Padjan v Police - [2010] SASC 334

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PADJAN v POLICE
[2010] SASC 334
Judgment of The Honourable Justice Gray
1 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal against sentence - the appellant pleaded guilty in the Mount Gambier Magistrates Court to the offence of driving whilst disqualified, and to the offence of failing to comply with a reasonable direction of a member of the police force; namely to submit to a breath analysis - conduct breached the terms of a good behaviour bond entered into with respect to a suspended term of imprisonment of 21 days - where Magistrate sentenced the defendant to a term of imprisonment of 56 days, reduced from 60 days on account of plea, for the offence of driving whilst disqualified - that sentence not suspended - where Magistrate on the charge of failing to comply with a police direction to submit to a breath analysis, fined the defendant $2000.00, and further disqualified the defendant from holding or obtaining a drivers licence for a period of four years - where two periods of imprisonment cumulative, resulting in total order of imprisonment of 77 days - whether error in the sentencing process.
Held: appeal allowed in part - the Magistrate failed to make an adequate reduction on account of the defendant’s contrition and remorse and plea of guilty, and failed to have adequate regard to the appellant's youth and changing circumstances - appellant resentenced - period of six weeks imprisonment imposed to be suspended on the appellant entering a three-year supervised good behaviour bond - in view of the personal circumstances of the appellant, the minimum statutory fine of $1500.00 in respect of the failure to comply with a police direction to submit to a breath analysis is appropriate - the Magistrate’s discretion to impose a four-year disqualification miscarried because he failed to have regard to the notice of immediate licence disqualification and the statutory regime governing the orders to be made in such a circumstance - appropriate order made.
Motor Vehicles Act 1959 (SA) s 91(5); Road Traffic Act 1961 (SA) s 47E(3), referred to.
Mill v Police [2007] SASC 253; Police v Lindblom [2009] SASC 168; Police v Clayton-Smith (2010) 107 SASR 261, considered.

PADJAN v POLICE
[2010] SASC 334
Magistrates Appeal
GRAY J:

This is an appeal against sentence.
Introduction
Mick Padjan, the defendant and appellant, pleaded guilty in the Mount Gambier Magistrates Court to the offence of driving whilst disqualified,[1] and to the offence of failing to comply with a reasonable direction of a member of the police force; namely to submit to a breath analysis.[2] The defendant’s offending conduct breached the terms of a good behaviour bond entered into with respect to a suspended term of imprisonment of 21 days. The Police made an application to revoke the suspension.
[1] Section 91(5) of the Motor Vehicles Act1959 (SA).
[2] Section 47E(3)of the Road Traffic Act1961 (SA).
The Magistrate sentenced the defendant to a term of imprisonment of 56 days for the offence of driving whilst disqualified. He made a reduction of four days from a notional starting point of 60 days on account of the defendant’s plea. The Magistrate declined to exercise his discretion to suspend the sentence.
On the charge of failing to comply with a police direction to submit to a breath analysis, the Magistrate fined the defendant $2000.00, and further disqualified the defendant from holding or obtaining a driver’s licence for a period of four years.
The Magistrate revoked the suspended sentence and as a consequence the defendant was subjected to the term of imprisonment of 21 days previously imposed. The Magistrate declined to exercise his discretion to reduce the term of imprisonment of 21 days. He directed that the two periods of imprisonment should be served cumulatively, and as a consequence the total period of imprisonment imposed was 77 days.
Following the orders of imprisonment being made on 17 August 2010, the defendant served 24 days in custody. On 9 September 2010, he was released on bail pending appeal.
Circumstances of Offending and Personal and Criminal Antecedents
On 22 February 2007, when aged almost 18, the defendant committed the offences of driving with excess blood alcohol and being an unauthorised person to drive a motor vehicle. He was dealt with in the Mount Gambier Children’s Court on 10 April 2007, and fined.
