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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read O'TOOLE v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] SASC 206
Decision Date: 14 July 2006

CaseChat Overview and Summary

The case of O'Toole v Police involves the appellant who pleaded guilty to multiple driving offences, including driving while disqualified. The matter was heard by the court of appeal where the appellant contested the magistrate's sentencing decision. The central legal issues revolved around the characterization of the offences as contumacious and the appropriateness of the seven-week imprisonment sentence imposed. The appellant argued that one of the offences was not contumacious and that the sentence should have been suspended or replaced with a fine or community service order.

The court of appeal considered the submissions made on behalf of the appellant, who contended that the magistrate's characterization of the first offence as contumacious was flawed due to a misunderstanding of the facts. The court noted that the magistrate's error in understanding that the appellant's grandmother could legally drive to assist the appellant's partner led to an incorrect conclusion that the first offence was contumacious. The court clarified that the concept of contumacy requires an attitude of total disregard for the disqualification order, and the magistrate's misunderstanding of the facts impacted his sentencing rationale. Despite this error, the court found that the second offence was indeed contumacious, and the sentence of seven weeks imprisonment was not excessive given the appellant's history of offending and the need for general deterrence.

The court ultimately upheld the magistrate's sentence, concluding that the sentence was not inappropriate for the combination of contumacious and non-contumacious offences. The court also found no compelling reason to suspend the sentence, given the appellant's poor record and the necessity of imposing a custodial sentence to achieve the purposes of general deterrence and denunciation. The court did not alter the sentence but affirmed the magistrate's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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].