Pennell v Police No. Scgrg-00-835

[2000] SASC 355

PENNELL v POLICE
[2000] SASC 355

Magistrates Appeal

1................ BLEBY J........................ This is an appeal from a decision of a Magistrate sitting at Port Adelaide against a sentence imposed upon the appellant for an offence of driving while disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the Motor Vehicles Act 1959. The Magistrate recorded a conviction and sentenced the appellant to four weeks’ imprisonment, which he declined to suspend.

1. The appellant was convicted of a number of driving offences on both 27 July and 30 July 1999. The sentences imposed on those days included three separate orders of disqualification from holding or obtaining a driver’s licence. The longest period of disqualification was six months from 30 July 1999.

2. The present offence occurred on 2 January 2000, when the appellant was driving to the beach. He pleaded guilty, but claimed that he mistakenly thought the period of disqualification was completed, through a simple confusion of dates. At least, that was the submission of his counsel before the Magistrate. He had allegedly told the police, when apprehended, that he knew he was disqualified, but had forgotten, and that was why he was driving. The Magistrate seems to have proceeded on the assumption that the appellant was mistaken as to the expiry of the period of disqualification. As that is the most favourable position from the appellant’s point of view, I shall proceed on the same basis. However, it is unsatisfactory, in most cases, for such apparent conflict not to be resolved, if necessary, by evidence: Wilson v Police [1999] SASC 244 at [11]); Police v Cadd (1997) 69 SASR 150 per Doyle CJ at 169.

3. The Magistrate said that the appellant’s mistake was a mistake of law on his part, and he decided to “disregard it completely”. His Honour said that if the appellant was in doubt as to the relevant dates, he should have made inquiries to find out the true position. However, his counsel’s submissions did not suggest that the appellant was in any doubt as to the time of expiry of the disqualification period. The submissions proceeded on the basis that the appellant had made a mistake in the calculation of the date.

4. The Magistrate referred to Cadd (supra) and concluded that the appellant’s offending was contumacious. His Honour referred to the offending as involving “a deliberate disregard to what [the appellant] had been told in Court”. He said:

   “This defendant with such an extensive criminal history having been imprisoned on a prior occasion for drive disqualified had a duty to be extra careful not to think, ‘my disqualification is up’ and to hop into his car with total disregard of what happened in Court.”

5. Having regard to s 38 of the Criminal Law (Sentencing) Act 1988, the Magistrate found that there was “nothing unusual” about the appellant, and there was no justification in suspending the appellant’s imprisonment.

6. The appellant now appeals to this Court on the following grounds:

   (1)    that the Magistrate erred by finding the offending contumacious;

   (2)... that the Magistrate erred by stating that the appellant had twenty pages of criminal convictions;

   (3)... that the Magistrate erred in imposing an immediate custodial sentence;

   (4)... that the sentence was manifestly excessive;

   and

   (5)... that the Magistrate erred in not suspending the term of imprisonment.

7. I turn to the first ground of appeal. It was established in Cadd (supra) that in an ordinary case of contumacious offending for driving whilst disqualified by a first offender, imprisonment will be the appropriate sentence. As to what might constitute contumaciousness, Mullighan J said at 179:

   “I use the word ‘contumacious’ in the sense that it is understood in the law: see Whitham v Holloway (1995) 183 CLR 525 at 542-543. It means something more than the 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 this case, the appellant has claimed that the offending arose from confusion in the dates of the disqualification. The Magistrate, as I have said, seems to have accepted that fact, but he disregarded it as an explanation. In my opinion, he was wrong to do so. Such a state of mind is a relevant factor in assessing whether the offending was contumacious.  That, in turn, has an important bearing on the sentence which ought to be imposed, whether for a first offence (as in Cadd) or for a second offence, as this one was.

1. The Magistrate called the appellant’s confusion a “mistake of law” and asserted that, as such, it was irrelevant. In my opinion, even if a mistake of law is irrelevant to criminal liability (and I make no comment about that), a mistake of this kind is relevant to sentencing. The Magistrate did not express disbelief at the appellant’s explanation for the offending. He merely said that he disregarded it. In my opinion, he should have had regard to the explanation if, as appears to be the case, he accepted it.

2. I am of the view that in those circumstances, as apparently accepted by the Magistrate, the offending was not contumacious. It did not involve a deliberate and determined disobedience of the order of the Court, nor did it involve, as might have been the case if the factual explanation were not accepted circumstances of reckless indifference, such as might also warrant an immediate custodial sentence: Johns v Police (Unreported, Lander J, 24 June 1998, Judgment No S6729) at pp3-7; Sheean v Police [1999] SASC 187 per Perry J at [15], [16]; Maxwell (1998) 102 A Crim R 374 per Bleby J at 379.

