Nash v Police

Case [2009] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

NASH v POLICE

[2009] SASC 112

Judgment of The Honourable Chief Justice Doyle

4 May 2009

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES

Appellant pleaded guilty in the Magistrates Court to two offences against s 91 of the Motor Vehicles Act 1959 (SA) - appellant had been convicted of a previous offence against s 91 - Magistrate concluded that offending conduct was ‘contumacious’ - Magistrate imposed a sentence of 21 days’ imprisonment in respect of each offence - Magistrate ordered that the second sentence of imprisonment be served concurrently with the first - Magistrate declined to suspend the sentences of imprisonment imposed - appeal against sentences imposed by Magistrate - whether offences correctly characterised as ‘contumacious’ - whether Magistrate erred in declining to suspend sentences of imprisonment imposed.

HELD: whether an offence against s 91 can be characterised as contumacious depends on the attitude of the offender, as manifested by the reason given by the offender for the offence and by the circumstances of the offence - for the purposes of s 38(1) Criminal Law (Sentencing) Act 1988 (SA), ‘good reason’ to suspend a sentence of imprisonment imposed in respect of a contumacious breach of s 91 could be found only in the personal circumstances of the offender - personal circumstances less persuasive when relied upon by a repeat offender - offences correctly characterised as contumacious - solid foundation for the Magistrate’s conclusion that good reason to suspend the sentences of imprisonment did not exist - appeal dismissed.

Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) s 471AA(2), s 471AA(4)(b), s 168(1)(c); Criminal Law (Sentencing) Act 1988 (SA) s 38(1), referred to.
Police v Cadd (1997) 69 SASR 150; Long v Police (1998) 72 SASR 515, applied.
Police v Castelluzzo (1997) 193 LSJS 13; Woodward v Police (2000) 210 LSJS 16, distinguished.
Bates v Police (1997) 70 SASR 66; Van Lammeren v Police (SA) (1999) 28 MVR 549; Harshazi v Police (1998) 71 SASR 316; Sheean v Police (1999) 106 A Crim R 38, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED

"contumacious"

NASH v POLICE
[2009] SASC 112

Magistrates Appeal:  Criminal

  1. DOYLE CJ:          Mr Nash pleaded guilty in the Magistrates Court to one count of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence, and one count of driving a motor vehicle while his driver’s licence was suspended.  In respect of each offence, a magistrate sentenced Mr Nash to 21 days imprisonment.  The Magistrate ordered that the sentence in respect of the later offence be served concurrently with the sentence imposed in respect of the earlier offence.  The Magistrate refused to suspend the sentence of imprisonment that he imposed.  The Magistrate further ordered that Mr Nash be disqualified from holding or obtaining a driver’s licence for a period of six months, commencing on 17 July 2009. 

  2. Mr Nash appeals against the refusal of the Magistrate to suspend the…

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AGLC
Nash v Police [2009] SASC 112
Case
[2009] SASC 112
Decision Date

