Mills v Police No. Scciv-03-335

MILLS v POLICE
[2003] SASC 175
Magistrates’ Appeal
Criminal

SULAN J. This is an appeal from a decision of the Magistrates Court against a sentence imposed upon the appellant for a number of offences. The first complaint alleged offences of driving whilst disqualified, failing to submit to an alcotest and failure to truly answer questions, which occurred on 1 December 2001. A notice had also been served upon the appellant alleging failure to comply with community service orders. It was alleged that he failed to perform 209.5 hours of a total of 237.5 hours of community service within the time required to complete that service. A further complaint alleged that on 7 October 2002 at Seaford the appellant stole toiletries, sunglasses and fishing accessories together of the value of $177.13, the property of Mobil.
The Decision
On 27 February 2003 the appellant pleaded guilty to all offences. He acknowledged non‑compliance with the community service orders.
The learned Magistrate imposed the following penalties:
In respect of driving whilst disqualified he ordered that the appellant be imprisoned for 1 month, and the sentence to commence forthwith. For the other two offences of 1 December 2001 he imposed one penalty of a fine of $1,500. The learned Magistrate also disqualified the appellant from holding or obtaining a driver’s licence until further order.
For the offence of larceny committed on 7 October 2002 he imposed a fine of $200.
For the breaches of each of the community service orders he imprisoned the appellant for 27 days to commence forthwith.
The effect of the Magistrate’s orders was that the appellant was to serve 1 month in custody. The appellant had served 21 days imprisonment before he was released on bail pending this appeal.
The facts alleged by the prosecution are that at about 11.00pm on 1 December 2001, police officers followed a blue Ford sedan along Quinleven Road at Aldinga Beach. The driving appeared to be erratic. The police signalled the driver to stop. The officers noticed that the driver’s speech was slurred and that he smelt strongly of liquor. The appellant, who was the driver, gave the police a false name. They advised him that they intended to conduct an alcotest. Whilst they were preparing the alcotest he ran off. A passenger in the car gave the police the appellant’s correct name. The police left a message with the passenger for the appellant to voluntarily attend at the police station. Inquiries revealed that the appellant was disqualified from holding or obtaining a driver’s licence. The following day the appellant attended at the Aldinga Police Station and admitted that he had given the police a false name. He told the police that he knew that he was disqualified from driving at the time he drove.
As to the offence of larceny it was alleged that on 7 October 2002 two men entered a Mobil Service Station at Seaford, one of whom was the appellant. The attendant saw the appellant near the fishing section display. She noticed that his pockets appeared to be bulging. He left the store without making any payment. The attendant informed the police and the appellant was apprehended nearby.
As to the failure to complete community service, the appellant acknowledged that he had been ordered to complete 237.5 hours of community service. He had obtained an extension of time to 10 July 2002 but had only completed 28 hours of the service ordered by the court.
The appellant’s counsel, Ms Waite, submitted to the Magistrate that the appellant had gone to a social gathering with a friend who was the driver of the car. The appellant had consumed some alcohol. During the evening, as a result of an incident that had occurred at the party, the host demanded that all guests leave. The appellant discovered that his friend who was to drive him home had left earlier in the evening. Ms Waite submitted that the appellant had then made the decision to drive home. His home was only about two miles away, and he had been unable to call a taxi. She submitted that the driving was not contumacious, in that the appellant had made arrangements to be driven to and from the party but those arrangements had changed through no fault of the appellant. The appellant had made a sudden and impulsive decision to drive. Ms Waite submitted that the appellant had a neurological impairment, which had a bearing on his judgment in deciding to drive. It was put to the Magistrate that for some months prior to the offence the appellant had made special arrangements so that he could be driven to and from work and he was therefore complying with the orders of the court. His decision that night was a momentary lapse in judgment.
In sentencing the appellant the Magistrate accepted that a friend had driven the appellant to the party and that that friend had left the party early. The Magistrate acknowledged that the appellant had presented himself to the Aldinga police the following day. He referred to the appellant’s problems with alcohol and to two medical reports, one dated 30 May 2002 from Mr Mark Reid, a neuro‑psychologist and the other of 5 June 2002 from the appellant’s general practitioner. The report from the general practitioner referred to an incident on 6 February 2001 when the appellant was the victim of an assault in which he had sustained injuries that required surgery. The appellant was in hospital for approximately nine days. Mr Reid stated in his report that he had not completed his assessment, but that his preliminary conclusions were that the appellant suffered from a post‑traumatic disorder as a consequence of the assault. He described the appellant as suffering from a number of symptoms consistent with an acquired brain injury, but he was unable to arrive at any final conclusion. He described the appellant as fearful, anxious and, from time to time, depressed.
Ms Waite filed an affidavit in which she deposed that on 27 February 2003 she made an application for an adjournment of all matters on the grounds that she needed to obtain further instructions. The Magistrate refused the application, so she proceeded on the material that was available to her at that time.
