Nash v Police - [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

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.
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.
Background
The 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.
Mr Nash again appeared before the Magistrates Court on 17 October 2006. On this occasion he was convicted of, among other offences, driving with the prescribed concentration of alcohol in his blood and driving while disqualified. It appears that Mr Nash was driving in breach of a disqualification from holding or obtaining a driver’s licence imposed administratively.
The conviction for the offence of driving while disqualified means that Mr Nash is liable to be sentenced in respect of the offences under consideration on the basis that they are ‘subsequent offences’ against s 91 of the MVA. A subsequent offence against s 91 attracts a maximum penalty of two years imprisonment. Mr Nash was also convicted of stating a false name to a police officer after the officer required that Mr Nash give his name to the officer. The Magistrate imposed a fine of $800 and disqualified Mr Nash from holding or obtaining a driver’s licence for twelve months commencing on 17 October 2006.
It was during this period of disqualification that Mr Nash committed the first offence.
On 5 July 2008, after the expiry of the licence disqualification imposed by the Magistrates Court in relation to the above offences, Mr Nash was again detected driving while having in his blood the prescribed concentration of alcohol. The police officer who detected Mr Nash gave him a notice pursuant to s 47IAA(2) of the Road Traffic Act 1961 (SA) (“the RTA”). The effect of the notice given to Mr Nash was that Mr Nash’s driver’s licence was suspended: s 47IAA(4)(b) of the RTA. The suspension was for a period of six months. The police officer who issued the notice explained to Mr Nash the significance of the notice, and the importance of not driving during the period that Mr Nash’s licence was suspended. It was during this period that Mr Nash was apprehended in relation to the second offence charged.
Submissions in mitigation
Counsel who appeared for Mr Nash in the Magistrates Court raised three matters in mitigation of sentence.
In relation to the first offence, counsel informed the Magistrate that Mr Nash had been telephoned by a friend who asked Mr Nash to come and see him because he was in some kind of trouble. Counsel said that this was the first time that Mr Nash drove during the period of disqualification.
In relation to the second offence, counsel informed the Magistrate that Mr Nash and his partner had been at a hotel the previous night, and Mr Nash’s partner was unable to drive her car home as she had drunk too much alcohol to be able to do so. Mr Nash’s partner had to work the next day. She did not want to leave her car in the hotel car park during the weekend because of concerns that she had for the security of the car. Mr Nash decided that he would drive the car home from the hotel.
Counsel informed the Magistrate that, on the occasion for which Mr Nash was convicted of stating a false name to police, Mr Nash gave the police officer the name and address of his step-brother. Mr Nash later telephoned the police and informed them that he had lied about his identity.
The Magistrate’s reasons
In sentencing Mr Nash, the Magistrate noted that Mr Nash was 27 years old. The Magistrate had regard to a letter which was provided by the managing director of Mr Nash’s employer. The letter spoke positively about Mr Nash and his work ethic. At the time that he was sentenced, Mr Nash had been in a relationship with a woman for 18 months. The Magistrate noted that Mr Nash had pleaded guilty to both of the offences, and therefore was entitled to a reduction in the penalty that the Magistrate was to impose.
After having considered Mr Nash’s poor record in relation to driving offences, the Magistrate said that the two offences were committed after the significance of the disqualification or suspension had been explained to him on each occasion. Mr Nash knew that driving while disqualified from holding a licence or while one’s licence was suspended was a serious matter. The Magistrate considered that the offences represented a “flagrant disregard” of the disqualification imposed by the Magistrates Court and of the suspension imposed by the police, and that it followed that Mr Nash’s offending was contumacious.
Given the poor record of Mr Nash, the Magistrate considered that there was “no alternative but to order imprisonment … to act as a deterrent.” In relation to each of the offences, the Magistrate adopted a starting point of one month’s imprisonment. After taking into account Mr Nash’s pleas of guilty, in each case the Magistrate imposed a sentence of imprisonment for 21 days. The Magistrate ordered that the sentence of imprisonment which he imposed in respect of the second offence be served concurrently with the sentence imposed in relation to the first offence.
The Magistrate turned to the question of whether, for the purposes of s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) there was “good reason” to suspend the sentence of imprisonment that he imposed. The Magistrate concluded that, given the number of offences that Mr Nash had committed, no good reason to suspend the sentences of imprisonment existed. The Magistrate considered that Mr Nash needed to understand that serious consequences would follow the commission of offences of the type for which Mr Nash was sentenced. The Magistrate declined to suspend the sentences of imprisonment that he imposed.
Relying on s 168(1)(c) of the RTA, the Magistrate disqualified Mr Nash from holding or obtaining a driver’s licence for a period of 6 months commencing 17 July 2009.
