Parsons v Police No. Scciv-03-778

PARSONS v POLICE
[2003] SASC 374
Magistrates Appeal: Criminal

PERRY J. The appellant appeals against the penalty imposed upon him in the Magistrates Court sitting at Christies Beach following his plea of guilty to charges that on 4 October 2001 he hindered two police officers in the execution of their duty, and drove while disqualified. Exercising his powers under s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing magistrate imposed one sentence, that is, one month’s imprisonment, and declined to suspend it.
On two other charges arising out of the same passage of driving, namely driving in a manner dangerous to the public and failing to stop when requested by the police, the sentencing magistrate imposed a fine of $400 and a licence disqualification of nine months.
The notice of appeal relates only to the sentence of one month’s imprisonment. The appellant complains that the sentence is manifestly excessive; that the sentencing magistrate erred in not suspending it; and that he erred in finding that the offence of driving whilst disqualified was contumacious.
Apart from the charges arising out of the course of driving by the appellant on 4 October 2001, the appellant was also dealt with for offences of driving an unregistered and uninsured motor vehicle on 28 February 2003, and on the same date driving whilst unlicensed and without due care.
Apart from that, he was charged also with breach of a bond, the breach having been committed on 23 June 2000.
As for the breach of bond, the sentencing magistrate made no order apart from excusing the breach.
As for the traffic offences committed on 28 February 2003, the sentencing magistrate entered a conviction and imposed a single fine, namely $300.
Relevant factual circumstances
I have had the benefit of an affidavit sworn by the police prosecutor, Mr Fuss, who appeared for the complainant before the sentencing magistrate. It appears from his affidavit that at about 1.43 am of the morning of 4 October 2001, the attention of police officers on uniform mobile patrol was drawn to a motor car driven by the appellant, which was proceeding along Bains Road, Morphett Vale. Due to its condition, they decided to stop the vehicle.
The police officers activated blue and red lights and flashed the appellant with their high-beam lights. Instead of stopping, he accelerated away. The police officers followed, sounding their siren.
They followed the appellant through what they described as a “semi-rural area” where the speed limit was 100 kilometres per hour. The appellant’s vehicle was travelling at about 90 kilometres per hour.
He was proceeding in an erratic manner, cutting corners in an endeavour to get away from the following police car.
A number of other motor vehicles moved out of the appellant’s path to avoid a collision.
At one stage the appellant executed a U-turn, reversing his direction of travel along Bains Road. In the process of doing so, he narrowly missed colliding with the pursuing police vehicle.
At this stage the appellant was travelling west along Bains Road. While doing so, he forced another police vehicle travelling in the opposite direction to move off the road, to avoid a collision.
The appellant continued his erratic manner of driving until his vehicle left the road, mounting an embankment on the corner of Gates Road and Hepenstal Road.
The appellant, who was the sole occupant of the vehicle, left the vehicle and hid in nearby bushland. The police dog squad attended soon afterwards and located him.
On his arrest, the appellant was asked to comment about the incident, but was crying and distressed and declined to be interviewed.
With respect to the charge of driving whilst disqualified, the appellant had been disqualified by the Department of Transport from 11 May 2001 until 2 November 2001 for breaching his provisional licence.
Was the driving “contumacious”?
In the course of his sentencing remarks the sentencing magistrate commented:
“It is not argued that his [the appellant’s] offending is not contumacious and I find that it is. I have perused his antecedent history in detail. There have been numerous offences of driving without due care, speeding and the like. He has shown a complete disregard for the safety of the community and the road rules that bind those of us that use the road. On two occasions previously he has been dealt with for driving whilst disqualified. On the first occasion he was sentenced to a sentence of 14 days and he had the benefit of suspension of that sentence. On the second occasion he was imprisoned for 7 days. Accordingly, with respect to count 4 before me [driving whilst disqualified] he stands to be sentenced to a period of 2 years imprisonment.”
Ms Demertzis, who appeared for the appellant before the sentencing magistrate and before me on the hearing of the appeal, took issue with the suggestion that no argument had been offered that the driving was not contumacious.
I admitted into evidence an affidavit sworn by her for the purposes of the appeal, in which she states, inter alia, the following:
“8.In relation to the offences of 4 October 2001 I made submissions, inter alia, as follows:
(a)     That the defendant was driving his own vehicle travelling to his girlfriend’s house where he was staying at the time;
(b)    The defendant had been taking speed prior to that date and had been awake for 7 days straight;
(c)    That the defendant attributes this lack of sleep to making poor decisions at the time;
(d)    That the disqualification was not a Court imposed disqualification;
(e)    The defendant had lodged two appeals against this disqualification both which were unsuccessful;
(f)     The defendant had believed that this period of disqualification was only for 3 months and not 6 months;
(g)    Therefore the defendant thought that the disqualification that had commenced in May of 2001 would have expired in August 2001;
(h)    Further that this was an honest but not reasonable mistake of fact, thus making the offending not contumacious; ..”