The Magistrate had regard to the report of Mr Reid. He noted that the report was dated May 2002 and that there was no updated report. He found that the injuries were suffered in February 2002, which was after the date of the driving offences in December 2001. The Magistrate made an error as to the date because the assault had occurred on 6 February 2001. Any residual injury suffered by the appellant in the assault may therefore have been relevant to the appellant’s conduct on the day that he drove and the Magistrate was therefore in error in not taking it into account.
The Magistrate concluded that the appellant’s conduct was contumacious. He reasoned that because the party was at Aldinga Beach and that the appellant lived at Aldinga Beach there was no reason why the appellant could not have walked home.
As to the failure to complete community service the Magistrate had regard to the report of Mr Reid. He noted that some four days of community service had been completed in April and July 2002, after the head injuries had been sustained. He determined that the breach was not trivial nor were there proper grounds upon which the failure to complete community service should be excused.
The Appeal
At the hearing before me a further report of Mr Reid dated 18 November 2002 was tendered by consent. This report would have been available to the Magistrate if an adjournment had been granted to enable Ms Waite to obtain further instructions. Mr Reid concluded that the assault in 2001 had had a profound emotional effect on the appellant, which remained unabated as at the date of the report. He was of the opinion that the appellant was suffering from an adjustment disorder, that he suffered from anxiety and stress, and was overwhelmed by his mental state regarding outstanding legal issues and outstanding community service requirements. He reported that the appellant was highly unlikely to be able to carry out usual domestic, social and recreational activities, and that he was not in a mental state to undertake formal employment. In my view these are matters that were relevant to whether there were proper grounds to excuse the appellant’s failure to complete the community service orders.
I conclude the Magistrate erred in failing to have sufficient regard to the opinions of Mr Reid. Accordingly, I consider that the sentencing process has miscarried. I therefore set aside the sentences. I am required to exercise the sentencing discretion afresh[1].
[1] Papastamatis v Police [2003] SASC 102.
Contumacious Conduct
In Police v Cadd and Others[2] a specially constituted Full Court held that on a charge of driving whilst disqualified, in the case of a first offender, an immediate custodial sentence was not an almost inevitable consequence of conviction. The learned Chief Justice said[3]:
“I accept that the offence of driving while disqualified is one that ordinarily warrants imprisonment, in the sense explained above, and that its seriousness may make it difficult to justify suspension of the sentence of imprisonment. I accept that circumstances justifying suspension are unlikely to be found in what are routine or run of the mill aspects of the circumstances of this offence. But individual consideration must still be given to these matters, and, in particular, to the circumstances of the offender. Matters such as previous good character, the likelihood of the offender responding to a final warning (given by means of a suspended sentence), the community interest in rehabilitation without imprisonment, the traditional reluctance to imprison an offender for the first time, the consequences for an offender and the offender’s family (where relevant) of imprisonment and other matters all require careful consideration under s38 of the Sentencing Act.”
[2] (1997) 192 LSJS 230.
[3] (1997) 192 LSJS 230 at 247.
In the addendum to his judgment Doyle CJ said[4]:
“Nevertheless, each member of that majority accepts, as Mullighan J says, that 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...’”
[4] (1997) 192 LSJS 230 at 251.
Mullighan J expressed the position as follows[5]:
“Upon reconsideration of the sentencing standard for this offence, it is appropriate to ask whether there should be any standard fixed by this Court at all or should punishment be left to Magistrates without any guidance. I think there should be a standard fixed for their guidance given the seriousness of the offence and its apparent prevalence.
That standard, accepting these matters and giving appropriate emphasis to general deterrence 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 such as a substantial fine or community service in the appropriate case. I use the word ‘contumacious’ in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at pp542‑3. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in ss10 and 11 of the Criminal Law (Sentencing) Act and established sentencing principles are sufficient further guide to the sentencer.”
[5] (1997) 192 LSJS 230 at 259-260.
Bleby J said[6]:
“In the case of the contumacious offender (in the sense described by Mullighan J) imprisonment will, in most cases, be appropriate for a first offender unless quite extraordinary personal or other circumstances demand otherwise.”
[6] (1997) 192 LSJS 230 at 294.
In Theophilus v Police[7] Olsson J in referring to Police v Cadd (supra) said that if driving was contumacious then a sentence of imprisonment would almost inevitably follow a conviction for the offence of driving whilst disqualified. He reaffirmed his earlier decision in Valentincic v Police[8], that driving will be held to be contumacious where there has been a “flagrant and wilful disobedience of an order of suspension, in the sense that a person deliberately drives a motor vehicle in circumstances which are more than trivial and which involve a knowing and, in a sense, defiant breach of the order”.
[7] [1998] (unreported S6521, Olsson J, 20 January 1998).
[8] [1997] (unreported S6477, Olsson J, 4 December 1997).
In Johns v Police[9] Lander J alluded to the difficulty of determining whether the circumstances of this type of offending are such as to exhibit contumacy. In my opinion, as Lander J correctly points out, the offence almost always requires a wilful disobedience of the order for suspension and it is difficult to “determine the line between wilful disobedience and a contumacious breach of the order”.
[9] [1998] (unreported S6729, Lander J, 24 June 1998).
