O'TOOLE v Police - [2006] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
O'TOOLE v POLICE
[2006] SASC 206
Judgment of The Honourable Justice White
14 July 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appellant pleaded guilty to five offences, two of which comprised the driving of a motor vehicle whilst disqualified - for two offences of driving whilst disqualified magistrate imposed a single sentence of seven weeks imprisonment, unsuspended - fresh evidence admitted altering the basis upon which magistrate found first offence was contumacious - second offence admitted to be contumacious - appelland had poor record - sentence of seven weeks imprisonment held not to be excessive - no good reason to suspend sentence.
Motor Vehicles Act 1959 s 9, s 91; Road Traffic Act 1961 s 42, s 47B, s 471AA; Criminal Law (Sentencing) Act 1988 s 18A, s 38, referred to.
Police v Conway; Police v Parker [2006] SASC 186; Eldridge v Bates (1989) 51 SASR 352; Police v Cadd (1997) 69 SASR 150; White v Police (2000) 76 SASR 430; Rhodes v Police [1999] SASC 191; Bates v Police (1997) 70 SASR 66; Petersons v Police [2003] SASC 271; Wilson v Police; Wilson v Department for Correctional Services [2004] SASC 39; Buttigieg v Police [2003] SASC 363, considered.

O'TOOLE v POLICE
[2006] SASC 206
Magistrates Appeal

WHITE J: This is an appeal against a sentence imposed by a magistrate.
On 24 April 2006 the appellant pleaded guilty to five offences. The first three offences, which were committed at Port Augusta on 20 January 2006, were driving an unregistered motor vehicle on a road, contrary to s 9(1) of the Motor Vehicles Act 1959 (“MVA”); failing truly to answer his name when required to do so by a police officer, contrary to s 42 of the Road Traffic Act 1961 (“RTA”); and driving a vehicle on a road whilst disqualified from holding or obtaining a licence, contrary to s 91 of the MVA.
The fourth and fifth offences, which were committed at Coober Pedy on 4 March 2006, comprised the driving of a motor vehicle on a road whilst disqualified from holding or obtaining a licence, contrary to s 91 of the MVA, and driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the RTA.
In respect of the two offences of driving whilst disqualified the magistrate imposed, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“CLSA”), a single sentence of seven weeks imprisonment. He declined to suspend that sentence. The magistrate recorded convictions without further penalty in respect of the offences of driving an unregistered motor vehicle and of providing a false name, but did not impose any further penalty. In respect of the offence of driving with the prescribed concentration of alcohol, the magistrate recorded a conviction and imposed a fine of $1,200. In addition, the magistrate imposed a driving disqualification for a period of three years, with that period to commence on 4 March 2006 at 4.02 pm. It is apparent that this date and time was fixed by reference to s 47IAA(9) of the RTA. The police who arrested the appellant on 4 March 2006 had issued an immediate licence disqualification pursuant to s 47IAA. It was not suggested, in the circumstances of this case, that it was inappropriate for them to have done so nor that the issue of the notice of immediate licence disqualification was an invalid act.[1]
[1] Police v Conway; Police v Parker [2006] SASC 186.
The appellant appeals against the sentence of imprisonment imposed in respect of the two offences of driving while disqualified. His submission is that that sentence was manifestly excessive. In the alternative, the submission is that the sentence of imprisonment should have been suspended.
The offence of driving while disqualified from doing so is a serious offence. The maximum penalty for a first offence is six months imprisonment, and for a second, two years imprisonment. The magistrate accepted that both of the offences committed by the appellant were to be treated as first offences. The offence is one in which considerations of general and personal deterrence are said generally to predominate over other considerations.[2]
[2] Eldridge v Bates (1989) 51 SASR 532 at 533-4, per King CJ.