On 7 April 2008, when aged 19 years, the defendant committed the identical offences of driving with excess blood alcohol and being an unauthorised person to drive a motor vehicle. It is to be noted that this offending occurred a little more than 12 months after the earlier offending. On this occasion he was fined $1600.00 and his licence was disqualified for three years, commencing on 24 June 2008. The defendant was also sentenced to a term of imprisonment of 21 days, but that sentence was suspended on his entry into a good behaviour bond. That bond was acknowledged on 24 June 2008. The defendant’s offender history report records that at this time he was warned of the consequences of driving whilst disqualified.
The offending the subject of the present appeal was committed on 4 February 2010, and, as noted above, was in breach of the terms of the suspended sentence bond.
The circumstances of the present offending were that the defendant had been at a birthday party with his partner. At the time she was pregnant. In the early morning of 4 February 2010, a uniform mobile police patrol observed the defendant’s vehicle travelling west on Commercial Street, Mount Gambier. The Police followed the defendant’s vehicle. The Police stopped the defendant to conduct a mobile screening test. As the Police approached the vehicle, the defendant was observed to slide between the two front passenger seats, and sit in the rear passenger seat, next to another occupant.
At the request of the Police, the defendant exited the car from the rear passenger seat. At that time the defendant denied that he had been the driver of the vehicle. The defendant submitted to an “alcotest”, which returned a positive reading. The defendant was arrested for driving whilst disqualified and shortly thereafter was required to submit to a breath analysis test. The defendant failed to supply a sufficient quantity of breath for analysis and was charged with failing to comply with a direction with respect to a breath analysis test. He was issued with an immediate loss of licence, disqualifying him from driving for the ensuing 12 months.
When further questioned by the Police, the defendant continued to deny being the driver of the vehicle, claiming that he was woken from sleep by the Police while he was in the back of the car.
The defendant claimed that he felt sick, and during the breath analysis process tried to blow as hard as he could “without coughing [his] arse up”. He offered no medical reason for not complying and at this time provided no other reason for why he did not comply.
The defendant was born on 9 March 1989. He is 21 years of age. He was 20 years of age at the time of the offending the subject of this appeal. He is unemployed. He was raised in Victoria and attended school there until year 10. That school was for persons with special needs, disruptive children and children with dyslexia. The defendant still experiences significant difficulty reading and writing. The defendant has worked as a bricklayer and a kitchen hand, but has also experienced periods of unemployment. For periods of time as a youth he was homeless. The defendant had applied for his driver’s licence and had arranged for a helper to assist him in taking the written test, but that helper had expected the defendant to be able to read, and the defendant was unable to pass the written test.
Since the above offending, the defendant and his partner of six years have moved back to Melbourne. The defendant’s partner was due to give birth to their first child at the end of September 2010. This Court was informed that the child has been born.
The defendant’s offending history would suggest that he has a problem with alcohol. As defence counsel has submitted, it is to be accepted that the defendant’s history does not demonstrate that he engages in alcohol abuse or is alcohol dependant. However it does demonstrate that he has committed three alcohol related offences associated with the driving of motor vehicles, and in that sense he has an alcohol problem that needs to be addressed.
Counsel for the Police pointed out that there is a public interest in ensuring that only properly qualified persons, free of alcohol, drive motor vehicles. The devastating sequalae of drink driving is well known to the courts. The defendant is a danger to the public in that he has continued to drive without ever being properly qualified and in that process has committed a number of alcohol related offences. As counsel for the Police further pointed out, the defendant is fortunate that he has not caused accident or injury.
Driving Whilst Disqualified
With respect to the offence of driving whilst disqualified, several complaints were advanced on appeal. As noted above, the Magistrate imposed a term of imprisonment of 56 days with respect to this offence, and declined to exercise his discretion to suspend that term. On appeal counsel accepted that it was appropriate for a term of imprisonment to be imposed, but submitted that the term of 56 days was manifestly excessive. It was further contended that any sentence should be suspended when proper regard was had to the circumstances of the defendant and the offending.
I consider that the Magistrate failed to make an adequate reduction on account of the defendant’s contrition and remorse and plea of guilty. He made a reduction in this respect of less than seven percent. As was conceded by counsel for the Police, a reduction in the order of 25 percent would be appropriate.
