Peart v Police

PEART v POLICE
[2003] SASC 274
Magistrates Appeal: Criminal

PERRY J (ex tempore) This is an appeal against the penalty imposed upon the appellant following his plea of guilty in the Magistrates Court sitting at Adelaide to a charge that on 8 March 2003 at Glengowrie he drove a motor vehicle on Diagonal Road whilst disqualified from holding or obtaining a driver’s licence.
After recording a conviction, the sentencing magistrate imposed a penalty of 21 days imprisonment, which was suspended upon the entry by the appellant into a bond in the sum of $100 to be of good behaviour for a period of 12 months.
Separately, the sentencing magistrate ordered that the appellant be disqualified from holding or obtaining a driving licence for six months, effective from the day following his appearance in the Magistrates Court, that is from 18 June 2003.
In his notice of appeal, the appellant advances one ground only, namely that the sentence was manifestly excessive.
I have had the benefit of an affidavit from the prosecutor who presented the matter in the court below. According to his affidavit, he informed the magistrate that at about 12.32 am on the morning in question, the appellant was observed driving with two male companions on Diagonal Road at Glengowrie. His vehicle was stopped due to his manner of driving, which is otherwise unexplained.
When asked to step out of the car and produce his licence, the appellant told the officer that his licence had been disqualified by a court order which, not surprisingly, was quickly confirmed.
The arresting officers reported that the appellant was polite, remorseful and co-operative when he was arrested.
It appears that the licence disqualification was imposed in December 2002 with respect to offences of driving at a dangerous speed and driving at speed while holding a provisional licence, the offence date being 13 September 2002. The defendant was sentenced to 52 hours of community service and was disqualified from driving for six months, commencing on 12 December 2003.
It follows that the offence now in question was committed a little less than halfway through the period of disqualification which was then ordered.
The sentencing magistrate in the present matter gave short sentencing remarks in which he noted that the appellant was aged 18, and had come down to the city after leaving his family, who resided in the country. He had found accommodation and was about to start a new job.
Ms McGrath, who appeared for the appellant in the court below and also on the hearing of the appeal, has submitted an affidavit in which she explained the submissions which she made to the sentencing magistrate and which she repeated before me.
The first point which she took was that the remarks on sentence did not indicate why the magistrate chose to adopt the sentencing option which he did, and what discount the appellant was allowed by reference to his plea of guilty. She added during the course of argument that the magistrate should also have indicated why he apparently thought that the matter involved a contumacious passage of driving, justifying a licence disqualification.
I do not accept that the sentencing remarks are not adequate. Busy magistrates running, as they often do, a long list of hearings, are obliged to give sentencing remarks which identify briefly the reason why the sentence is being imposed, but they cannot be expected to deal with every argument which might have been put to them, or cross off every possible sentencing option.
It is true that the magistrate should have indicated the discount which he was allowing for the plea of guilty, but the omission to do so is not itself indicative of appealable error. At the end of the day, the question is whether or not the sentence in fact imposed has been shown to be manifestly excessive.
In her most helpful submissions, Ms McGrath contended that in any event this passage of driving was not contumacious within the meaning of the principles expounded in the well-known case of R v Cadd and Ors.[1]
[1] (1997) 69 SASR 150.
The immediate circumstances in which the appellant came to drive are set out in Ms McGrath’s affidavit. It appears that the appellant was with a group of friends who were drinking at his home, but the appellant did not consume any alcohol. A suggestion was made by one of the appellant’s guests that the group travel to Glenelg to meet some friends, and, to use Ms McGrath’s words, the appellant “succumbed to the pressure of his peers and foolishly agreed to drive them”. Ms McGrath submitted that in these circumstances Mr Peart lacked the necessary element of defiance to properly satisfy the concept of “contumacy”.
In my opinion, that argument should be rejected.
I repeat what I said in the case of Bates v Police:[2]
“... I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.”
[2] (1997) 70 SASR 66 at 73.
I repeated observations to much the same effect in Shearman.[3]
[3] (1999) 29 MVR 175.
In this case, although Ms McGrath refers to so-called “pressure” from his peers, it does not seem to me that there is anything that amounts to a sufficient explanation for his deliberate act of driving on the morning in question. The fact remains that he well knew that he was disqualified from driving. He apparently was the only one sober enough to drive the party to another venue.
In my view, this was a clear case of a contumacious act of driving.
Ms McGrath also submitted that the magistrate erred in imposing a sentence of imprisonment, albeit suspended, upon a young man of only 18 years who had no substantial prior record of offending. Indeed, there is no evidence of other offending other than the offence which resulted in his disqualification.
I have carefully considered that argument, which was put very forcefully and very earnestly by Ms McGrath, and I think it is an argument that has some weight. One does not lightly order a term of imprisonment for a young man of this age.
But, at the end of the day, it seems to me that while, if I had been sitting in the magistrate’s place, I may not have taken that course, the sentence imposed was within the proper exercise of the magistrate’s discretion. This Court should not lightly interfere with the view taken by experienced magistrates as to what might be necessary at a particular time to impose by way of penalty for an offence of this kind, which is regrettably all too common and difficult to detect.
On the other hand, I think that Ms McGrath is on firmer ground when she argues that the magistrate erred in imposing, as an additional penalty, a further period of licence disqualification; in this case, a further period of six months.
In that respect, she quite properly referred to dicta of von Doussa J, as he then was, in Saddler v Crossman,[4] where he observed that if immediate imprisonment is ordered, generally speaking, it should not be accompanied by a licence disqualification; to do so smacks of imposing a double penalty. I accepted that approach in the case of Khammash v Police (SA).[5]
[4] (1988) 47 SASR 331 at 338.
[5] (1999) 29 MVR 561.
While it is true that von Doussa J was referring to “immediate imprisonment”, which I assume means a term of imprisonment which is intended to take effect there and then, and not a suspended term of imprisonment, in my view, for the purposes of sentencing principles, in this context, I do not think that there is any difference.
The imposition of a suspended term of imprisonment is a real punishment, although public opinion might be thought to disagree.
In all the circumstances of this case, I think that it was not a proper exercise of the sentencing discretion to add to it a further period of licence disqualification. In making that observation, I take into account a factor which was pointed out to the magistrate, namely the adverse effect which a further disqualification would have on the appellant’s prospects of employment.
Not without some hesitation, I have reached the view that the appeal should be allowed for the purpose of quashing the order of suspension, but that otherwise the sentence and orders imposed by the sentencing magistrate should remain in full force and effect.
I so order.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE
1. (1997) 69 SASR 150.
2. (1997) 70 SASR 66 at 73.
3. (1999) 29 MVR 175.
4. (1988) 47 SASR 331 at 338.
5. (1999) 29 MVR 561.

[2003] SASC 274

15 August 2003