Pearce v Police No. Scgrg-00-644

PEARCE v POLICE
[2000] SASC 284

Magistrates Appeal

ex tempore

Gray J The appellant, Andrew James Pearce, was charged with driving whilst disqualified from holding or obtaining a licence and driving within a speed zone at a greater speed than the speed fixed for that zone. The appellant was detected by laser on the Main South Road in the early hours of 26 May 1999, travelling at a speed of 115 kph in a 80 kph zone. He was further charged with assault at Moana on 7 November 1999. He pleaded guilty to all charges.
The magistrate considered the appellant's conduct in driving whilst disqualified to be contumacious. He invoked section 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) and imposed a sentence of imprisonment of one month. He declined to suspend the sentence.
On the count of assault, he imposed a sentence of imprisonment of three months to be served cumulatively with the sentence of one month, making a total of four months imprisonment. Again he declined to suspend the sentence.
The magistrate then had regard to s 38(2a) of the Sentencing Act. He directed that the appellant serve one month in prison and suspended the remainder of the term on the condition that upon his release, the appellant enter into a bond for a period of three months. He ordered that the appellant pay costs totalling $299.00.
The appellant had been convicted on 21 October 1998 of driving in a manner dangerous to the public. On that occasion, he was fined $300.00 and disqualified from holding or obtaining a licence for a period of eight months.
The appellant's submission to the court (which accorded with the account given to the police shortly after the offence) was that he had received a letter from the Registrar of Motor Vehicles, the content of which he mistook as meaning that his licence disqualification had expired. It was said that his conduct was an innocent misadventure. It was not suggested, that he had a defence to the charge but it was said that his conduct in the circumstances was not contumacious.
In Police v Cadd[1] Mullighan J said at (178-179):
" I think there should be a standard fixed for their guidance given the seriousness of the offence and its apparent prevalence.
That standard, accepting these matters and giving appropriate emphasis to general deterrence should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case. I use the word “contumacious” in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at 542-543. It means 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. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in ss 10 and 11 of the Criminal Law (Sentencing) Act and established sentencing principles are sufficient further guide to the sentencer."
[1] (1997) 69 SASR 150
Doyle CJ in an addendum to his reasons said at (171):
"That approach, [referring to the passage cited above] therefore, commands majority support from the court and should be followed by magistrates and in appeals from magistrates."
The test of contumacy is directed to the state of mind or attitude of the offender. On each occasion, a court is called on to consider the penalty for the offence of driving whilst disqualified, there is a need to determine whether the circumstances give rise to a contumacious breach[2]. To be contumacious, the offender must have an attitude of total disregard or have acted in circumstances of deliberate disobedience. This is to be contrasted to wilful conduct. The ultimate question is whether the requisite attitude of defiance on the part of the offender has been established. Necessarily this issue must be determined as a matter of fact in each case.
[2] Johns v Police unreported 24 June 1998 Judgment No S6729
In this matter, the magistrate remarked as follows:
"The defendant says, or it is submitted on his behalf, that the terms of the letter are not expressed in plain English, and that the defendant misconstrued the effect thereof. This was, in his mind, a mistake as to the legal consequences or innocent inadvertence."
The acceptance of this submission would appear to negate an attitude of defiance. Counsel for the respondent accepted that the error made by the appellant was not entirely unreasonable. It follows that the conduct of the appellant was not contumacious. The magistrate erred in finding the conduct to be contumacious. The sentence imposed must be reviewed.
The assault occurred at about 9.00pm on 7 November 1999. The appellant was returning children to his former wife following a period of contact. There was an argument between the appellant and the victim, his former wife's new partner. He struck the victim with an open hand and then wrestled him to the ground. Minor injuries were sustained. The appellant had no prior convictions for any crime of violence.
On the hearing of this appeal, evidence was tendered without objection establishing that the appellant had struck the victim as he understood that his daughter did not wish to return to her mother as she had been physically abused with a belt by the victim.
The appellant had no previous history of violence. His conduct was out of character. The psychological report of Mr Fugler supported the appellant's submission that further incidents were unlikely. Mr Fugler considered the incident to be "an over expression of repressed dissatisfaction" concerning access to his children. He considered that appropriate Family Court orders would create stability and consistency and should be put in place and noted that the appellant had already made an application to the Family Court. The cumulative effect of these matters leads to the conclusion that the appellant is unlikely to offend again.
The magistrate said that he was unable to conclude that the appellant was unlikely to offend again. In so concluding, the magistrate was in error.
Further, as a result of the provisions of section 38(2) of the Sentencing Act, the error in regard to the driving charges precluded the magistrate from suspending the sentence of imprisonment imposed on the charge of assault. Counsel for the respondent accepted that this error permeated the entire sentencing process.
As a result of these matters it is necessary for the sentence for the offence of assault to be reconsidered.
The appellant is aged 33 years and is the father of six children. He had been in full time employment as an electrician until he suffered injury. As a result, his recent employment has been casual and intermittent. He spent five days in custody following his sentence and was then granted bail pending appeal. In all the circumstances, I consider a suspended sentence of one month's imprisonment with respect to the offence of driving whilst disqualified from holding or obtaining a licence to be an appropriate penalty. I consider that the appellant is adequately punished by the recording of convictions for the offences of driving at an excessive speed and for assault.
In the circumstances I make the following orders:
The appeal is allowed.

The sentences imposed by the magistrate are set aside.

On the charge of driving whilst disqualified I order that the appellant be imprisoned for a period of one month. I suspend that sentence on the appellant entering into a bond in the sum of $250.00 to be of good behaviour for a period of two years.

That there be a conviction recorded on the charge of driving within a speed zone at a greater speed than the speed fixed for that zone.

That there be a conviction recorded on the charge of assault.

That the appellant pay the costs incurred in the Magistrates Court in the amount of $299.00.

LIST OF CITATIONS IN JUDGMENT IN ORDER OF APPEARANCE

(1997) 69 SASR 150
Johns v Police unreported 24 June 1998 Judgment No S6729

[2000] SASC 284

8 August 2000