In my view, the Magistrate also failed to have regard to the youth of the defendant and his changing circumstances. In this latter respect, further information was placed before the Court on appeal which confirmed those changes. The defendant has had a troubled past. He has had a difficult childhood and at times has been neglected. He spent a period as a homeless youth, but now appears to be reconciled with his mother and resides with her. He has returned to his home in Victoria. As a consequence of difficult economic circumstances, he is living separately from his partner and their newborn child. They meet each week. They intend to rent accommodation and live together.
Having regard to the defendant’s youth, the difficult circumstances of his adolescent life, and his changed circumstances, I consider it appropriate that he be offered a further chance. It does not appear that the Magistrate gave any express consideration to the question of rehabilitation. I consider that the defendant has prospects for rehabilitation. His successful rehabilitation is the best method of providing protection to the community.[3] In my view the defendant is in need of ongoing supervision and support. That is best provided through a supervised good behaviour bond with conditions, including to follow the recommendations of his correctional services officer as to the undertaking of courses that may assist in better equipping him to deal with the exigencies of life.
[3] See Police v Lindblom [2009] SASC 168.
It is appropriate in my view to sentence the defendant to a term of imprisonment of six weeks, but to suspend that sentence on his entry into a three-year supervised good behaviour bond. That sentence represents an approximate reduction of 25 percent from a notional head sentence of 60 days and takes into account the three days already spent in custody with respect to the offence of driving whilst disqualified. The defendant should understand that any further offending on his part is unlikely to receive such merciful treatment.
In reaching my decision to suspend, I have had regard to the fact that the defendant has now spent 24 days in custody. This is the first period of time that he has spent in custody, and was no doubt a salutary experience for him.
Failing to Comply with Police Direction
With respect to the offence of failing to comply with a reasonable direction of a member of the police force, two matters arose. The first related to the fine imposed. The legislation required in the circumstances the imposition of a minimum fine of $1500.00. The defendant has been unemployed and is the father of a young child. He has, as noted above, had a difficult past, and in all the circumstances, counsel for the Police accepted that it was appropriate to impose the minimum fine.
Counsel for the defendant further contended that the licence disqualification of four years was excessive. In that respect the Magistrate observed:
Turning now to the refuse breath analysis. This is your third offence. There will be a conviction and fine of $2000. There will be a licence disqualification of four years. I had in mind to make it an order until further order but there is some ambiguity about what your blood alcohol level reading was and the degree of intoxication so I intend to reflect simply the fact that your refused to submit to the sample. So I think a fixed period is appropriate. I have to consider whether that period of four years should commence at the expiry of the present periods of disqualification or not. I think that might be oppressive to make it cumulative upon the current period of disqualification. Four years disqualification will commence forthwith. You will know by now that the penalty for driving whilst disqualified is ordinarily imprisonment. I ask that the file be noted that you have been so warned yet again today.
It was the submission of counsel that the minimum period of disqualification should have been fixed; namely three years. In this respect it is to be noted that the disqualification for a period of three years ordered with respect to earlier offending, commenced on 24 June 2008. The disqualification imposed by the Magistrate in the within proceeding was ordered to commence on the day of sentencing; 17 August 2010. In the extracted passage above, the Magistrate explained that he intended his order for disqualification to be partly concurrent. As a consequence, the defendant will, in practical terms, be disqualified from holding or obtaining a driver’s licence for a period of a little less than three years and three months as from 17 August 2010.
The evidence before this Court included the Police apprehension report. A review of this report disclosed that the defendant was issued with “an Instant Loss of Licence Form for [sic] driving for a further 12 months” in accordance with section 47IAA of the Road Traffic Act 1961 (SA). As mentioned above, at this time – 4 February 2010 – the defendant was subject to a three year period of disqualification in respect of the earlier offending, which period commenced on 24 June 2008. The issue of the notice of immediate disqualification by the arresting Police officer causes a degree of complication. It is appropriate first to set out the terms of section 47IAA of the Road Traffic Act, which relevantly provides:
(1)     This section applies to the following offences:
(a)     a category 2 offence;
(b)     a category 3 offence;
(c) an offence against section 47E(3);
(d)an offence against section 47I(14) committed by a person who was the driver of a motor vehicle involved in the accident.
