Petersons v Police No. Scciv-03-836

[2003] SASC 271

PETERSONS v POLICE
[2003] SASC 271

Magistrates Appeal:  Criminal

1. PERRY J  (ex tempore)     The appellant appeals against the sentence imposed upon him following his plea of guilty in the Magistrates Court sitting at Adelaide to multiple traffic offences.

2. The first group of offences relates to a passage of driving on 17 February 2001, as to which the appellant pleaded guilty to driving at a speed dangerous to the public; failing to stop when requested by the police; failing to stop at a stop line when there was a red light; and driving whilst unlicensed.

3. The next offences were committed on 21 May 2001, namely driving whilst disqualified and failing to truly answer questions to a police officer.

4. The next offences were committed ten days later, on 31 May 2001, namely driving without due care and refusing to submit to a breath analysis.

5. On 17 August 2002 he was found driving whilst disqualified.

6. On 31 December 2002 he committed the same offence, that is, driving whilst disqualified.

7. On 9 January 2003 he was again driving whilst disqualified and found also to be exceeding the speed limit.

8. Apart from those traffic matters, the appellant was also sentenced for an offence of throwing a firecracker on 1 January 2000 and for disorderly behaviour and giving a false name and address on 20 December 2002.

9. The penalty imposed with respect to the throwing of the firecracker was a conviction and a fine of $100. With respect to the disorderly behaviour and giving a false name and address, the sentencing magistrate entered a conviction and fine of $200.

10. I do not deal further with the penalty imposed on the last two counts, as these were not subject to any challenge on the hearing of the appeal.

11. The appeal focused on the penalty imposed on the traffic matters, more particularly those which attracted, as will be seen, terms of imprisonment.

12. The sentences imposed on 30 June 2003 with respect to the traffic matters were as follows:

2001
Feb 17	Driving at a speed dangerous; failure to stop; driving unlicensed	Convicted and fined $500 and disqualified from driving for 3 years
May 21	Driving disqualified and failing to truly answer questions	14 days imprisonment
2002
Aug 17	Driving disqualified	28 days imprisonment, cumulative upon the 14 days imprisonment referred to above
Dec 31	Driving disqualified	Conviction and sentence of imprisonment of 28 days cumulative on the previous sentences
2003
Jan 9	Driving disqualified and exceed speed	Conviction and sentence of imprisonment of 18 days to be served concurrently with the other sentences.

1. In the result, allowing for the term ordered to be served concurrently, the total head sentence was 70 days imprisonment.

2. The appellant is aged 24 years. He is engaged to be married.

3. The learned sentencing magistrate had before her a reference from the appellant’s fiancée’s mother who spoke well of him and said that she believed the appellant recognised the problems which he had had and that he regretted what he had done.

4. The magistrate also had before her a reference from his supervisor at Boral, with whom he is employed as a mechanic fitter.

5. Apparently he has been in full-time employment with that company for the last 15 months and has impressed them as a reliable and hardworking young man.

6. On the other hand, the circumstances of the offending leave me wondering how anyone could so persistently and defiantly breach the traffic laws.

7. I have had the benefit of an affidavit sworn by the prosecutor in the court below in which he summarises the immediate circumstances of each of the offences.

8. As for those which were committed on 17 February 2001, he was riding a motorcycle on Bridge Road at Para Hills when he was followed by the police at speeds up to 160 kilometres per hour in a 60 kilometre zone. He was observed going through a red light and eventually the police decided to give up the chase.

9. On 21 May 2001 he was stopped and given a defect notice as his vehicle was giving out excessive noise. He gave a false name and false address, which was easily discovered when a licence check was done.

10. On 17 August 2002 the appellant was on Montacute Road driving without P plates and whilst he was disqualified. As Mr Stokes, who appeared for the appellant on the hearing of appeal, pointed out, it is not clear what suspension then applied to the appellant, although I understand from Mr Ahern, who appeared for the respondent, that he was subject to overlapping periods of suspension or licence disqualifications.

11. As for the offence which occurred on 31 December 2002, the appellant was driving a vehicle west along Montacute Road at Pooraka when stopped by police because he was using his mobile phone. It was discovered that he was driving whilst disqualified. The appellant stated that he thought his disqualification period had ended.

12. As for the offence which occurred on 9 January 2003, the appellant was followed driving at Houghton at 105 kilometres an hour in an 80 kilometre per hour zone.