CaseChat Overview and Summary

Mr Nash appeals against the decision of the Magistrate to refuse to suspend the sentences of imprisonment imposed on him. The Magistrate had convicted Mr Nash of two separate offences against section 91 of the Motor Vehicles Act 1959 (SA), both of which involved driving while disqualified from holding or obtaining a driver’s licence. The Magistrate concluded that Mr Nash’s conduct was contumacious and imposed a sentence of 21 days’ imprisonment for each offence, to be served concurrently. The Magistrate declined to suspend the sentences of imprisonment. The Court was required to determine whether the Magistrate correctly characterised the offending conduct as contumacious and whether the Magistrate erred in declining to suspend the sentences of imprisonment imposed. The Court considered the nature of the offences, Mr Nash’s previous driving history, and the Magistrate’s reasons for declining to suspend the sentences of imprisonment. The Court held that an offence against section 91 can be characterised as contumacious depending on the attitude of the offender, as manifested by the reason given for the offence and the circumstances of the offence. For the purposes of section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA), ‘good reason’ to suspend a sentence of imprisonment imposed in respect of a contumacious breach of section 91 could be found only in the personal circumstances of the offender. The personal circumstances were less persuasive when relied upon by a repeat offender. The Court found that the offences were correctly characterised as contumacious and that the Magistrate had a solid foundation for concluding that good reason to suspend the sentences of imprisonment did not exist. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Mr Nash appeals against the refusal of the Magistrate to suspend the sentence of imprisonment that he imposed. He does not challenge the decision to impose a sentence of imprisonment, nor its length, nor does he challenge the orders disqualifying him from holding or obtaining a driver’s licence. BackgroundThe first offence On 26 July 2007 a police officer was parked in a car park on the corner of two main roads. The police officer saw a car enter the car park from one of the main roads and ‘cut through’ to get to the other main road enclosing the car park. The police officer checked the registration of the car. The check revealed that the owner of the car, Mr Nash, was disqualified from holding or obtaining a driver’s licence. The police officer followed the car and stopped it shortly after. Mr Nash was driving the car at the time. He told the officer that he was driving to visit a friend. He acknowledged that it was stupid for him to have driven. The Magistrates Court had disqualified Mr Nash from holding or obtaining a driver’s licence for one year. The disqualification imposed was to expire on 16 October 2007. I will return to the circumstances of this disqualification when I consider Mr Nash’s history of prior offending. Mr Nash was charged with one count of driving while disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act 1959 (SA) (“the MVA”). Since Mr Nash had previously been convicted of an offence against this section, the maximum penalty for this offence is two years imprisonment. Mr Nash pleaded guilty on 3 September 2008. The second offence On 1 August 2008, a police officer on patrol in Mt Barker saw the driver of a car commit a minor traffic offence. The driver of the car was Mr Nash. The police officer stopped the car and issued an infringement notice in relation to the traffic offence. He conducted a licence check on Mr Nash which indicated that Mr Nash was disqualified from holding or obtaining a licence. Mr Nash confirmed that he was so disqualified. Mr Nash’s licence was in fact suspended, but the distinction is irrelevant for present purposes. A police officer had suspended Mr Nash’s driver’s licence after the police officer intercepted Mr Nash driving with the prescribed concentration of alcohol in his blood on 5 July 2008. This was only four weeks before the second offence. Mr Nash was charged on a complaint with one count of driving a motor vehicle on a road while his licence was suspended, contrary to s 91 of the MVA. The maximum penalty for this offence is two years imprisonment. Mr Nash pleaded guilty to this charge on 4 February 2009, at which time he was sentenced in relation to both this offence and the first offence. Previous driving offences Mr Nash has several convictions for driving offences. In December 2002, Mr Nash appeared before the Magistrates Court charged with driving whilst having in his blood the prescribed concentration of alcohol, driving without due care, and another less serious traffic offence. Mr Nash was fined and disqualified from holding or obtaining a driver’s licence for a period of six months.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I add that even if I was persuaded that the Magistrate’s reasons reflected an error in failing to consider circumstances that might support an order suspending the sentences of imprisonment, I would have come to the same conclusion as did the Magistrate, were I to engage in the exercise of re‑sentencing Mr Nash. Having carefully considered all relevant circumstances, I agree with the Magistrate’s conclusion that good reason to suspend the sentences that he imposed cannot be made out. Conclusion For those reasons I would dismiss the appeal against sentence.

Ratio Decidendi

Legal Principle Established

Mr Nicholas submits that the factors personal to Mr Nash, on which Mr Algie relied in support of a decision to suspend a period of imprisonment, do not amount to good reason to do so, particularly as these were second or subsequent offences. He submits that the Magistrate took into account the factors raised by Mr Nash, and did not fall into error in declining to suspend the period of imprisonment. Consideration of submissions The significance of characterising an offence of driving while disqualified as contumacious arises because of the decision of the Full Court of this Court in Police v Cadd (1997) 69 SASR 150. There, it was common to the reasons of a majority that a sentence of imprisonment would be imposed “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…”: Doyle CJ at 171, Mullighan J at 179. It is worth noting that the approach of the majority applies in terms to those whose offending represents a first offence against s 91 of the MVA. It follows that whether the offending conduct for which the Magistrate sentenced Mr Nash was rightly regarded as contumacious assumes less importance. I will nevertheless deal with the question of whether the offences can be characterised as contumacious as I consider that this is a matter properly to be taken into account in addressing the question of suspension. As Mullighan J said in Long v Police (1998) 72 SASR 515 at 519:I have embarked upon this discussion because it was accepted in argument before me that whether the offending is contumacious is a relevant consideration upon a second offence. It is at least in the sense that if the offending is contumacious, a sentence of imprisonment actually to be served is almost inevitable. I note that in Johns v Police, Lander J took the view that on each occasion the court is called upon to consider the penalty for his offence, whether for a first or subsequent offence, the court will have to determine which circumstances amount to a contumacious breach (at p 4). The meaning of “contumacious” when used in this context was explained by Mullighan J in Cadd, whose judgment in this respect represents the approach common to the majority. He said at 179:I use the word "contumacious" in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at 542-543. 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. … There have been some differences of opinion as to what constitutes a contumacious breach of s 91 of the MVA. For example, see Bates v Police (1997) 70 SASR 66, Perry J at 73; Van Lammeren v Police (SA) (1999) 28 MVR 549, Olsson J at [24]; Harshazi v Police (1998) 71 SASR 316, Mullighan J at 319-320; and Sheean v Police [1999] SASC 187; (1999) 106 A Crim R 38, Perry J at [15]-[17].