(2)     Subject to this section, if a police officer reasonably believes that a person has, after the commencement of this section, committed an offence to which this section applies, the police officer may give the person a notice of immediate licence disqualification or suspension in the prescribed form.
(3)     The notice must specify the offence to which the notice relates.
(4)If a person is given a notice of immediate licence disqualification or suspension under subsection (2)—
(a)    in the case of a person who does not hold a driver's licence—the person is disqualified from holding or obtaining a driver's licence for the relevant period; or
(b)     in the case of a person who holds a driver's licence—the person's driver's licence is suspended for the relevant period.
(5)     The Commissioner of Police must ensure that prescribed particulars of a notice of immediate licence disqualification or suspension given to a person under this section are forwarded to the Registrar of Motor Vehicles.
(6)     The Registrar of Motor Vehicles must, on receiving particulars of a notice of immediate licence disqualification or suspension from the Commissioner of Police, send, by post, a notice to the person of the name and address specified by the Commissioner containing the prescribed particulars of the notice of immediate licence disqualification or suspension.
(7)     The operation of a notice of immediate licence disqualification or suspension is not affected by any failure to comply with subsection (6).
(7a)   If a person is given a notice of immediate licence disqualification or suspension under this section, the Commissioner of Police must ensure—
(a)    that a determination is made, within a reasonable time, as to whether to charge the person with an offence to which this section applies; and
(b)     if a determination is made that the person should not be charged with any offence to which this section applies, that the person is given, or sent by post, written notice of that determination.
(7b)   The laying of charges against a person is not prevented by a failure to comply with subsection (7a) in relation to the person or by the making of a determination referred to in that subsection or the notification of such a determination.
(7c)   Subject to the making of an order under section 47IAB(2)(a)(ii), the operation of a notice of immediate licence disqualification or suspension is not affected by any failure to comply with subsection (7a).
(8)     If the person is not charged with the offence specified in the notice as the offence to which the notice relates but is charged with another offence to which this section applies arising out of the same course of conduct, that offence will then be taken to be the offence to which the notice relates.
(9)     If—
(a)a period of licence disqualification or suspension has applied to a person as a result of the person having been given a notice of immediate licence disqualification or suspension under this section; and
(b)     a court convicts the person of the offence to which the notice relates or another offence arising out of the same course of conduct; and
(c)    a mandatory minimum period of disqualification would (apart from this subsection) be required to be imposed for the offence,
then—
(d)     the court must order that the person be disqualified from holding or obtaining a driver's licence for a period determined by the court (and if the person is the holder of a driver's licence, the disqualification operates to cancel the licence from the commencement of that period); and
(e)    despite any other provision of this or any other Act, the court must, in determining the period, take into account the period of licence disqualification or suspension that has applied to the person as a result of the notice and may impose a period that is less than the mandatory minimum period of disqualification (provided that the period imposed is not less than the difference between the mandatory minimum and the period that has applied as a result of the notice).
(10)   Subject to subsection (11), no compensation is payable by the Crown or a police officer in respect of the exercise, or purported exercise, of powers under this section.
(11)   Subsection (10) does not protect a police officer from liability in respect of the exercise, or purported exercise, of powers otherwise than in good faith.
(12)   For the purposes of this section—
(a)     the relevant period commences—
(i)    at the time at which the person is given the notice of immediate licence disqualification or suspension or, if the police officer giving the notice is satisfied that, in the circumstances, it would be appropriate to postpone the commencement of the relevant period and indicates in the notice that the commencement is to be postponed, 48 hours after the time at which the person is given the notice; or
(ii)     if the person is already disqualified from holding or obtaining a driver's licence or holds a driver's licence that is suspended, at the end of that period of disqualification or suspension; and

It is to be observed that the notice of immediate licence disqualification does not always operate immediately. The terms of section 47IAA(12)(a)(ii) provide that an immediate disqualification commences operation at the end of an earlier imposed disqualification.[4] As a consequence, the immediate licence disqualification of 12 months in the present case will commence on 24 June 2011, at the expiry of the earlier imposed three year disqualification.
