Paul v Police - [2015] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PAUL v POLICE
[2015] SASC 72
Judgment of The Honourable Justice Kelly
15 May 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Appeal against sentence. The appellant was convicted of driving while disqualified and sentenced to a period of imprisonment of seven days, suspended upon the appellant entering into a bond to be of good behaviour for a period of six months. During sentencing submissions the Magistrate had a printout of the appellant’s previously paid expiation notices produced, to which her Honour referred during submissions and in her sentencing remarks.
The appellant appeals on the grounds that the sentence imposed is manifestly excessive, and that he was not afforded procedural fairness during sentencing proceedings, in that he was not given the opportunity to address his previous record of expiation notices.
Whether sentence is manifestly excessive. Whether appellant denied procedural fairness during sentencing submissions.
Held (dismissing the appeal):
1. It was open to the Magistrate to find that the appellant’s offending was contumacious or, at the very least, the appellant’s attitude towards the disqualification was dismissive.
2. The Magistrate did not err in imposing a sentence of imprisonment or the length of the sentence imposed. The decision to suspend the term of imprisonment was well within the exercise of the Magistrate’s discretion.
3. It is not open for the appellant to complain that there has been a breach of s 15(4) of the Expiation of Offences Act 1996 (SA) in circumstances where the appellant has conceded the past offences, having been shown a list.
4. It is one thing for counsel to make a conscious choice to cease making submissions. It is quite another for counsel to be actually prevented from doing so. The appellant was not denied the opportunity to make full submissions as to his personal antecedents and the history of expiated offences. The circumstances were not such that the appellant was effectively denied the opportunity to make whatever submissions were necessary.
Motor Vehicles Act 1959 (SA) s 91; Expiation of Offences Act 1996 (SA) s 15(4); Criminal Law (Sentencing) Act 1988 (SA) s 11, referred to.
Police v Nissen (2014) 120 SASR 50, applied.
Police v Cadd (1997) 69 SASR 150, discussed.
R v Maxwell (1998) 102 A Crim R 374, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "contumacious"

PAUL v POLICE
[2015] SASC 72
Magistrates Appeal: Criminal
KELLY J.
Introduction

The appellant appeals a sentence imposed in the Magistrates Court on 29 January 2015. After pleading guilty to an offence of driving a vehicle whilst disqualified contrary to s 91 of the Motor Vehicles Act 1959 (SA), the Magistrate convicted the appellant and sentenced him to imprisonment for seven days, suspended upon the appellant entering into a bond to be of good behaviour for six months.
The appellant now appeals on the grounds that the sentence is, in the circumstances, manifestly excessive and upon the further ground that the appellant was not afforded procedural fairness during the sentencing proceedings.
The proceedings in the court below
In the course of submissions, the Magistrate had a computer printout of the appellant’s previously paid expiation notices produced. According to an affidavit filed on the appellant’s behalf in these proceedings, the following exchange then occurred between the Magistrate and counsel for the appellant:
Her Honour then said words to the effect of, “28 offences Counsel. You cannot come here and tell me your client is of good character.” In the course of my submissions, I recall Her Honour described the Appellant as belligerent and arrogant and said that he thinks he can drive when he wants. I sought leave to approach my client in order to substantiate the past record.
I showed them to him. I said to Her Honour that the appellant conceded the past offences. I attempted to make a point that a number of offences did not in fact incur demerit points and the disqualification he had been subject to was rightfully arose from those that did, rightfully so. My point was to address the infringements some of which were parking tickets. Her Honour continued to refer to the appellant as belligerent, privileged and arrogant, despite him having never been directly addressed by the Court or given an opportunity to have explained the infringements incurred. He was referred to as having a complete disregard for the law. Her Honour also said it was a privilege to have a driver’s licence. Her Honour said that even the parking fines were indicative of him having no regard for the law.
Her Honour then said to the Appellant words to the effect of, ‘You do not use a licence in the course of your employment. You have little regard for the road rules. The number of offences you have at 29 years of age suggests that you do not deserve to have a licence. With a history like this, what do you owe? I suppose $20,000 in fines.’
It appears that the Magistrate’s remarks led to there being no further submissions made on the appellant’s behalf as the affidavit sworn by his then counsel goes on to attest:
I was concerned that I did not wish to make the sentencing process nor any penalty worse for my client by addressing her Honour further which I believe under the circumstances may have occurred and ceased submissions save and except for saying that unless there was anything further I could assist with, those were my submissions. Despite being possessed of further information as to my client’s circumstances, personal and financial, his volunteer efforts and character despite the pre-disposed view of him it was considered that further submissions may have hardened her Honour’s view further.
