Police v Brookman

[2006] SASC 378

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v BROOKMAN

[2006] SASC 378

Judgment of The Honourable Justice Layton

20 December 2006

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - DRIVING OFFENCES

Criminal Law - Prosecution appeal against sentence imposed by Magistrates Court under s 42 of the Magistrates Court Act 1991 (SA) - Particular offences - Driving offences - Driving whilst disqualified - Motor Vehicles Act 1959 (SA) s 91(5) - Respondent pleaded guilty to driving a motor vehicle on a road while there was present in his blood a prescribed concentration of alcohol and driving whilst disqualified - The driving whilst disqualified was the third offence of that type - The Magistrate fined the respondent $2000 in relation to the driving whilst disqualified - Appellant argued sentence imposed was manifestly inadequate - Application of principles enunciated in Police v Cadd & Ors - Failure by the Magistrate to make any specific finding about whether the driving was 'contumacious' - Whether offending should have been characterised as 'contumacious' - Whether respondent had a 'valid reason' to drive - Whether Magistrate gave enough weight to prior record and principles of deterrence - Held: Magistrate erred in finding that the driving was not contumacious - The imposition of a non-custodial sentence was manifestly inadequate - Appeal allowed - Respondent re-sentenced.

Criminal Law (Sentencing) Act 1988 (SA) s 10; s 38; Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 91(5), referred to.
Everett v The Queen (1994) 181 CLR 295; Maxwell (1998) 102 A Crim R 379; Police v Cadd & Ors (1997) 69 SASR 150; R v Osenkowski (1982) 30 SASR 212, applied.
Dinsdale v The Queen (2000) 202 CLR 321; DPP v Ottewell [1970] AC 642; Griffiths v R (1977) 132 CLR 293; Johns v Police [1998] SASC 6729; Police v Hill [2005] SASC 458; R v Hayes (1987) 29 A Crim R 452; R v Hicks (1987) 45 SASR 270; Sheean v Police [1999] SASC 187; Veen (No 2) (1998) 164 CLR 465; York v R (2005) 221 ALR 541, discussed.
Bates v Police (1997) 70 SASR 66; Eldridge v Bates (1989) 51 SASR 532; DPP v Leach (2003) 139 A Crim R 64; Police v Trill [2003] SASC 199; R v Allpass (1993) 72 A Crim R 561; Police v Castelluzzo (1997) 193 LSJS 13; White v Police (2000) 76 SASR 430, considered.

POLICE v BROOKMAN
[2006] SASC 378

Magistrates Appeal:  Criminal

LAYTON J:

Introduction

1. This is a prosecution appeal against sentence pursuant to s 42 of the Magistrates Court Act1991 (SA).

2. On 11 September 2006 the respondent pleaded guilty in the Magistrates Court in Port Pirie to driving a motor vehicle on a road while there was present in his blood a prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA); and driving a motor vehicle whilst disqualified from holding or obtaining a licence to drive a motor vehicle, contrary to s 91(5) of the Motor Vehicles Act 1959 (SA).

3. The Magistrate convicted the respondent in relation to both offences.  For the offence of drink driving, the respondent was fined $900 plus court fees and was disqualified from driving a motor vehicle for a period of 18 months commencing 29 July 2006.  For the offence of driving whilst disqualified, the respondent was fined $2000 plus court fees.

4. The appellant appeals against the sentence imposed for the second offence on the ground that it was manifestly inadequate.

   Circumstances of the offence

5. On 29 July 2006 at about 1:45am police observed a blue Nissan station wagon travelling south on Senate Road, Port Pirie at a rapid speed.  Police followed the vehicle until it parked in a private driveway.  The respondent and another man exited the vehicle.  The respondent was directed to submit to an alcotest, which produced a positive result.  The respondent was then taken to the Port Pirie Police Station where a breath analysis disclosed a blood alcohol reading of 0.132.

6. As a result of police checks it was revealed that the respondent was disqualified from driving.  He had been disqualified for a period of seven months on 20 February 2006 for the offence of driving with excess blood alcohol committed on 18 December 2005.

   Prior convictions

7. The respondent has a number of previous convictions for drink driving, driving an uninsured vehicle, driving an unregistered vehicle, and driving whilst disqualified. He has received penalties including fines, license disqualifications and suspended terms of imprisonment.  He has not to this date received any immediate terms of imprisonment.