When I pointed out to Ms Demertzis that the magistrate’s sentencing remarks were at odds with her account of the submissions which she made, she explained that after she had put her submissions as to the question whether the driving was contumacious, there were lengthy submissions in argument over whether or not any sentence of imprisonment to be imposed should be suspended. The sentencing magistrate went on to give ex tempore sentencing remarks, and Ms Demertzis suggested that by then the magistrate might have been distracted by the argument over suspension and overlooked the separate submission which had been made on the question of contumacy.
Whatever the explanation may be, against this somewhat unsatisfactory background, I suggested that if she now wished to pursue the submission as to contumacy, more particularly on the basis that the appellant did not believe at the time that his disqualification was still in force, it would be difficult to deal with that issue without hearing evidence from him. Indeed, I would have thought that the appropriate course to have been followed was for him to have given evidence on that topic in the Magistrates Court.
Be that as it may, in an endeavour to resolve the problem, I then suggested that Ms Demertzis might care to call her client to give evidence before me.[1]
[1] See Magistrates Court Act 1991, s 42(4):
“On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.”
She thereupon called him to give evidence. He was cross-examined by Mr Jacobi, who appeared as counsel for the respondent.
The appellant said in evidence that he did not deny having received a letter notifying him of his disqualification sometime in 2001. He said he “assumed” that the disqualification was for three months but “obviously I didn’t read it properly”. He went on to say:
“My last disqualification was three months and I thought all point demerits were straightforward three months disqualification. I did appeal it and I missed the court date and I went back for another appeal and I had a child, sick child, which I didn’t go again so I never actually got to go into court for the appeal and once the three months was up I believed that I wasn’t disqualified any more. I was aware of the fact I didn’t have a licence but I knew - I did not think I was disqualified.”
The appellant added that at that time he was leading an unstable life and “was taking stuff I shouldn’t be taking”.
In answer to the question “On 4 October were you aware that you were disqualified” he said:
“No, not at all. I had already been to gaol for driving disqualified and there was no way I was stupid enough to do it again.”
In the course of his cross-examination a number of documents were tendered relevant to the appellant’s awareness that he was disqualified and the length of the disqualification. Amongst them was the original notice of disqualification dated 27 March 2001. Although he denied having received it, I have no doubt that in fact he did do so, as he lodged a notice of appeal against the disqualification in the Magistrates Court on 19 April 2001.
Furthermore, the notice of disqualification stated:
“Pursuant to Section 81b(2) of the Motor Vehicles Act, 1959, I hereby CANCEL the Learner’s Permit AND Provisional Licence held by you and give notice that you are DISQUALIFIED from holding or obtaining a learner’s permit or driver’s licence for a period of six (6) months.
.......
The disqualification will be effective from 10/04/01.”
In his notice of appeal dated 19 April 2001, the appellant states:
“Notice of cancellation of my driver’s licence and disqualification was served upon me on the 10^th day of April 2001.”
The appellant concedes that he did not attend on the hearing of the appeal.
In the result, the Registrar of Motor Vehicles wrote to him by letter dated 25 May 2001. The letter reads as follows:
“Dear Mr Parsons,
It has come to the attention of this office that the appeal against the cancellation of your licence was dismissed on 11 May 2001.
Due to the dismissal the cancellation is effective from 11 May 2001 until 2 November 2001. Therefore, you are required to surrender your licence to any Transport SA, Customer Service Centre within seven (7) days.
At the end of your disqualification you will be required to attend any Transport SA, Customer Service Centre with $32.00 to be issued with a twelve month provisional licence.” (emphasis added)
Following receipt of that letter, on 29 May 2001 the appellant filed an application in the Magistrates Court for an order which he expressed in the following terms:
“.... leave to have appeal re-heard or any other order the court sees as fit.”
It appears from an endorsement on the application that the appellant appeared in court when the application was listed on 13 June 2001. The matter was adjourned to 29 June 2001.
The appellant said in evidence that he could not remember that the matter was adjourned, and he was unclear as to whether he had attended a second time. He did admit, however, that the appeal (treating his application as a second appeal or re-hearing of the appeal) was dismissed.
After her client had given evidence, Ms Demertzis submitted that I should find that the appellant did not know that his disqualification was for the period of six months expiring on 2 November 2001. In the face of his evidence, I could not properly accede to that submission.
On the contrary, given the clear terms in which he was originally notified of the disqualification for a period of six months, the fact that he then lodged a notice of appeal which, when it lapsed, resulted in a letter advising him specifically that the cancellation was effective from 11 May 2001 until 2 November 2001, and that he then brought what was in effect a further appeal which was to his knowledge dismissed, I think that it is inconceivable that he was not well aware of the term of the suspension.