The Magistrate’s approach
In sentencing the appellant the Magistrate stated:
One judge in Cadd’s case, later reviewed the guideline and in the case of White said the court should be lenient and forgiving of the foolish and unthinking; people who make mistakes, people who drive whilst disqualified when caught in a situation of urgency. You are not fooling and unthinking. You were not in an emergency situation. You are just belligerent. This was an act of belligerence for you to decide to just get into a car and drive having lost the right, the privilege of driving, due to your appalling history.
In relation to this matter I consider there is no reason that the sentencing guidelines should not be imposed although, given that your lack of prior history, I will be suspending the period of imprisonment. You are convicted. What would have been 10 days imprisonment for your defiance is reduced to seven which is suspended on condition you enter into a $100 bond to be of good behaviour for the next six months.
I certainly hope, now that you are 28 years of age, that you somehow rid yourself of this foolish position thinking that in some way that you are special or that you do not have to be restrained, like other people have to be restrained, for road safety. The national road safety statistics suggest; because of the way you drive, because of the way you cut corners, because you don’t drive within speed limits etc., because of the number of times that you have been picked up committing fairly trivial offences, you are more likely than other people to seriously injure or to maim other road users if not yourself.
[footnote omitted]
The Magistrate then stated that she would not impose any further licence disqualification because the appellant would eventually have to pay all of the fines incurred as a result of the expiation notices.
Discussion
The appellant complains that, in proceeding in the manner in which she did, the Magistrate failed to give the appellant a proper opportunity to address the concerns which the Magistrate had about the appellant’s previous record, particularly in light of the fact that many of the appellant’s transgressions involved only parking fines. It was further said that in proceeding in the manner in which she did the Magistrate acted contrary to s 15(4) of the Expiation of Offences Act 1996 (SA). That section states:
15—Effect of expiation
…
(4)The expiation of an offence under this Act (or the entry into an arrangement under this Act)—
(a)     does not constitute an admission of guilt or of any civil liability; and
(b)     will not be regarded as evidence tending to establish guilt or any civil liability; and
(c)     cannot be referred to in any report furnished to a court for the purposes of determining sentence for any offence.
…
[emphasis added]
The appellant submitted that the Magistrate wrongly used the list of expiated offences to support her findings that the appellant had a disregard for the law and that the offending was therefore contumacious.
The appellant further submitted that in light of his prior good character and record, a sentence of imprisonment was manifestly excessive and contrary to the principles set down in s 11 of the Criminal Law (Sentencing) Act 1988 (SA). That section dictates, in effect, that a sentence of imprisonment is a sentence of last resort. It was said that the Magistrate overlooked the appellant’s explanation for driving whilst disqualified. That explanation was that he had mixed up his dates and was wrong about the starting date of the disqualification. In these circumstances particularly where no point had been taken by the prosecution, the appellant complained it was not correct to describe his offending as contumacious.
In my view what transpired during the sentencing hearing as described by the appellant’s then counsel in the affidavit filed, does not disclose that the appellant was denied the opportunity to make full submissions both as to his personal antecedents, and the history of expiated offences.
It is one thing to make a conscious choice to cease making submissions. It is quite another to be actually prevented from so doing. It is regrettable that the appellant’s counsel, given the Magistrate’s attitude, appears to have voluntarily refrained from making further submissions. On the basis of the information before me, I am not prepared to find that the circumstances were such that the appellant was effectively denied the opportunity to make whatever submissions were necessary. Furthermore, it is clear from the affidavit filed that submissions regarding the history of expiated offences were made, albeit briefly, and it was pointed out that the majority of the previous expiated offences did not attract demerit points.
It is plain from s 15(4) of the Expiation of Offences Act 1996 (SA) that a person’s record of expiated offences does not constitute an admission of guilt and cannot be used for the purpose of determining sentence for an offence. However, here the appellant conceded the past offences after having been shown the list. That admission having been specifically made, I do not consider it is open to the appellant to now complain that there has been any breach of s 15(4) of the Expiation of Offences Act 1996 (SA).
As Bleby J observed in R v Maxwell[1] there is something quite unique about this offence, in that a background of prior breaches of the road rules is inherent in the very nature of the offence:[2]
What aggravates this type of offence is the reason for, and circumstances of the driving itself, and the nature and extent of the disregard of the law, given that the disqualification itself will invariably have been imposed by a court or competent statutory authority because of some other breaches of the law. Unlike many other offences, the offender's previous record may well indicate a continuing attitude of disobedience to the law which is directly relevant in assessing the gravity of the offence in question.
[1] (1998) 102 A Crim R 374.
[2] R v Maxwell (1998) 102 A Crim R 374 at 379.