8. The following table sets out the respondent’s relevant driving-related convictions and the sentences imposed:

Sentence	Offence	Offence(s)	Sentence
20.2.06	18.12.05	Drive with excess blood alcohol	Fine $500.00 and disqualified  for seven months starting 20.02.06. Note: Defendant warned as to consequences of driving whilst disqualified.
		Drive unregistered motor vehicle	Discharge without penalty
		Duty to hold license or learner’s permit	Fine  $80.00
8.9.03	16.07.03	Drive unregistered motor vehicle	Fine $100.00
		Drive uninsured motor vehicle	Disqualified for three days starting 08.09.03 Note: Defendant warned as to consequences of driving whilst disqualified.
21.10.02	08.08.02	Drive under disqualification	Imprisonment – 40 days head sentence, and suspended sentence bond for 2 years and 180 hours community service
		Drive unregistered motor vehicle	Fine $200.00
		Refuse name and address	Fine $200.00
29.1.02	03.12.01	Drive unregistered motor vehicle	Fine $600 for all three counts and disqualified for nine days starting 29.01.02. Note: Defendant warned as to consequences of driving whilst disqualified
		Drive uninsured motor vehicle
		Drive vehicle without license
4.6.01	15.04.01	Drive unregistered motor vehicle	Fine $110.00 + disqualified for three days starting 05.06.01. Note: Defendant warned as to consequences of driving whilst disqualified.
		Drive uninsured motor vehicle
10.5.99	13.12.98	Disobey learner’s permit	Fine $110.00
12.4.99	23.09.98	Drive in reckless or dangerous manner	Fine $300 for both counts and disqualified for six months starting 12.04.99 Note: Defendant warned as to consequences of driving whilst disqualified.
		Disobey learner’s permit
31.8.98	28.04.98	Drive unregistered vehicle	Fine $50.00
		Drive uninsured motor vehicle	Fine $50.00
		Drive motor vehicle without a licence	Levy only $28.00
		No safety helmet on motor vehicle	Levy only $28.00
17.11.97	19.08.97	Drive under disqualification	Imprisonment – 21 days Head sentence 21 days, suspended sentence bond $200.00 for 12 months + 80 hours community service.
5.3.97	21.12.96	Failure to wear seat belt	Fine $133.00
2.7.97	27.12.96	Speed – exceed by 15-29Km/hr	Fine $150.00 for both counts
		Disobey learner’s permit
7.8.95	14.04.95	Drive with excess blood alcohol	Fine $700.00 for all counts and disqualified for eight months starting 07.08.95. Note: Defendant warned as to consequences of driving whilst disqualified.
		Disobey learner’s permit
		Due care
29.3.95	19.10.94	Drive motor vehicle without a licence	Fine $112.00
29.3.95	14.10.94	Drive motor vehicle without a licence	Fine $112.00
29.3.95	12.10.94	Drive motor vehicle without a licence	Fine $112.00
15.9.94	16.06.94	Drive an unregistered motor vehicle	Fine $150.00 for both counts.
		Drive an uninsured motor vehicle
10.1.94	27.10.93	Drive an unregistered motor vehicle	Fine $30.00
		Drive an uninsured motor vehicle	Fine $50.00 and disqualified for three days.
24.3.93	03.08.92	Drive motor vehicle without a licence	Fine $113.00
9.12.91	17.10.91	Drive motor vehicle without a licence	Fine $200.00

In addition the above driving-related offences, the respondent has further prior offences including convictions for dishonesty and a break and enter building charge for which he was given a two year suspended sentence.

Magistrate’s remarks

1. The learned Magistrate’s sentencing remarks were brief and I set them out in full:

   Shayne Brookman in relation to the charge of driving under disqualification the prosecutor rightly states that you have had two previous suspended sentences. I am completely satisfied that on those occasions the sentencing magistrate would have made it very clear to you that driving under disqualification is a serious offence that attracts a sentence of imprisonment.

   Your driving record suggests you are a man who is more interested in your own priorities than observing the road rules. These matters make your driving very, very serious. However, your guilty plea has been put to me on the basis that you took steps to ensure that you did not drive whilst you were under disqualification however on this day you found yourself in the situation where you had a friend who was distressed and needed your help.

   The prosecutor rightly states there are alternatives in Port Pirie. You are not out in the middle of nowhere. You could have caught a taxi. But sometimes one exercises poor judgment in these situations.

