)at the time at which the person is given the notice of immediate licence disqualification or suspension or, if the police officer giving the notice is satisfied that, in the circumstances, it would be appropriate to postpone the commencement of the relevant period and indicates in the notice that the commencement is to be postponed, 48 hours after the time at which the person is given the notice; or

    (ii)if the person is already disqualified from holding or obtaining a driver's licence or holds a driver's licence that is suspended, at the end of that period of disqualification or suspension; and

    (b)     the "relevant period" ends—

    (i)if the Magistrates Court, on application under section 47IAB, makes an order that the person given the notice is not disqualified, or that the driver's licence held by the person is not suspended, by the notice; or

    (ii)if the Magistrates Court reduces the period of disqualification or suspension on application under section 47IAB, when that period ends; or

    (iia)if the person given the notice is notified in writing by or on behalf of the Commissioner of Police (whether that notification is given personally or by post) that he or she is not to be charged with any offence to which this section applies arising out of the course of conduct to which the notice of immediate licence disqualification or suspension relates; or

    (iii)if proceedings for the offence to which the notice relates are determined by a court or are withdrawn or otherwise discontinued; or

    (iv)     in any event—

    (A)if the offence to which the notice relates is a category 2 offence—at the end of 6 months from the commencement of the relevant period; or

    (B)in any other case—at the end of 12 months from the commencement of the relevant period.

1. The effect of s 47IAA(12)(a)(ii) is that a period of police imposed disqualification or suspension must, in the case of a person who is already subject to a licence disqualification or order, commence at the end of that period of disqualification or suspension. Section 47IAA(12)(a)(ii) is important in this case because the appellant was, on 18 June 2006, already disqualified from holding or obtaining a driver’s licence (having been disqualified with effect from 24 April 2005 in consequence of a previous PCA offence). That licence disqualification was to expire on 23 April 2008. Section 47IAA(12)(a)(ii) meant that the immediate licence disqualification in his case had to commence on 23 April 2008.

2. The notice of immediate licence suspension given to the appellant indicated that the licence suspension was to commence “forthwith”. This was an error by the police. But it is not an error which alters the operation of s 47IAA. The commencement and conclusion of the relevant period is fixed by s 47IAA itself and, if a notice given is otherwise valid, does not depend upon the terms of the notice itself. Accordingly, the magistrate was in error in thinking that the period of licence suspension which occurred in consequence of the giving of the notice by the police had already commenced. For this reason alone, the cross-appeal should be upheld.

3. I am also satisfied that the magistrate did not in any event have power to make retrospective the period of licence disqualification which he imposed.

4. As the PCA offence committed by the appellant was his third PCA offence, and it was a “Category 3 offence”, a licence disqualification of at least three years had to be imposed.[13] Further, subject to the operation of s 47IAA(9) of the RTA, that period of licence disqualification could not be reduced or mitigated in any way.[14]

   [13]   Road Traffic Act 1961 (SA), s 47B(3)(a)(iii)(C).

   [14] s 47B(3)(b).

5. In effect, s 47IAA(9) modifies the effect of s 47B(3)(b) of the RTA in circumstances such as those of the present appellant. It provides that the Court must take into account the period of licence disqualification or suspension that has applied in consequence of the police notice and may impose a period of disqualification that is less than the mandatory minimum period of disqualification.  Put slightly differently, the Court must consider a period of disqualification or suspension already served in consequence of the police notice and may, despite s 47B(3)(b), impose a period of licence disqualification that is less than the mandatory minimum so as to give the offender “credit” for a period of disqualification or suspension already served. That “credit” may be given by shortening the period of court ordered disqualification. Section 47IAA does not contain any authority for the “credit” to be given by backdating the commencement of the disqualification. The RTA does not contain any other provision authorising the backdating of commencement of a period of disqualification. Section 169A of the RTA permits a court to order that the commencement of a period of disqualification be subsequent to the time of making of the order, but there is no equivalent with respect to retrospectivity.

6. At common law, it was not possible for a sentence of imprisonment to be backdated.[15] Hence, s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) provides:

   Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may—

   (a)make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or

   (b)direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.

   [15]   See R v Garrett (1978) 18 SASR 308 at 314 per Hogarth ACJ and White AJ; and R v Colson [1999] SASC 184; (1999) 73 SASR 407 at [16]-[24] per Doyle CJ.

7. Section 30(2) is an express grant of power to a court, in the circumstances to which it refers, to direct that a date of imprisonment have a retrospective date of commencement. As I have said there is no equivalent provision with respect to licence disqualification.

8. For these reasons, it was not open to the magistrate to order that the period of disqualification which he had imposed should commence on 26 June 2006.  The sentencing options open to the magistrate were to order that the period of disqualification should commence on the date of his order, or, alternatively, on some prospective date.

9. It may be that the magistrate had in mind s 47IAA(9) in its form prior to amendment by the Road Traffic (Notices of Licence Disqualification or Suspension) Amendment Act 2006 (SA). Section 47IAA(9) then provided:

   The period for which a disqualification or suspension has applied to a person under this section as a result of the person having been given a notice of immediate licence disqualification or suspension will be counted as part of any period of disqualification that is imposed on the person in relation to the offence to which the notice relates by order of a court under this Division.

   In its previous form s 47IAA(a) provided, in effect, that a period of police imposed suspension was to be “counted as part of any [court ordered] period of disqualification in relation to the same offence”. It seemed implicitly to contemplate retrospective operation of the court ordered period of disqualification. This is so because it is difficult to see how a police ordered period could be “counted” as part of a court ordered period of disqualification for the minimum statutory period unless there was an order for retrospective operation. However, for the reasons already noted, it is s 47IAA(9) in its amended form which had to be applied in this case. The current s 47IAA(9) does not permit an order to be made that a period of licence disqualification commence on a retrospective date.

10. The cross-appeal should be allowed.  No reason has been shown for directing other than that the three-year minimum period of disqualification should commence on 23 April 2008, ie, when the appellant completes service of his current period of disqualification.

11. During the course of the hearing of the appeal, the question of whether s 47IAA contemplated that the period of police ordered suspension may have a concurrent operation with the court ordered period of disqualification in circumstances such as the present was raised. It has not been necessary for me to determine this question in these reasons. I have refrained from doing so.

    Conclusion

12. For the reasons given above, I allow the appeal.  I order that the period of 10 days imprisonment ordered by the magistrate be suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of nine months and, as a condition of that bond, that the appellant be subject to the directions of a community corrections officer and perform, within the period of nine months, 40 hours of community service.

13. I also allow the cross-appeal.  I set aside the order of the magistrate that the period of disqualification commence on 26 June 2006.  I order that the three year period of disqualification from holding or obtaining a driver’s licence imposed by the magistrate should commence on 23 April 2008.