In Police v Nissen[3] this Court (Kourakis CJ and David J, Gray J dissenting) again discussed the sentencing principles to be applied by Magistrates in sentencing for the offence of driving whilst disqualified. After careful analysis of the judgment in Police v Cadd,[4] Kourakis CJ said:[5]
As the judgments of Doyle CJ and Duggan J show, general deterrence will always have an important part to play in sentencing for offences of this kind. The sentences of disqualification and suspension imposed on traffic offenders are critically important in ensuring obedience to the rules of the road and thereby the safety of the public. Persons subject to disqualification orders should be left in no doubt about the serious consequences of disregarding them whether they do so occasionally, frequently or totally. Plainly enough, in a case of “total disregard” of the order, it would require a particularly powerful combination of mitigatory circumstances to support a sentence other than imprisonment but even lesser degrees of contumacy must be strongly discouraged.
[3] (2014) 120 SASR 50.
[4] (1997) 69 SASR 150.
[5] Police v Nissen (2014) 120 SASR 50 at [20].
As Kourakis CJ pointed out, there is nothing in the judgments in Cadd to elevate a finding of contumacy as a necessary precondition to a sentence of imprisonment.[6] He then said:[7]
It is not the ratio of the decision [in Cadd] and is not the only proposition for which Cadd is authority. Given the restrictive definition of “contumacious” proffered by Mullighan J, that minimum standard will apply to very few cases because there are very few disqualified persons who continue to drive precisely as they had before the orders were made. An order of disqualification will usually moderate a defendant's driving behaviour at least to some extent. However, as I have already observed, any disregard for orders of disqualification must be deterred. It is not for the subject of the order for disqualification to judge when his or her personal circumstances justify a refusal to comply with a judicial, legislative or administrative order.
…
The financial and human cost of personal injury and property damage caused by traffic offences weighs heavily on the community. The most effective measures for deterring serious and persistent traffic offenders and thereby protecting the public are licence disqualifications and suspensions. As King CJ observed in Coombe v Douris, those orders are ineffective if they are generally disregarded. Driving in contravention of a licence disqualification or suspension is difficult to detect and, for that reason, it is critical that when an offender is apprehended the disqualification and suspension orders are strongly enforced.
The feature of an offence of driving whilst disqualified from holding a licence, or whilst a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving whilst holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender's personal circumstances.
The measure of an offender's attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach.
It can generally be inferred that a person who drives when disqualified, or whilst holding a suspended licence, after having been convicted of an earlier offence, has a contempt for or, at least, a dismissive attitude to orders of disqualification or suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence.
[footnote omitted]
[6] Police v Nissen (2014) 120 SASR 50 at [24].
[7] Police v Nissen (2014) 120 SASR 50 at [24]-[29].
Here it was accepted that the appellant received a notice of licence disqualification, which he had acknowledged. That notice informed the appellant quite clearly of the period of disqualification. It is evident from the affidavit of the solicitor filed on this appeal that the appellant was well aware of the commencement of his licence disqualification because he attempted to change it. The explanation which he proffered in the circumstances does not indicate that the appellant was under a misapprehension about the status of his licence disqualification or that he had a genuine belief he could lawfully drive a motor vehicle on the day when he did. He knew his licence disqualification “was coming up but didn’t know it was there yet”. His explanation for driving the vehicle was “to calm down after the gym”.
In these circumstances it was open to the Magistrate to find that the appellant’s offending was indeed contumacious. The appellant’s response to the police does not suggest that he was unaware of the fact of his disqualification or its duration. It was open to the Magistrate to find that the appellant had chosen to ignore or disregard the fact of his disqualification and drive in circumstances where there was no pressing necessity or urgency to do so.
At the very least, the attitude displayed by the appellant supported a finding that his attitude towards the disqualification was dismissive.
In these circumstances I do not consider that the Magistrate has made any error in imposing a sentence of imprisonment, or in the length of the term of imprisonment. The decision to suspend the term of imprisonment was a matter well within the exercise of the Magistrate’s discretion.
Furthermore, the Magistrate was doing no more than faithfully applying well established principles laid down for the guidance of Magistrates in Cadd and reiterated by this Court in Nissen.
The findings of fact were open to her Honour; she had regard to all relevant matters. It has not been demonstrated that the Magistrate wrongly took into account the appellant’s admitted previous offending. It is true that the majority of the previous offences were for parking fines only, however there were a number of speeding offences which demonstrated the appellant’s disregard for the road rules.
In my view, the Magistrate was right to categorise the offending in these circumstances as serious.
The statutory maximum penalty for this offence is six months imprisonment. A sentence of 10 days imprisonment reduced to seven days for the appellant’s guilty plea appropriately reflected the fact that this was the appellant’s first offence for driving whilst disqualified.
The appeal is dismissed.