Submissions on appeal
Mr Algie, counsel for Mr Nash, submits that the Magistrate erred in finding that the offences committed by Mr Nash were contumacious or that they involved a “flagrant disregard” of the court order and police suspension. Mr Algie submits that the explanation of the offending given to the Magistrate “made the driving understandable” and that accordingly, the offending should not have been regarded as contumacious. The offending, he submits, was foolish or an error of judgment rather than contumacious.
He submits that the appropriate enquiry or consideration is the attitude of the offender to the order or decision that gave rise to the licence disqualification, and that however characterised, Mr Nash’s attitude was not one that disclosed an attitude of flagrant disregard.
Mr Algie therefore submits that the offences committed by Mr Nash cannot be regarded as so serious that any sentence of imprisonment imposed on Mr Nash could not be suspended.
Mr Algie referred to Mr Nash’s personal circumstances. He was 27 years of age, with a good employment record. His employer had provided a reference attesting to his good character. Mr Algie made the point that the employer was present in court, indicating his support for Mr Nash, and reinforcing his prospects of continuing employment. Mr Nash was living in a stable domestic relationship. Prior to appearing before the Court in connection with these offences, Mr Nash had been before a court on only two other occasions. He had never been sentenced to imprisonment. Mr Algie submits that a court should be reluctant to imprison an offender for the first time.
Mr Algie also argues that the Magistrate’s remarks on the question of suspension disclose an erroneous approach to the matter. When dealing with the question of suspension of the sentence, the Magistrate referred only to the fact that Mr Nash had committed several offences in recent years, and to the circumstance that the two offences before the Magistrate were “too serious” to permit him to suspend the sentences of imprisonment.
Mr Algie argues that the Magistrate failed to consider the explanation for each offence, the important matter of Mr Nash’s attitude to the orders which he had breached, and his personal circumstances. He argues that the omitted matters were relevant and significant, and that in ignoring them the Magistrate has erred.
Mr Algie put considerable weight on Mr Nash’s personal circumstances, as he was entitled to do. I have summarised them above. He submits that they provided firm support for a decision to suspend the sentences that the Magistrate imposed, and that the Magistrate apparently overlooked this when considering the question of suspension. He submits that even if Mr Nash’s attitude could be said to be contumacious, his personal circumstances still called for consideration, and still supported a decision to suspend.
Mr Nicholas, counsel for the respondent, submits that the prior conviction for an offence against s 91 of the MVA is significant because it should be unusual for a court to suspend a sentence of imprisonment imposed in respect of a subsequent offence against s 91 of the MVA.
Mr Nicholas submits that Mr Nash’s offences were correctly characterised by the Magistrate as being contumacious. He makes the point that Mr Nash was warned by the Court on 17 October 2006 about the likely consequence of breaching the Court’s order. He was warned by a police officer on 5 July 2008 of the consequence of breaching the suspension order. In relation to the first offence, he submits that Mr Nash would have had alternatives other than to drive to his friend’s house. Mr Nicholas submits that the second offence was a planned act on the part of Mr Nash. He submits that neither instance of driving was trivial, nor were either of the offences committed in circumstances of emergency or necessity, or anything approaching that. He submits that there was nothing in the circumstances of the offences that could support a decision to suspend the sentences. If the sentences were to be suspended, the basis must be found in Mr Nash’s personal circumstances.
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].
It is unnecessary to attempt to resolve those differences in this case. It suffices to say that I consider that the attitude of the offender to the disqualification or licence suspension is of particular significance. The attitude of the offender is to be determined by an assessment of the circumstances of the breach and the reason given by the offender for the breach.
I consider that both offences were properly characterised by the Magistrate as being contumacious.
In relation to the first offence, Mr Nash knew that he was disqualified from holding or obtaining a licence. He told the police officer who apprehended him that it was stupid for him to have driven. There is nothing to suggest that the situation involving his friend gave rise to an emergency or to a pressing need to drive. The circumstances indicate an attitude to the Court’s order that can be described as cavalier or off-hand.

The circumstances of the second offence point even more strongly towards a conclusion that the offence was contumacious. It was only four weeks prior to the commission of this offence that a police officer gave Mr Nash a notice which had the effect of suspending Mr Nash’s driver’s licence. The significance of the notice had been explained to Mr Nash. There was no good reason for Mr Nash to retrieve the car from the hotel. In the circumstances, it appears that Mr Nash took a calculated risk to drive. Once again, his attitude to the order was cavalier or off-hand.
There is another aspect of the matter that is relevant. Mr Nash has a poor driving record. As Mr Nicholas pointed out, in each year from 2003 Mr Nash has undergone a period of licence disqualification or suspension, for one reason or another. That erodes, to some extent, the force of the personal circumstances relied on by Mr Algie.
More significantly, Mr Nash was not a first offender against s 91 of the MVA. Each of the offences dealt with by the Magistrate was a subsequent offence against s 91. That does not make Mr Nash’s attitude to the disqualification orders irrelevant, or even unimportant. But judges of this Court have said on numerous occasions that a person who comes before the court charged with a subsequent offence against s 91 of the MVA will find it more difficult to escape imprisonment than will a first offender.
