Pallares v Police No. Scgrg-98-1499 Judgment No. S134

PALLARES v POLICE
[1999] SASC 134

Magistrates Appeal

LANDER J. The notice of appeal, in this matter, claims that this is an appeal from the entry of conviction and the imposition of sentence in the Magistrates Court sitting at Mount Barker on 9 October 1998.
The sole ground of appeal, however, is simply: “The penalties are too harsh”.
The appellant was charged on complaint with seven offences. When the matters originally came before the Magistrates Court the appellant, who was represented by counsel, pleaded not guilty to all counts. The trial on all counts commenced on 6 March 1998 when the prosecution called two police officers and an ambulance officer. The matter was adjourned on two occasions and on the third occasion the appellant entered pleas of guilty to four of the charges and the respondent withdrew the other three.
The counts to which the appellant pleaded guilty all arose on 2 December 1996 at Crafers and Eagle on the Hill in South Australia and were:
Being the driver of a motor vehicle on the carriageway of the road namely Mount Barker Road which carriageway was marked with two or more lanes for traffic moving in the direction in which the vehicle was moving drove the vehicle in the right hand lane.

Drove a motor vehicle on a road namely Mount Barker Road whilst he was disqualified from holding or obtaining a license.

Being a person who was required under s47E of the Road Traffic Act 1961 to submit to a breathalyser analysis to comply with all reasonable directions of a member of the police force in relation to the requirement. (sic)

Drove a motor vehicle without due care.

Two counts alleging that there was present in his blood the prescribed concentration of alcohol and a further count alleging that he drove a motor vehicle whilst disqualified from holding or obtaining a license were the subject of counts four, five and seven and were withdrawn.
On 6 August 1998, convictions were recorded and an order was made that the appellant attend a driver assessment clinic for assessment.
Although the grounds of appeal do not say so the appellant complains of the entry of convictions on his pleas of guilty. He says that the convictions should be set aside because he pleaded guilty only because he was told no legal aid was available. He was not told that he could represent himself.
He says that he was not guilty of the offences and that he was not in his right state of mind when these offences occurred. He says that someone put something in his drink.
The appellant instructed a solicitor to defend these charges. The solicitor, in due course, briefed counsel who represented the appellant at the hearing when evidence was led.
The matter was then adjourned for a period of about five months. Two days before the matter was due to resume the appellant met with his solicitor and after a conference instructed his solicitor in the following terms:
“I Mark Pallares hereby instruct Johnson Withers to authorise Gabby Brown to tell Pros.
I.      That I’ll plead guilty to
(a)     Drive disqualified re driving before the collision.
(b)     Drive without due care re barrier crash.
(c)     Drive failing to keep right.
(d)     Refuse to blow.
II.I acknowledge I may receive a jail term re count (a) and will also my licence lost (sic) for three years at least. I am also liable for up to $15,000 approx in fines.
III.I wish matters to be put as per my statement of 4 August and I acknowledge I can continue to proceed to trial and plead not guilty that funding is likely to be refused as there are little prospects of success.”
The appellant, who gave evidence in support of his application, admitted that he signed those instructions on that day and admitted that he was given the advice contained in the document.
I think it is clear that three things motivated the appellant to change his plea from not guilty to guilty. First because no further funding would be available. Secondly because by pleading guilty three of the charges would be dropped and thirdly he was likely to receive a lighter sentence.
After he was sentenced, I think, the appellant concluded that he should not have changed his plea but should have continued to plead not guilty.
I think it was not until the hearing of this appeal that the appellant realised that licence disqualification for a period of three years was in fact the minimum disqualification which could have been imposed.
The appellant called his solicitor in support of his application. I explained to the appellant that his solicitor was not entitled to give evidence of communications between himself and the appellant and between the appellant and himself unless the appellant was prepared to waive legal professional privilege. I explained to him if legal professional privilege was waived his solicitor could be obliged to provide information to the Court which, if this appeal was successful, might in due course be used against the appellant in the Magistrates Court. I informed him of the last mentioned matter because of a concern expressed by the solicitor.
The appellant said, in those circumstances, that he would not waive legal professional privilege and I therefore excused his solicitor from giving of further evidence.
A plea of guilty is an admission of all of the elements of the offence charged. His plea therefore amounted to an admission of all of the elements in the four separate offences. The respondent did not proceed with the prescribed alcohol charges. The fact that the appellant had consumed alcohol was not a relevant element in any of the offences to which he pleaded.
There are some circumstances when an appeal can be brought against a conviction even when the appellant has pleaded guilty to the charge.
Dawson J said in Meissner v The Queen (1995) 184 CLR 132 at 157:
“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.”

See also R v Frantzis (1996) 66 SASR 558 at 574.