   I am going to deal with you on the basis that you thought at the time there was a valid reason for driving under disqualification.   However, that does not mean that the matter is not serious.  I trust that this will be the last time we will see you in our court.   You can definitely expect to be dealt with most severely in the event that you continue this way.  It is in your own interest to obey the road rules.  I understand you have a daughter age 6 [sic], it’s not going to be much fun for her visiting you in gaol.

   There will be a conviction on count 1 being drink driving and a fine of $900 and a license disqualification for a period of 18 months.  The disqualification will be backdated and commence on 29 July 2006.  You are under disqualification until that 18 month period is over.  You are not allowed to drive as a matter of law.   You will go to gaol on the next occasion.   Do you understand?   I certify you for the interlock scheme.

   As to count 2 the driving under disqualification charge, there will be a conviction and a fine of $2,000.

   I also order you to pay fees, levies and costs.

   Prosecution appeals against sentence

2. A court will only entertain a prosecution appeal against sentence in “rare and exceptional circumstances”, [1] where it is necessary to:

   ·lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;[2]

   ·establish and maintain adequate standards of punishment for crime;[3]

   ·correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crimes; [4]

   ·correct a sentence which was so disproportionate to the seriousness of the crime as to shock the public conscience;[5]  and

   ·ensure, so far as the subject matter permits, that there would be uniformity in sentencing.[6]

   [1] Everett v The Queen (1994) 181 CLR 295, 299. The principles are applicable to this type of appeal as a consequence of Police v Cadd & Ors (1997) 69 SASR 150.

   [2] Griffiths v R  (1977) 137 CLR 293, 310 per Barwick CJ.

   [3] R v Osenkowski (1982) 30 SASR 212, 212-13.

   [4] Ibid.

   [5] Ibid.

   [6] Everett v The Queen (1994) 181 CLR 295, 306.

3. Underpinning the “rare and exceptional” test is the principle against double jeopardy.[7]  Although a prosecution appeal against sentence is not a true “double jeopardy” because there is no res judicata, in a practical sense, it falls within ‘a species of double jeopardy’.[8]  As the Full Court of the Federal Court explained in R v Tait and Bartley:[9]

   …A Crown appeal puts in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal (per Isaacs J in Whittaker v R).[10] The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence.  It was first in jeopardy before the sentencing court.

   [7] York v R (2005) 221 ALR 541, 549 per McHugh J.

   [8] R v Hayes (1987) 29 A Crim R 452, 469 per Kirby P.

   [9] (1979) 24 ALR 473, 476.

   [10] (1928) 41 CLR 230, 248.

4. In addition, appellate courts are generally reluctant to interfere with the discretion of sentencing judges to exercise mercy and leniency.[11]  As King CJ noted in R v Osenkowski:[12]

   It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must be always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.

   [11] R v Osenkowski (1982) 30 SASR 212, 212-13; See also Director of Public Prosecutions v Leach (2003) 139 A Crim R 64, 74 per Eames JA.

   [12] (1982) 30 SASR 212, 213.

5. The onus is on the appellant to establish that this is a case within that category of rare and exceptional cases where the sentencing discretion of the Magistrate should be interfered with.  Having regard to the principles espoused in Everett v The Queen,[13] the appellant must establish that there has been some error in principle which encompasses a manifest inadequacy in sentencing standards.[14]

   [13] (1994) 181 CLR 295.

   [14] Police v Castelluzzo (1997) 193 LSJS 13, 17.

   Submissions of counsel

6. Counsel for the appellant submitted that the learned Magistrate erred in imposing a fine only. It was contended that inadequate weight had been given to the respondent’s previous convictions for driving-related offences, including two counts of driving whilst disqualified which attracted suspended sentences. It was said that the Magistrate failed to characterise the offending as contumacious and failed to give adequate consideration to the principles of general and personal deterrence pursuant to s10(1)(j) of the Criminal Law (Sentencing) Act 1988 (SA). Further, it was submitted that nothing put to the learned Magistrate at the time of sentencing justified the unusual course of a fine only being imposed. It was submitted that in all the circumstances of this case, the only finding open to the learned Magistrate was that the respondent’s driving was contumacious, and as a consequence the only adequate sentence available to her was an immediate term of imprisonment.

7. Counsel for the respondent submitted that no error had been demonstrated in the learned Magistrate’s sentencing and as such there was no basis on which to interfere with the sentence.  It was contended that the Magistrate’s remarks showed that she had carefully considered the respondent’s antecedents and personal circumstances, as well as the factors of personal and general deterrence. It was argued that the sentence imposed was within the discretion of the Magistrate and was not manifestly inadequate.  Further, relying on the decision of Debelle J in Police v Hill[15] it was submitted that even if the Magistrate was unduly merciful, the Court should not allow the appeal and impose a term of imprisonment.