[4] See generally Mill v Police [2007] SASC 253 (White J).
Section 47IAA(9) also has application. The qualifying matters set out in subsection (9)(a)-(c) are met in the present case. The defendant was given a notice of immediate licence disqualification, the Court has convicted the defendant of the offence to which the notice relates, and a mandatory minimum period of licence disqualification is required to be imposed. The effect of section 47IAA(9)(d) and (e) is that when considering the mandatory minimum period to be imposed, the Court is to take into account the period of licence disqualification the subject of the immediate licence disqualification notice. As a consequence, in the present proceeding the Court is obliged to fix a licence disqualification of at least two years. In that way, the obligation with respect to the mandatory minimum licence disqualification will be met.[5]
[5] See generally the observations in Police v Clayton-Smith (2010) 107 SASR 261 at [29]-[33].
It does not appear that the Magistrate addressed this issue at all. It is necessary in the circumstances to set aside the order of disqualification that he made. Both counsel were agreed on an appropriate way to resolve the difficulties that arise in this proceeding. They agreed that I should note that the notice of immediate licence disqualification will commence on 24 June 2011, and that I should impose a further disqualification of two years to commence on 23 June 2012.
The Magistrate’s discretion to impose a four year disqualification miscarried because he failed to have regard to the notice of immediate licence disqualification and the statutory regime governing the orders to be made in such a circumstance.
On the appeal, the final submission advanced by the defendant was that the Magistrate had conflated the offence of failing to comply, with an offence of refusing to comply. This was not the charged offence. It is relevant to note that in his remarks, the Magistrate refers to the offence as a refusal to comply. It was submitted that there was an explanation for the defendant’s failure to comply. It was said that he tried his best, but that due to some form of lung impairment, he was unsuccessful in producing a measurable quantity of breath. It was acknowledged that this could not amount to a defence as he had not obtained a blood sample.[6] However, it was argued that the defendant’s account provided some explanation for what had occurred. In considering the penalty to be imposed for this offence, I have assumed that this submission is correct. However, having regard to the defendant’s failure to comply and to his explanation for that failure, I consider that the licence disqualification that I propose to order is appropriate.
[6] See section 47E(4a) and (5a) of the Road Traffic Act 1961 (SA).
Revocation of Suspended Sentence
As earlier observed, the defendant’s conduct breached the good behaviour bond with respect to the earlier suspended sentence of 21 days imprisonment. His conduct represented a material breach of that bond, and justified the exercise by the Magistrate of his discretion to revoke that suspension. The defendant has now served the 21 days imprisonment and in my view that part of the Magistrate’s orders should not be reversed on appeal.
The defendant spent a further three days in custody before his release. I have had regard to this three day period in reaching my decision to suspend the term of imprisonment to be imposed as a result of the present offending.
Conclusion
This appeal is allowed in part.
In respect of the offence of driving whilst disqualified, I set aside the order of imprisonment of 56 days made by the Magistrate. I sentence the defendant to a term of imprisonment of six weeks. I exercise my discretion to suspend that sentence on the defendant’s entry into a three year supervised good behaviour bond. Otherwise, the orders imposed by the Magistrate remain.
With respect to the offence of failing to comply with a direction of a Police officer requiring the defendant to submit to a breath analysis, I set aside the fine imposed by the Magistrate of $2000.00 and in lieu impose the minimum fine of $1500.00. I note that the defendant may be unable to pay this amount because of his poor financial circumstances, and that he may make application to the Court for appropriate relief. The defendant is disqualified from holding or obtaining a driver’s licence for a period of two years to commence on 23 June 2012.
The order of the Magistrate revoking the suspended sentence remains.