So that I would reject his suggestion to the contrary and his suggestion that at the time of the passage of driving on 4 October 2001 which resulted in his conviction on the charges now under appeal, he was not aware that he was driving whilst disqualified.
Given the history of is previous traffic offences, which, as was pointed out by the sentencing magistrate, included two previous convictions for driving whilst disqualified, and given the nature of the passage of driving now in question, the only possible conclusion is that the act of driving in breach of the licence disqualification should properly be regarded as contumacious, in the sense in which that expression was defined in Police v Cadd,[2] and subsequent cases.[3]
[2] (1997) 69 SASR 150.
[3] See, for example, Bates v Police (1997) 70 SASR 66, Bradford v Police (unreported) judgment S6943, 1998 (Debelle J) and Woodward v Police (unreported) [2000] SASC 246 (Lander J).
Has the appellant demonstrated error?
The appellant through his counsel did not suggest that there was any identifiable error in the magistrate’s sentencing remarks, except as to his comments as to contumacy.
For the reasons which I have given, the magistrate did not err in his conclusion as to that aspect of the matter.
Ms Demertzis then advanced a number of submissions as to the appellant’s personal circumstances, including the circumstances which led him to drive in the manner in which he did on that night, from which she submitted that the sentence was manifestly excessive, and further, that the sentencing magistrate erred in not suspending it.
The appellant is aged 24 years. He has a long history of prior offending, including offences of dishonesty and traffic offences, dating back to 1995. Most of the offending was relatively minor. But the nature and persistence of the traffic offences justified the comment by the sentencing magistrate that he has “shown a complete disregard for the safety of the community and the road rules”.
The two previous offences of driving whilst disqualified are particularly significant. The fact that he had had the benefit of a suspension of the 14 days sentence of imprisonment on the first of those offences is important, as if a defendant offends again after earlier receiving the benefit of a suspension of a sentence of imprisonment, the sentencing options must be regarded as narrower than otherwise would be the case.
The fact that he was imprisoned for seven days following the second conviction for driving whilst disqualified should have brought home to him the seriousness of the offence and the likely consequences of further offending.
At the time of the offending the appellant was living with his parents and his sister, but he and his partner were planning to move into their own accommodation during the following week.
The appellant has three children, two by his present partner and one to a previous partner. The appellant’s present partner was pregnant with their third child at the time the matter was before the magistrate.
Since leaving school, the appellant has worked on and off, but was unemployed for two years before securing work in January 2003. This was with Fibrelogic. A letter from the firm put before the sentencing magistrate confirmed that the appellant was employed on a casual basis and that Fibrelogic intended to continue to employ him if the workload continued.
This has not eventuated. I was informed by Ms Demertzis that the appellant’s employment ceased some time ago. He is now unemployed.
As for the immediate circumstances of the passage of driving in question on 4 October 2001, Ms Demertzis repeated submissions to this Court which had been put to the magistrate to the effect that the appellant had been taking “speed” prior to that date and had been awake for seven days straight; that his lack of sleep led him to make what she described as “poor decisions”; that the disqualification was not a court-imposed disqualification; and that he had believed the disqualification to have expired in August 2001.
I have already dealt with the question of the appellant’s belief as to a period of disqualification.
While the taking of “speed” may explain his lack of response to the police efforts to get him to pull over, and his responses when finally apprehended, those matters carry very little weight in determining whether it was appropriate in all the circumstances to impose a sentence of imprisonment.
The fact that the disqualification was not imposed by a court is irrelevant.
In my view, it has not been demonstrated that the magistrate erred in following the course that he did. Given that the maximum penalty was two years imprisonment, the sentence of one month’s imprisonment could not be said to be manifestly excessive.
As for the question of suspension, Ms Demertzis urged the magistrate to take into account the personal circumstances of the appellant, including the fact that, as things stood at that stage, he was likely to lose his employment if imprisoned.
It is true, as Ms Demertzis pointed out, that there are authorities which suggest that the court should hesitate to impose a short term of imprisonment if the effect might be that the defendant will lose secure employment. But that is only one of the factors which must be taken into account. However, I do not think that much weight can be given to that now.
While in a strict technical sense, the question whether or not the magistrate was in error in failing to suspend should be determined on the basis of the material and circumstances as they existed at the time and as they were explained to him, it would be unrealistic for this Court not to take note of the fact that the appellant has since become unemployed.
In the events which have happened, the appellant cannot be said to have been in secure employment at the time he was sentenced.
Having regard to all of the circumstances, I am not satisfied that the magistrate erred in deciding not to suspend the sentence.
I would dismiss the appeal.
I so order.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. See Magistrates Court Act 1991, s 42(4):
“On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.”
2. (1997) 69 SASR 150.
3. See, for example, Bates v Police (1997) 70 SASR 66, Bradford v Police (unreported) judgment S6943, 1998 (Debelle J) and Woodward v Police (unreported) [2000] SASC 246 (Lander J).

[2003] SASC 374

6 November 2003