If a person drives while disqualified, then it nullifies the effect of the sentence imposed by the court. The offence commonly involves an element of defiance of the law, and is one which is commonly committed by young people. As to this feature, King CJ said in Eldridge v Bates:[3]
… It is unfortunate that a high proportion of persons who suffer disqualification from holding or obtaining a driver’s licence are young persons. It is amongst those young persons that the importance of making [a] disqualification order effective is most necessary. It is therefore those young persons, in particular, although, of course, not exclusively, who must be made to understand that disobedience of disqualification orders, unless there are exceptional circumstances, means gaol. Imprisonment of young persons, even for a short period, is extremely distasteful, but where there is deliberate disobedience of a disqualification order, there will usually be no alternative which is consistent with the court’s duty.[4]
[3] Ibid at 534.
[4] Ibid.
Circumstances of the First Offending
The appellant is an Aboriginal man now aged 20. In January this year, he was living in Port Augusta with his partner. She had recently given birth to their first child. The partner had gone out in the evening of 20 January 2006 to visit friends. The appellant had stayed home with his grandmother to care for the child. At about 10.30 pm he received a telephone call from his partner who asked him to pick her up. She told the appellant that she could not get a taxi. If the appellant did not pick her up, she was considering walking home. The appellant considered that his partner sounded intoxicated and distressed and was concerned about her vulnerability if she did walk home. He decided to go and get her, even though he knew that his licence had been disqualified.
During the course of the sentencing submissions, the magistrate was told that the appellant’s grandmother had her own driver’s licence. The implication was that she, instead of the appellant, could have gone to pick up the appellant’s partner. On the hearing of the appeal, with the consent of the respondent, I received fresh evidence which indicated that the appellant’s then counsel had misapprehended her instructions. It is now apparent that the appellant’s grandmother did not have a driver’s licence.
Circumstances of the Second Offending
On 4 March 2006 at about 2.30 pm, the appellant was stopped in Hutchison Street, Coober Pedy. Breath analysis showed his blood alcohol content to be 0.089 grams of alcohol in 210 litres of breath. The appellant said that his last drink had been on the previous night but he had then consumed a considerable amount of alcohol. He was driving the vehicle because he intended to purchase a packet of cigarettes, it was a hot day, and there was no one else to drive him.
Appellant’s Antecedents
The appellant has previous court appearances. On 19 September 2003 he committed offences which included driving an unregistered vehicle, and driving while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the RTA. On 25 July 2004 and 13 August 2004 the appellant committed further offences. In respect of an offence of illegal use of a motor vehicle committed on 13 August 2004 the appellant was, amongst other things, disqualified from holding or obtaining a driver’s licence for a period of 12 months commencing on 27 February 2005. In respect of the offence of failing to give sufficient warning before turning left and an offence of driving with the prescribed concentration of alcohol, both of which were committed on 25 July 2004, the appellant was, amongst other things, disqualified from holding or obtaining a driver’s licence for a period of 12 months commencing on 27 March 2006. The first of those disqualifications was in force as at 20 January 2006, and the second was in force as at 4 March 2006.
The Decision of the Magistrate
In his sentencing remarks, the magistrate referred to Police v Cadd;[5] White v Police;[6] Rhodes v Police.[7] He referred in particular to the statement in Cadd that in the ordinary case of contumacious offending by a first offender an order of imprisonment is appropriate but accepted that the circumstances of the offending, or of the offender, in an individual case may indicate that some less severe form of punishment is appropriate.
[5] (1997) 69 SASR 150.
[6] [2000] SASC 127, (2000) 76 SASR 430.
[7] [1999] SASC 191.
The appellant accepted that the offence of driving whilst disqualified committed on 4 March 2006 was contumacious.
The magistrate said that he regarded the offence committed on 20 January 2006 also to have been contumacious. He considered that there was an element of intentional disobedience or defiance of the order of disqualification, and that the reason given by the appellant for his driving indicated no more than a desire on his part to provide some assistance to his partner in circumstances where there were alternative forms of transport available to her. The magistrate said that the appellant could have had his grandmother drive to collect the partner or alternatively could have arranged for a taxi to collect her. The further evidence which I have received indicates that the first part of the magistrate’s reasoning in that respect is no longer valid.