3. It is not accurate in this context to refer, as the Magistrate did, to the fact that the appellant had a duty to know what the dates of his disqualification were. Of course, he had such a duty. But in determining whether offending is contumacious, subjective considerations are relevant, rather than objective assessments of an appropriate approach to disqualification. It follows that on this ground alone it can be said that the Magistrate erred, and the penalty must be reviewed. However, it does not necessarily follow that the penalty imposed is excessive. What should be the proper sentence will emerge in my consideration of the other grounds of appeal.

4. As to ground two, the appellant submits that the Magistrate erred by stating that the appellant had twenty pages of criminal convictions. The Magistrate said in his sentencing remarks:

   “This defendant comes before the Court with an extensive criminal history. He is aged thirty four with 20 pages of criminal convictions. A whole variety of offences of breaks, unlawful possession, numerous property offences, assault occasioning, firearm offences, larceny, false pretences and drive disqualified.”

In making his remark about the appellant having twenty pages of criminal convictions, the Magistrate was no doubt referring to a document tendered by the prosecutor entitled “Offender History Report”. This document is twenty one pages in length. The appellant’s list of convictions begins at p 3 of the document, while pp 1 and 2 contain a physical description of the appellant and his previous addresses. Strictly speaking, therefore, the document contains eighteen pages of convictions, although on some pages there are only a few listed. Nevertheless, it is in a form commonly, if not universally, used in this State. The form of document would be familiar to all who practise in the jurisdiction and to all Magistrates. As such, its volume gives some indication of the extent of previous offending.

1. In my opinion, however, what is important is not so much the document recording the previous convictions, but the convictions themselves. There can certainly be no argument with the Magistrate’s conclusion that the appellant’s criminal history is extensive. There are examples of all the offences mentioned by the Magistrate included in it. I do not think that anything can turn on this ground of appeal.

2. I turn to consider whether the imposition of a custodial sentence was justified, even though the offending may not be properly described as contumacious. I have just mentioned the extensive criminal history of the appellant. He has, among his many convictions, a conviction in June 1995 for driving whilst disqualified in August 1994. For that offence he was sentenced to imprisonment for one month, although that sentence was served concurrently with an earlier and much longer period of imprisonment. It was also imposed before the decision of this Court in Cadd.  I reject the submission of Mr Clarke, for the appellant, that because it was a period of imprisonment which was concurrent with another, that in some way affected his state of mind with respect to the offence.  As well as that offence, there are many other driving offences, such as driving with no licence, driving an unregistered vehicle, driving without due care and the like. Whatever the appellant’s explanation for his conduct might be, and whilst I have concluded that the appellant’s offending was not contumacious in the sense contemplated by Cadd, I think nevertheless that the only sentence which can properly be imposed in these circumstances is a custodial one. The appellant’s previous criminal history reveals an inability to use motor vehicles in a responsible manner, and a reckless disregard for the conditions under which a motor vehicle may be driven. I think also that he should clearly have taken greater care than he did in ensuring that he abided by the disqualification the subject of this offence. Personal deterrence must be an important consideration in this case, given the appellant’s history of driving offences, and in particular, his previous conviction of this offence.  There are also considerations of general deterrence for what is a prevalent offence.

3. I am unable to conclude, in the circumstances, that the sentence imposed by the Magistrate was manifestly excessive as alleged in ground four. As a second offence, this was an offence punishable by up to two years’ imprisonment. In the case of a second offender, with many other convictions for driving and other offences, I do not think it can be said that a sentence of four weeks’ imprisonment was anything more than was reasonable.

4. The most difficult aspect of this case is whether the term of imprisonment imposed by the Magistrate ought to be suspended. In this regard, it is important to note that the sentencing standards set down by the Full Court in Cadd are not directly applicable as the offending was not contumacious. Nor is this the appellant’s first offence.

5. However, there is some suggestion that at least some of the appellant’s previous offending has been related to his addiction to amphetamines. At the time of the hearing in the Magistrates Court, he was undergoing treatment, with some indications of success and of the fact that the appellant was beginning to take a grip on his life.  I have been told, in the hearing before me, that he is now employed, for four days a week, as a forklift driver.  I would be reluctant to jeopardise any genuine attempt at rehabilitation by the imposition of an immediate custodial sentence.

6. Due to the particular circumstances of this case, and not without some hesitation, considering the extent of the appellant’s criminal history involving motor vehicles, I am persuaded that the appellant should be given a chance to abide by the terms of a bond, and that the sentence should be suspended for that purpose. However, the appellant must also realise the seriousness of the offence and the need to avoid mistakes like that in the future. Suspension of the sentence of imprisonment by itself is not enough. I therefore intend to impose a further licence disqualification of six months from today.

7. In view of the fact that the appellant has already served four days of his sentence before he was released on bail pending this appeal, I think it is appropriate that I should re-sentence the appellant, taking that period into account.

8. I allow the appeal. I set aside the sentence of imprisonment imposed by the Magistrate. I sentence the appellant to a period of twenty four days’ imprisonment, but I order that that sentence be suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of fifteen months. The appellant will be disqualified from holding or obtaining a driver’s licence for a period of six months from midnight tonight, that is, until midnight on 4 April 2001.