   [15] [2005] SASC 458, [31].

   Was the offence contumacious?

8. In the Full Court decision of Police v Cadd & Ors[16] Mullighan J stated:

   I use the word “contumacious” in the sense that it is understood in the law: see Whitam v Holloway (1995) 183 CLR 525 at 542-3. 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.

   [16] (1997) 69 SASR 150, 179.

9. This approach of Mullighan J was the common view of the majority of five judges in that case.[17]

   [17] See the addendum to the judgment of the Chief Justice at 171-2.

10. In Johns v Police[18] Lander J in discussing the meaning of ‘contumacious’ in the context of Police v Cadd,  said:[19]

    If the driving exhibits an attitude of defiance then that would usually amount to contumacy and may call for a sentence of imprisonment…To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance.

    [18] [1998] SASC 6729.

    [19] Ibid, [7].

11. Further, in Bates v Police,[20] Perry J was of the view that to satisfy the element of defiance required for a contumacious breach of section 95(5) of the Act:

    …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 other situation of duress.

    Counsel for the appellant submitted that it is unclear in the sentencing remarks whether the learned Magistrate addressed whether the offending was contumacious.  It was contended that it may be inferred from the sentencing remarks that a negative finding of contumacy was made, in particular where the Magistrate said:  ‘I am going to deal with you on the basis that your thought at the time there was a valid reason for driving under disqualification’.  In any event, the appellant submits that the ‘valid reason’ for driving does not equate to a finding that the driving was not contumacious in this case.  As a consequence it is submitted that the learned Magistrate erred if she made such a finding.

    [20] (1997) 70 SASR 66, 73.

12. Counsel for the respondent submitted that the respondent’s offending was not contumacious because he had a valid reason to drive.  The valid reason submitted by counsel and referred to by the learned Magistrate was that respondent attended at the hotel in circumstances loosely described as an ‘emergency’.  He was called by surprise in the middle of the night by a friend who had been involved in a disturbance at the local hotel.  It was submitted that the respondent in driving to help his friend in these circumstances was not contumacious conduct because it was not planned or premeditated and was not merely an act of convenience.

13. Counsel for the appellant submitted that the ordinary circumstances of attending a hotel to collect a friend involved in a disturbance, does not make out the circumstances of emergency which supports a finding that the driving was not contumacious.  I accept this submission.  If the respondent considered the situation to be an emergency he would have driven immediately from his house to the hotel after receiving the call for help, and not called and waited for the taxi to take him there.  Further, the driving took place after he had removed his friend from the disturbance, and it therefore could not be reasonably said to have taken place in a situation of emergency.  The facts do not indicate the respondent having a valid belief that there was an emergency, but instead support the conclusion that the respondent deliberately drove because it was more convenient than to use alternative means of transport.  The learned Magistrate erred in finding that such conduct was not contumacious.

    Relevance of antecedent history

1. Counsel for the respondent conceded that the respondent has a poor history for driving, but argued that this history was adequately considered and reflected in the sentence imposed.  Further, it was submitted that the respondent’s antecedent history does not impact upon the question as to whether or not the respondent’s offending was committed out of an attitude of contumacy. However, there is a long line of authority[21] which illustrates that antecedent criminal history is relevant to the question of contumacy.  For example in Veen (No2),[22] the majority of the High Court, comprising Mason CJ, Brennan and Toohey JJ stated that:

   The antecedent criminal history is relevant…to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.

   [21] See DPP v Ottewell [1970] AC 642; Veen (No 2) (1988) 164 CLR 465. Applied in Maxwell (1998) 102 A Crim R 374, 378-9.

   [22] (1988) 164 CLR 465.

2. Further, in Maxwell Bleby J said: [23]

   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.

   [23] Maxwell (1998) 102 A Crim R 374, 379.

3. The respondent’s prior record in this case indicates a continuing attitude of disobedience which enhances the gravity of this offence.  This is clearly relevant to the question of contumacy, as well as the severity of the penalty that should have been imposed. [24]

   [24] Ibid.

   Is the drink driving an aggravating feature?

4. Counsel for the appellant submitted that an aggravating feature of this offence was that the respondent drove with an excess blood alcohol reading. Counsel for the respondent argued that submission is incorrect in law and referred to the decision of Maxwell,[25] where Bleby J said at 378:

   [T]he offence is not a prohibition on driving under the influence, or driving dangerously, or driving in any other manner. It is an offence of driving at all.