The magistrate noted that the appellant is a young Aboriginal male with a partner and a young child. He participates in Community Development Employment Projects (“CDEP”) activities for some days each week. The magistrate described the offence of driving while disqualified as prevalent in the Coober Pedy and Port Augusta communities and said that he considered general deterrence to be an important consideration in his sentencing.
Appellant’s Submissions
Mr Bennett, who appeared for the appellant, made three principal submissions. The first was that the offence of driving whilst disqualified which was committed on 20 January 2006 should not have been characterised by the magistrate as contumacious. Then it was submitted that the sentence of imprisonment of seven weeks, while appropriate for two contumacious offences, was inappropriate for one non-contumacious offence and one contumacious offence. Mr Bennett accepted that a sentence of seven weeks was appropriate, even moderate, if the magistrate was correct in regarding both offences as contumacious. However, if the first offence was not contumacious, it should (it was submitted) have been dealt with by the imposition of a fine or an order for community service. Finally, Mr Bennett submitted that whatever sentence of imprisonment was imposed should have been suspended.
Consideration
The circumstances in which an appellate court interferes with a sentence imposed by a magistrate are well established. The appellant must satisfy the court that the magistrate acted on some wrong sentencing principle, or that he took into account an irrelevant matter, or that he failed to have regard to a relevant matter, or that, although no precise error can be identified, the sentence is so unreasonable that it cannot be regarded as a proper exercise of the sentencing discretion.
In the present case, the additional evidence which I have received indicates that while the magistrate’s recording of the facts was accurate based on the submissions which had been made to him, there was an error. That error is that, contrary to what the magistrate had been told, the grandmother did not have a licence herself so as to be able to drive to pick up the appellant’s partner. The magistrate’s belief that she was so able was a factor to which (quite understandably) he referred explicitly in reaching the conclusion that the first offence of driving whilst disqualified was contumacious. Now that that error has been corrected, it is necessary that the question of whether the offence committed on 20 January 2006 was contumacious should be revisited.
In Police v Cadd Mullighan J said that the word “contumacious” in the present context meant:
… 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.[8]
[8] (1997) 69 SASR 150 at 179.
The concept of contumacy was elaborated by Perry J in Bates v Police:
… I am of the view that to establish 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 emergency or some other form of duress.[9]
[9](1997) 70 SASR 66 at 73. See also Petersons v Police [2003] SASC 271 at [32]; Wilson v Police; Wilson v Department for Correctional Services [2004] SASC 39 at [22].
The existence of contumacy is to be assessed by reference to the attitude of the offender. If the driving, and the surrounding circumstances, indicate an attitude of defiance that would usually amount to contumacy.[10]
[10] Buttigieg v Police [2003] SASC 363 at [9].
The question of whether the appellant’s driving on 20 January 2006 was contumacious may be a matter upon which reasonable minds could differ. On the one hand, the decision to drive was wilful and apparently made after the appellant had adverted to the fact that he was disqualified from driving. Furthermore, as the magistrate pointed out, the circumstances cannot reasonably be described as circumstances of emergency. There were other options available: use of a taxi; arranging for someone else to pick up the partner, or the partner remaining where she was until a ride home became available.
Mr McDonald, who appeared for the respondent, submitted that there were two additional factors bearing on the question of whether the appellant’s driving on 20 January 2006 was contumacious. First there was the fact that when stopped by police the appellant gave a false name. I do not consider that that by itself necessarily indicates an attitude of defiance at the time of driving. It is just as consistent with the appellant appreciating, when stopped by the police, the folly of his conduct, and seeking to avoid the consequences of it. Secondly, Mr McDonald submitted that the fact that the appellant committed a second offence only six weeks later is indicative of a general attitude of defiance to the order of disqualification. Whilst there are some circumstances in which an inference that an offender is defiant generally of court orders can be drawn from repeated offending, I am not prepared to conclude that this is such a case. It is often difficult to draw an inference from a person’s actions as to their state of mind at a point of time which is well antecedent to the time of those actions. In this case, those difficulties are enhanced because the state of mind of the appellant on 4 March 2006 may well have been influenced by the alcohol then in his system. Furthermore, there is the fact that as at 20 January 2006 the appellant had apparently complied with the order of disqualification for a period of approximately 11 months. That is inconsistent with a general attitude of defiance.