I agree with Lander J that the test of contumacy is directed to the attitude of the offender at the time of driving. The attitude of the offender will be determined by the circumstances in each particular case. The driving may be contumacious even if it is over a short distance. It may not be contumacious if it is over a long distance. For example, if a person lives a long way from a doctor’s surgery and it is necessary to urgently obtain medical treatment, then it may not be contumacious conduct if in an emergency that person were to drive to the doctor’s surgery, honestly believing that that course of action was necessary. However, it may be contumacious conduct if someone who has been suspended from driving drives a motor vehicle a very short distance because they are too lazy to walk, and in so doing they exhibit a total disregard of the order of the court.
In the present case, I accept that the appellant suffered psychological problems and that his judgment may have been impaired, to a degree. On the other hand, the appellant was acutely aware of the requirement that he not drive a motor vehicle. Even though it was accepted that the appellant found himself in a position where his driver had left without informing him, there were alternatives open to the appellant. There was another person in the motor vehicle and no explanation has been given as to why that other person could not have driven. Furthermore, there were other people at the party. No explanation was given as to why the appellant could not have obtained a lift with someone else. I also do not accept the appellant could not have found a public telephone or sought permission from the owner of the house to use the telephone to obtain a taxi. The appellant’s conduct in giving a false name suggests that the appellant was well aware of the seriousness of his position. In my view, those factors suggest an attitude on the part of the appellant which exhibited a deliberate disregard of the court’s order. I consider that the Magistrate was correct in holding that the driving was contumacious.
I also consider that the Magistrate was correct in concluding that an immediate custodial sentence was appropriate. However, as I have noted the Magistrate failed to take into account the report of Mr Reid in considering the appellant’s ability to make judgments on the night. The appellant has served 21 days of the sentence of 28 days imposed by the Magistrate. I consider that the period he has spent in custody is sufficient. In that regard I would reduce the sentence of imprisonment imposed by the Magistrate to 21 days.
The Imposition of Pecuniary Penalties
As to counts 2 and 3 of the first complaint, the Magistrate imposed fines upon the appellant. Section 13 of the Criminal Law (Sentencing) Act 1988 provides that a pecuniary sum, which includes a fine, must not be ordered by the court if the court is satisfied that the defendant does not have the means to comply with the order or it would unduly prejudice the welfare of dependants of the defendant. In Rudling v Police, Perry J determined that the question to be asked when imposing an order for a pecuniary sum is whether in the light of the appellant’s then and possible future circumstances the chances reasonably are that he would be unable to pay[10].
[10] [1993] (unreported S4170, Perry J, 9 September 1993).
In his report of 18^th November 2002, Mr Reid expressed the opinion that the appellant was unable to carry out his usual domestic, social and recreational activities and was not currently in a mental state to allow him to undertake formal employment. Mr Reid concluded that as a consequence of the assault the appellant was unfit for work. This opinion was not challenged and I have regard to it. The appellant is still unable to engage in full time employment and is reliant upon social service payments.
I conclude that the appellant is unable and unlikely to be able to pay a fine. I set aside the fines imposed on counts 2 and 3 and the fine imposed for the offence of larceny.
Failure to complete community service
Section 71 of the Criminal Law (Sentencing) Act 1988 provides that community service is enforceable by imprisonment in default of compliance, and the period of imprisonment is to be calculated upon the basis of one day for each eight hours of community service to be served. Section 71(7) provides that if the Court is satisfied that the failure of the person to comply with an order requiring performance of community service was trivial, or that there are proper grounds on which the failure should be excused, the Court may extend the time or cancel the whole, or a number, of the unperformed hours of community service under the order.
The appellant submitted that proper grounds existed and that the Magistrate failed to have regard, or sufficient regard, to the appellant’s mental condition. In my view the Magistrate did not have sufficient regard to the opinion of Mr Reid, that a number of the symptoms described by the appellant were consistent with an acquired brain injury. If the Magistrate had made further inquiries and sought a further report, he would have been provided with the report of Mr Reid of 18 November 2002. As I have indicated, Mr Reid expressed the opinion that the appellant would be highly unlikely to be able to carry out his usual domestic, social and recreational activities or to undertake any form of employment. I therefore consider that there are proper grounds based on the appellant’s psychological and psychiatric condition to excuse the breach and to cancel the unperformed hours of community service.
Orders
The appeal is allowed.
The orders are as follow:
(1)    With respect to the first complaint, taking into account that the appellant has spent 21 days in custody for the offence of driving whilst disqualified, I direct a conviction without further penalty. With respect to counts 2 and 3 of the first complaint, failing to submit to an alcotest and failure to truly answer questions I convict the appellant without further penalty. The order that the appellant be disqualified from driving until further order is affirmed.
(2)    With respect to the second complaint, the breach of the community service order, I excuse the breach and cancel the 209.5 hours of uncompleted service. The sentence of 27 days imprisonment is quashed.
(3)    With respect to the third complaint of larceny, I quash the fine. I impose a sentence of seven days imprisonment, to be served concurrently with the 21 days imprisonment imposed on the earlier complaint. Having regard to the period already served I therefore convict the appellant without penalty.

[2003] SASC 175

6 June 2003