   …

   The aggravating features [including driving under the influence] to which Mr Duffy has referred will normally constitute offences in themselves for which, if they occur, an offender will be separately punished.

   Here the offence is driving whilst disqualified.  All that is required is an act of driving. The circumstances of aggravation or otherwise will relate to the circumstances in which the defendant came to be driving, whether the act of driving was trifling or substantial, and the reasons and the purpose for which the defendant was driving. Above all, it will depend on whether the offence can be said to be contumacious…

   [25] Ibid, 378.

5. In light of these principles, I agree with the respondent’s submission that it would be inappropriate to have regard to the intoxication in determining whether or not the offending was contumacious, or whether or not the penalty for driving whilst disqualified should have been greater.  The respondent was convicted of drink driving and was punished separately.  He is not to be punished twice for the same conduct.

   Summary

6. In conclusion, I cannot accept that the respondent drove on this occasion with any genuine belief that he could lawfully drive a motor vehicle.  He had other possible means of conveyance, demonstrated by his calling a taxi, and I cannot infer from the circumstances disclosed, any suggestion of emergency in the relevant sense which might mitigate the respondent’s conduct.  Further, I find that the respondent’s driving in those circumstances was done because it was convenient to do so, and because it was inconvenient not to drive.  As the learned Magistrate noted, the respondent clearly knew that he was disqualified from driving, both as a consequence of the previous convictions for the same offence, as well as the various warnings given to him about driving whilst disqualified by various Magistrates over a long period of time.  Furthermore, the passage of his driving was not insubstantial in this case.  All the factors suggest that the respondent had an attitude of defiance, and was not merely ‘foolish or  unthinking.’[26]  In my view, this was contumacious offending in the sense in which the expression has been adopted in Cadd and subsequent cases.  The Magistrate clearly erred in finding otherwise.

   [26] White v Police (2000) 76 SASR 430.

   Driving whilst disqualified

7. Section 91(5) of the Motor Vehicles Act 1959 (SA) provides:

   A person must not drive a motor vehicle on a road while his or her licence or learner’s permit is suspended or while disqualified in this State or another State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner’s permit. Maximum penalty for a first offence – imprisonment for 6 months.

   For a subsequent offence – imprisonment for 2 years.

8. In Cadd,[27] Mullighan J made the following comments in relation to the appropriate penalty for the offence of driving whilst disqualified:

   I think there should be a standard fixed…given the seriousness of the offence and its apparent prevalence.

   That standard…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 sense

   [27] Police v Cadd & Ors (1997) 69 SASR 150, 178-9.

9. In Cadd, Doyle CJ stated that each member of the majority accepted that the punishment should be imprisonment, in an ordinary case of contumacious offending by a first offender, but that the circumstance of the offending or the offender or both may dictate some less severe form of punishment.[28]

   [28] Police v Cadd & Ors (1997) 69 SASR 150, 171.

10. Furthermore, as Perry J stated in Sheean v Police: [29]

    even in cases not involving contumacious offending, it may nonetheless be appropriate to impose a custodial term of imprisonment, although as Mullighan J pointed out in Cadd, “the starting point need not necessarily be imprisonment.”

    [29] [1999] SASC 187. Citing Police v Cadd & Ors (1997) 69 SASR 150, 179 per Mullighan J; and discussing Bates v Police (1997) 70 SASR 66.

11. In this case the respondent was a repeat offender, having received suspended terms of imprisonment for driving whilst disqualified on 21 October 2002 and on 17 November 1997.  He was therefore liable to be imprisoned for two years for this offence.  In relation to repeat offenders, Mullighan J stated in Cadd:[30]

    Different considerations must apply to the offender who is before the Court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.

    [30] Police v Cadd & Ors  (1997) 69 SASR 150, 178-9.

    Conclusion

12. Having regard to the case law and the circumstances of this case, I consider that the sentence of a $2000 fine imposed by the learned Magistrate was manifestly inadequate.  This is indeed a ‘rare and exceptional’[31] case where this Court needs to intervene for the reasons expressed in Osenkowski, particularly in light of the respondent’s offending history, and the special importance of personal and general deterrance for this offence.[32]  It is a matter of important public interest that the adequacy of sentencing standards be maintained for this offence. In my view, these standards would be severely eroded if the learned Magistrate’s sentence were allowed to stand.