The magistrate accepted that the reason for the appellant’s driving was his concern for his partner who was the mother of their young child. It was her circumstances, which seemed to the appellant to be pressing, which led him to drive. There is also the fact (already mentioned) that this offence occurred after the elapse of nearly eleven months of the first period of disqualification, during which (it is to be assumed) the appellant had been observing the order of disqualification. There is a sense in which the decision to drive could be described as foolish rather than contumacious. Although much can be said either way, I conclude that the magistrate’s characterisation, in light of the facts now established, was incorrect.
The appellant submitted that if I reached that conclusion, I should hold that the sentence of seven weeks imprisonment was manifestly excessive. This is because a fine and/or an order for community service would have been appropriate for the first offence, and seven weeks imprisonment inappropriate for the second.
I do not accept this submission. Even when account is taken of all the factors favourable to the appellant, it cannot be accepted that the sentence of seven weeks imprisonment was excessive. The sentence relates to two offences: one contumacious and one not. However, the culpability of the appellant in relation to the second is increased by the fact that he had already been arrested and charged in relation to the first. That should have brought home to the appellant the seriousness of driving whilst disqualified. The fact of the first of the offences makes more obvious the defiance involved in the second. In addition the appellant’s record is poor, especially when account is taken of his young age. The appellant was not able to refer to his good record as a mitigatory factor. In my opinion, if the sentence of seven weeks had been imposed in relation to the offence committed on 4 April 2006 only, it could not be said to have been excessive. As it was imposed in respect of the two offences, that conclusion applies with even greater force.
Suspension
Section 38 of the CLSA permits a court to suspend a sentence of imprisonment if it thinks that “good reason exists” for doing so.
In refusing to suspend the sentence, the magistrate said:
… There is nothing in your personal circumstances or in the facts of your offending which, in my opinion and in light of the decision in Cadd, do give me good reason to suspend the sentence. I decline to do so.
A decision to suspend, or not to suspend, involves an exercise of a discretion. I have already referred to the circumstances in which an appellate court will interfere with an exercise of discretion by a court at first instance.
The fact that the magistrate was sentencing, as he thought, for two contumacious offences of driving whilst disqualified made it almost inevitable that the sentence would not be suspended. The error in the information provided to the magistrate, and on which he acted, makes it appropriate for his exercise of discretion to be revisited.
My conclusion is that suspension of the sentence of imprisonment is not appropriate. Good reason to do so has not been shown to exist. The circumstances which made the imposition of the sentence of imprisonment appropriate, to which I have already referred, are themselves relevant here. In addition, there is the appellant’s previous offending. His previous court appearances should have alerted the appellant to the need to comply with the law. They should have brought home to him the serious consequences which can follow from a failure to do so. It is unfortunate that the appellant has not taken heed of them. It is always unfortunate when young persons are required to serve periods in custody. This is particularly so for young persons sentenced to a period in custody for the first time. In the appellant’s case, there is the fact that he is the father of a young child, and will not, while in custody, be able to care for that child. However, as has previously been pointed out, many of those who commit this offence are young persons and it is particularly important to bring home to them that disqualification orders must be obeyed.[11]
[11] Police v Cadd (1997) 69 SASR 150 per Doyle CJ at 162.

For these reasons, my opinion is that the appeal should be dismissed. In accordance with his bail conditions, the appellant should present himself at the Coober Pedy Police Station within 14 days.