13. On that occasion, the appellant stated that he knew that his licence was disqualified and he was just going for a quick drive.

14. In her remarks on sentencing, the learned sentencing magistrate referred at length to the decision of the Full Court Police v Cadd and Ors.[1] She correctly explained the principles which find expression in that case, but for reasons which I will come to in my view there is substance in the argument that she might have better devised a sentencing package, which while giving expression to those principles, would offer greater hope for rehabilitation of this young man.

    [1] (1997) 61 SASR 150.

15. Apart from the offences now in question, the appellant has a bad driving record. The court below was informed that he has five prior convictions for driving an unregistered vehicle, four prior convictions for driving without insurance, three for driving without a licence, one for driving at a dangerous speed, one for driving with an excess blood alcohol, one for driving without due care, one for driving at a dangerous speed and a prior conviction for larceny.

16. That accumulation of prior convictions was committed between 1996 and 2001.

17. It is, indeed, unfortunate that a young man with a good work history finds himself facing a prison term, but the passages of driving which resulted in the various offences committed over a three year period or thereabouts can only be described as appalling. The appellant clearly had no respect for the traffic laws and considered himself free to disregard them and the various periods of disqualification to which he was subjected, with impunity.

18. My first impression in this matter, before hearing Mr Stokes, was that it was hard to see how in imposing the sentences which she did the learned sentencing magistrate erred.

19. Mr Stokes pointed out, however, that the first two of the offences which received terms of imprisonment, namely those committed in May 2001 and August 2002 were occasions upon which the appellant was driving for work purposes. Mr Stokes suggested that, in those circumstances, there were at least some argument available that they might not have been regarded as contumacious.

20. I rather think that they were contumacious in the sense in which that word was used in the Police v Cadd. I regard as contumacious any significant passage of driving embarked upon by a  defendant at a time when he or she knows that they are disqualified, and drive in defiance of the disqualification and where there is no reasonable excuse, such as some situation of emergency or when the passage of driving is not trivial.

21. In any event, it could not possibly be suggested, as Mr Stokes conceded, that the passage of driving on 9 January 2003 was other than contumacious. As I have said, the appellant conceded to the police that he knew he was disqualified and did not offer any good reason as to why he was on the road on that occasion.

22. The gravamen of Mr Stokes’ argument focused upon the likely effect of imprisonment or any lengthy term of imprisonment upon the appellant’s employment prospects. In that respect, without opposition from Mr Ahern, I admitted in evidence an affidavit sworn only today in which the appellant stated that he had been advised by his employer that he will be laid off if he goes to gaol. Although he could re-apply for employment with Boral upon his release, no guarantee would be offered as to the prospects of re-employment in that situation.

23. I must say that I have wavered in my view as to the propriety of the sentences pronounced by the sentencing magistrate.

24. At the end of the day, not without some hesitation, I am prepared to accept the argument which was eventually put by Mr Stokes that in all the circumstances a sentencing package should have been devised which would allow a period during which the appellant is released on a supervised bond. It is clear that he needs some help to give him some direction in his attitude to driving and it may be that he might benefit from a structured package which would enable him to have that opportunity.

25. In the circumstances, I do not propose to interfere with the various sentences of imprisonment which were ordered.

26. However, I would allow the appeal for the purpose of directing that the 14 days imprisonment imposed with respect to the offence of 21 May 2001 be served in custody, and that the remaining three periods of 28 days imprisonment for the offences respectively of 17 August 2002, 31 December 2002 and 9 January 2003 be served cumulatively, that is, a total of 84 days, but that the total sentence of 84 days for those offences be suspended upon the entry by the appellant into a bond in a sum of $1000 to be of good behaviour for a period of two years, and throughout the term of the bond to be under the supervision of a probation officer and to comply with the directions of that officer as to counselling or participation in any other program directed towards his rehabilitation.

27. All remaining orders made by the sentencing magistrate are to remain in full force and effect.

28. I direct that the matter be referred back to the Magistrates Court for the purpose of taking the appellant into custody and for the imposition of a bond in those terms.

    [FOLLOWING DISCUSSION RE COSTS]

29. PERRY J:              I order that the respondent pay the appellant’s costs of and incidental to the appeal in the lump sum of $165.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1. (1997) 61 SASR 150.