    [31] Everett v The Queen (1994) 181 CLR 295 and Police v Cadd & Ors (1997) 69 SASR 150, 156-9.

    [32]  Eldridge v Bates (1989) 51 SASR 532.

13. Having concluded that the sentence imposed was manifestly inadequate, I turn now to consider what the appropriate penalty should be.

14. In addition to the special considerations attaching to prosecution appeals, this is an instance where the respondent has been told that he will not have to go to prison.  As King CJ stated in R v Hicks: [33]

    When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.

    [33] (1987) 45 SASR 270, 273. See also R v Hayes (1987) A Crim R 452, 469 per Kirby P.

15. As a consequence, any imposition of an immediate sentence of imprisonment in this case,  would require very strong arguments in favour of the  maintenance of justice or the protection of the public.[34]

    [34] R v Hicks (1987) 45 SASR 270, 273.

16. Further, in Dinsdale v The Queen[35] Kirby J noted that where a Crown appeal against sentence is justified:

    …it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellants “tinkering” with sentences.

    [35] (2000) 202 CLR 321, 340-1. See also R v Allpass (1993) 72 A Crim R 561, cited with approval in Sheean v Police [1999] SASC 187, [48].

17. There was in my view, nothing about the circumstances of the appellant or of the offence which justified the unusual course of a fine or a non-custodial sentence.  Even if the offending was not contumacious, as the learned Magistrate appears to have found, the imposition of a custodial sentence was entirely appropriate, and in my view should have been imposed.  The fact that the respondent was a repeat offender, having committed the offence on two prior occasions, indicates a continuing attitude of disobedience to the law which makes his offending all the more deserving of an immediate term of imprisonment.[36] 

    [36] Maxwell (1998) 102 A Crim R 374, 378-9 and Police v Trill [2003] SASC 199, [21].

18. The maximum penalty for this offence is two years imprisonment. I impose a sentence of one month’s imprisonment.

19. I must now consider whether there are “good reasons”[37] to suspend the sentence.  In Cadd, Doyle CJ stated:[38]

    …that the offence [of driving whilst disqualified] is of a type and tends to be committed in circumstances such that cases in which the circumstances of the offence support suspension will be unusual cases (eg, cases of genuine emergency; cases in which the driving is really trivial). However, the circumstances of the offender must also be considered and may nevertheless warrant the giving of a last chance by means of suspended sentence.

    [37] Criminal Law (Sentencing) Act 1988 s 38.

    [38] Police v Cadd  & Ors (1997) 69 SASR 150, 168.

20. Further, since this is respondent’s third offence I must have regard to following considerations expressed by Lander J in Cadd at 201:[39]

    For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing magistrate that good reason exists for suspending the sentence, increase. A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence. That is because a second offence would ordinarily exhibit contumacy on the part of the offender. So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. Again however, in my opinion, having regard to the fact that this type of offence is simply one which must be considered in relation to the circumstances of the offence and the circumstances of the offender it would be inappropriate to attempt to lay down any further guidelines than that.

    [39] Ibid, 201.

21. Counsel for the respondent submitted that an immediate term of imprisonment would jeopardise the respondent’s employment and the contact that he would have with his children during the school holidays.  I accept that these are relevant factors to be considered, however they should not be given a special status above other circumstances personal to the respondent, namely his appalling driving record and his failure to respond to final warnings evidenced by the imposition of two prior suspended sentences for the same offence. 

22. I take into account that the respondent has been told that he will not have to go to prison for this offending, and the potential consequences of transforming a non-custodial sentence into an immediate term of imprisonment on his state of mind, however, in all the circumstances, particularly in light of the respondent’s repeat offending and the importance of personal and general deterrance for this offence, I decline to suspend the sentence. 

    Orders

    1.      Appeal allowed

    2.The sentence of the $2,000 fine imposed by the learned Magistrate be set aside and the following sentence be imposed in lieu thereof:

    2.1    The respondent is to be imprisoned for one month.

    3.The respondent is to surrender himself to the Port Pirie Courthouse by 11am on Wednesday, 3 January 2007 to begin the sentence.

    4.The sentence is to commence from the date the respondent is taken into custody.

    5.     In all other respects, the orders of the learned Magistrate are confirmed.

23. I direct that a copy of these reasons be forwarded to the Registrar of Motor Vehicles for consideration of the exercise of his powers pursuant to s 82 of the Motor Vehicles Act.