In this case the appellant appreciated the nature of the charge and intended to plead guilty. There was a body of evidence which would have supported a conviction. Nothing has been put forward to suggest any possibility of a miscarriage of justice.
In so far as the notice of appeal complains of the entry of convictions the appeal must be dismissed.
The matter resumed in the Magistrates Court on 20 October 1998 and on counts one, three and six, pursuant to s18A of the Criminal Law (Sentencing) Act, a fine of $1600 was imposed and the appellant was disqualified from holding or obtaining a drivers license for a period of three years.
For the offence of driving whilst disqualified from holding or obtaining a motor vehicle license, the appellant was sentenced to fourteen days imprisonment which was suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for nine months.
The appellant had been convicted on 1 November 1994 for the offences of driving in a manner dangerous, driving without a license and driving with an excess of prescribed concentration of alcohol. In relation to the first of those charges he had been disqualified from holding or obtaining a motor vehicle license for 36 months. In relation to the third offence had been disqualified from obtaining or holding a license for a period of 6 months. The appellant was warned of the consequences of driving whilst disqualified.
In relation to these offences the appellant was observed driving in the right hand lane on the Mount Barker Road at Crafers travelling in a westerly direction. He was followed from Crafers to the Eagle on the Hill where the appellant drove his motor vehicle across the Mount Barker Road from the right hand lane into the Shell Service Station at Eagle on the Hill.
The police car in which there were two police officers followed the vehicle into the Shell Service Station and one of the police officers had a conversation with the appellant. The appellant smelled slightly of alcohol and the appellant was asked to submit to an alcotest. The appellant performed the alcotest and was advised that the test was positive. He was told that he would be required to remain until a breath analysis machine could be obtained and until that time he should not ingest anything by way of mouth. The appellant then went into the service station and bought some cigarettes. He was advised by the police officer that he could not smoke. Shortly after the appellant walked over to his car and placed some food which he had previously bought and the cigarettes on the front left seat and sat in the driver’s seat. He suddenly closed the door and locked it. The police officer asked him to get out of the vehicle but received no response. The appellant then lit a cigarette and wound down the window a little way. The appellant then put his car in motion.
The police car followed the appellant who set off in a westerly direction but then crossed over the median strip and travelled in an easterly direction on Mount Barker Road. The police officers lost sight of the appellant’s vehicle. Eventually they observed the appellant’s vehicle parked on the left hand side of the road. The vehicle had come into contact with the left hand side guard rail on Mount Barker Road causing extensive damage both to the vehicle and to the guard rail.
An ambulance was summoned and the appellant was taken away by ambulance to the Royal Adelaide Hospital. Shortly before the ambulance arrived at the Royal Adelaide Hospital, the appellant became aggressive. He undid the restraints on the stretcher on which he was lying. He removed an oxygen mask from his face. He pulled an intravenous drip from his arm. He began to thrash about. He was swearing and he appeared confused. The ambulance arrived at the Royal Adelaide Hospital. The police arrived and the appellant locked himself within the ambulance.
Eventually the appellant was subdued but only after capsicum spray had been used on him. Even so he was still struggling when he was admitted to hospital. The appellant caused considerable damage to the ambulance. The driver’s side window was smashed by the appellant when he punched the window during the time that he was thrashing about. The damage to the ambulance amounted to $1450.
The appellant has been assessed by the Director of Alcohol Services and found not to be a person who is suffering from alcoholism.
I shall deal first with the sentence imposed pursuant to s18A of the Criminal Law (Sentencing) Act in respects of counts 1, 3 and 6.
Because of the provisions of s47E(3) of the Road Traffic Act, the conviction for the offence of failing to comply with the reasonable directions of a member of the police force to submit to a breathalyser analysis amounted to a subsequent offence.
In those circumstances, s47E(6)(a) obliged the learned Magistrate to disqualify the appellant from holding or obtaining a drivers licence for a period of not less than three years. In fact he imposed a disqualification period of three years which was the minimum provided for in the Act.
Section 47E(6)(b) has no application to a subsequent offence and the minimum period cannot be reduced. (Section 20(b) of the Criminal Law Sentencing Act).
In relation to the monetary penalty imposed for a subsequent offence of the kind in count 3, s47E(3) provides for a fine of not less than $1500 and not more than $2500.
A fine of $1600 in relation to all three counts could not be said to be manifestly excessive.
In my opinion the appellant has not established that the penalty imposed in respect of counts 1, 3 and 6 was in any way manifestly excessive.
In respect of the offence of driving a motor vehicle whilst he was disqualified from holding or obtaining a license, the learned Magistrate imposed a sentence of imprisonment but suspended it. In his sentencing remarks, after referring to the decision of this Court in Police v Cadd (1997) 69 SASR 150, the learned Magistrate said:
“It is difficult to regard your behaviour as contumacious, meaning deliberately disobedient, on this occasion. I cannot bring you within that category.”
If those observations are correct, it seems to me, that it might have been inappropriate to impose any sentence of imprisonment at all. If it could not be said that the appellant’s driving was in contumelious disregard for the order of the Court then consistent with the reasoning of the majority in Police v Cadd no sentence of imprisonment whether immediate or suspended should have been imposed.
However, I disagree with the observation of the learned Magistrate in relation to the appellant’s driving. The fact that the appellant drove his motor vehicle after being stopped by a police officer and being advised that the alcotest was positive was, in my opinion, a contumacious act. He knew he was disqualified and he knew of the consequences of driving whilst disqualified. His only reason to recommence driving was to avoid prosecution for that and other offences. I do believe that the appellant’s driving, at least after he had been advised of the result of the alcotest, indicated a contumelious disregard for the order of the Court. He had no excuse for driving at that time at all.
Therefore, although for reasons other than those given by the learned Magistrate, in my opinion, the sentence imposed by the learned Magistrate was appropriate.
I would dismiss the appeal against the sentences imposed by the learned Magistrate.

[1999] SASC 134

8 April 1999