In Cadd, Lander J was in dissent. His Honour did not consider that any guideline should be set by the Court. Significantly, his Honour noted at 201:
For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing magistrate that good reason exists for suspending the sentence, increase. A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence. That is because a second offence would ordinarily exhibit contumacy on the part of the offender. So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. Again however, in my opinion, having regard to the fact that this type of offence is simply one which must be considered in relation to the circumstances of the offence and the circumstances of the offender it would be inappropriate to attempt to lay down any further guidelines than that.
Bleby J, who was also in dissent, made similar remarks at 209.
It is worth noting that in Cadd Mullighan J remarked at 180:
Of course, different considerations must apply to the offender who is before the court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.
I turn now to the question of whether the Magistrate erred in declining to suspend the sentence of imprisonment that the Magistrate imposed. Mr Algie relied on Police v Castelluzzo (1997) 193 LSJS 13 at 19-20, a case decided after Cadd, as authority for the proposition that a sentence of imprisonment imposed in respect of a contumacious breach of s 91 of the MVA could nevertheless be suspended if the personal circumstances of the offender disclose good reason to suspend the sentence. In Castelluzzo the respondent was sentenced on two counts of driving while disqualified, and the reasons of the Court indicate that the Court considered in relation to each offence whether the personal circumstances of the offender disclosed good reason to suspend the sentence of imprisonment that was imposed. However, it should be noted that while the Court concluded that an order suspending the sentence of imprisonment in respect of the first conviction was appropriate, it concluded that the sentence of imprisonment in respect of the second offence should not have been suspended: at 20. Mr Algie referred also to the decision in Woodward v Police [2000] SASC 246; (2000) 210 LSJS 16. In that case the offending conduct was said to be contumacious, but the Court concluded that despite that, having regard to the offender’s personal circumstances, the sentence of imprisonment that was imposed should have been suspended: at 21-23. However, in that case the breach of s 91 of the MVA that was under consideration was a first offence.
I do not disagree with anything that is said in Castelluzzo or in Woodward. But as those decisions illustrate, if the offences under consideration result from, and evidence, an attitude to a disqualification order of the kind that I have described, the justification for an order suspending a sentence of imprisonment (if imprisonment is appropriate) can be found only in the personal circumstances of the offender, and it will be more difficult in such a case to find good reason to suspend the sentence in respect of a subsequent offence, as the decision in Castelluzzo itself illustrates.
Moreover, as I have already commented, Mr Nash’s poor driving record erodes to some extent the force of the personal circumstances relied on by Mr Algie.
It is relevant also to refer again to the circumstance that each of the offences in question were subsequent offences. This circumstance does not deprive Mr Nash’s personal circumstances of their relevance, but personal circumstances must be less persuasive when, as here, they are relied on by a repeat offender.
The issue for me is whether, in the circumstances, it was open to the Magistrate to reach the conclusion that he did.
In my opinion there is a solid foundation for the Magistrate’s conclusion that good reason to suspend the sentences of imprisonment did not exist. Mr Nash’s personal circumstances called for careful consideration, but I am unable to say that they are such as to outweigh the circumstance that Mr Nash’s attitude towards the disqualification orders was cavalier or off-hand, the fact that these were subsequent offences, Mr Nash’s poor driving record, and the need for general and personal deterrence.
The Court is always reluctant to imprison an offender for the first time, particularly for a traffic offence. But as the Full Court explained in Cadd, the effectiveness of orders disqualifying a person from holding or obtaining a driver’s licence depends upon such orders being observed. The breach of such orders undermines them as a method of punishing offences, and, as I said in my reasons at 167, has a “…corrosive effect upon licence disqualification as a punishment…”. That is one of the reasons why offences against s 91 of the MVA are treated as seriously as they are.
All of these matters had to be considered. In my opinion it was open to the Magistrate to reach the conclusion that he did, taking into account all of these matters.
I do not agree that the Magistrate failed to consider matters personal to Mr Nash, and other matters relevant to the possible suspension of the sentences of imprisonment. It is true that the Magistrate does not refer to these other matters when dealing with the question of suspension of the sentence of imprisonment. But the Magistrate had referred to matters personal to Mr Nash at the beginning of his reasons. He then summarised the circumstances of the offences, and then explained why he found the offending conduct to be contumacious and why an order for imprisonment was appropriate. He then turned to the question of suspension. It is no criticism of the reasons to say that they are relatively brief and to the point. It was not necessary for the Magistrate, when considering the question of suspension, to refer again to all relevant factors. The sequence of his reasons clearly indicates that, when he came to the question of suspension, he was in effect explaining why it was that despite matters that might support a suspended sentence, he came to the conclusion that the sentences should not be suspended.
Nor do I agree that the reasons reflect an unjustified emphasis on the seriousness of the offending, and on a need for deterrence. These were significant factors in this case.
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.