Police v Carletti
[2020] SASC 118
•26 June 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v CARLETTI
[2020] SASC 118
Judgment of The Honourable Justice Peek
26 June 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED
Prosecution appeal against sentence.
On 30 June 2018, the respondent was arrested for drink driving and a police officer issued him with an “Instant loss of licence Notice”. On 6 July 2018, he was apprehended for driving while disqualified contrary to s 91 of the Motor Vehicle Act 1959. He pleaded guilty before a Magistrate to that charge and was sentenced.
After a successful prosecution appeal, he again pleaded guilty before a different Magistrate. Counsel submitted that the respondent had not realised that he had been disqualified from driving by the police officer; that he had expected to receive a summons and that a Court would make a determination. Further, when he later checked the SA Government e-licence app on each morning of 1, 2, 3 and 4 July, it indicated that his licence was not disqualified. This confirmed in his mind that he would not be disqualified before attending Court and he ceased checking his licence status. The disqualification was not uploaded until 2.24pm on 4 July and when he drove on 6 July he was unaware of that development.
The prosecutor did not accept those submissions as correct and submitted that the defendant was required to prove such matters of mitigation. The Magistrate indicated that he was bound to accept the submissions and fined the respondent $400 with no conviction recorded.
The prosecution again appealed.
Held per Peek J:
1. The Magistrate erred in accepting the submissions concerning mitigating factors without proof when they were clearly in dispute.
Filipou v The Queen (2015) 256 CLR 47; Law v Deed [1970] SASR 374; MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180; R v Kreutzer (2013) 118 SASR 211; R v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2013) 212 CLR 629; discussed.
2. There must be a re-sentencing which this Court will carry out rather than remit the matter for a third time.
3. After hearing the respondent’s evidence on oath including cross-examination by Crown counsel, the respondent’s evidence as to the mitigatory matters is accepted.
4. As to penalty, it is inappropriate to impose a fine other than the same fine of $400 having regard to the principles of double jeopardy confirmed in Police v Cadd.
Coombe v Douris (1987) 47 SASR 324; Law v Deed [1970] SASR 374; Police v Cadd & Ors (1997) 69 SASR 150; Police v Chilton (2014) 120 SASR 32; Police v Nissen (2014) 120 SASR 50; Police v Papadopoulos [2008] SASC 325; Police v Vannarath [2015] SASC 187; Workcover Corp v Musolino (2007) 100 SASR 147; discussed.
5. As to recording a conviction, the respondent is unlikely to commit the offence again. Having regard to his age, character, general antecedents and the circumstances of the offending (and particularly the fact that he honestly believed that he was not disqualified from driving) there is good reason for not recording a conviction.
Criminal Law (Sentencing Act) 1988 s 16; Sentencing Act 2017 s 24; Statutes Amendment and Repeal (Sentencing) Act 1988; referred.
Police v Kostoff [2014] SASC 130; Schmidt v Police [2005] SASC 482; discussed.
6. Since the disposition is the same as that of the Magistrate, there is no point in setting aside the orders and then making new orders in the same terms. Accordingly, the appropriate order is that the appeal is dismissed.
POLICE v CARLETTI
[2020] SASC 118Magistrates Appeal
PEEK J. After a successful prosecution appeal against a sentencing disposition of a charge of driving whilst disqualified, the respondent was re-sentenced by another Magistrate. The prosecution now appeals against that second disposition.
The background facts
On 30 June 2018, Mr Carletti (the defendant) was arrested for drink driving (the drink driving proceedings)[1] and at that time a police officer issued an “Instant loss of licence Notice” pursuant to s 47IAA of the Road Traffic Act 1961 (RT Act). Six days later, on 6 July 2018, the defendant was stopped for a mobile driver test and licence check which revealed that his licence was suspended. The defendant stated to the officer that he was unaware of that and was under the impression that he would receive a summons to attend Court in relation to the drink driving charge. He agreed that he had received paperwork from the police on 30 June 2018 and stated that he had not read it and was about to see a solicitor about the matter.
[1] As a matter of completeness, the drink driving proceedings were contested by the respondent. Magistrate Broderick heard the trial on 21 February 2019 and reserved judgment; he delivered judgment on 3 October 2019 and found the respondent guilty of the charge. The respondent appealed against that finding. David J heard that appeal on 15 January 2020[1] (at the same time as hearing the appellant’s appeal against the first sentencing disposition of the drive disqualified charge). His Honour reserved judgment and delivered judgment on 4 March 2020 dismissing the appeal.
The defendant was charged on Information with driving on 6 July 2018 while he was disqualified from holding or obtaining a licence contrary to s 91 of the Motor Vehicles Act, 1959 (the subject driving and the subject proceedings). In overview, the defendant’s reasons for driving on 6 July 2018 (asserted in sworn evidence) are as follows.
-At the time of the subject driving, he did not understand that he was already disqualified from driving and instead believed that he would be receiving a summons to attend Court on the drink driving charge and that, if he were to be disqualified from driving, the Court would fix the commencement date and duration of that disqualification.
-This was the procedure that had been followed when he had been previously charged with driving with the prescribed concentration of alcohol (PCA) in 1997.
-As at 6 July 2018, he had not read the paperwork he had received from the police on 30 June 2018 and he later gave all that he had to his solicitor.
-Each morning on 1, 2, 3 and 4 July 2018 he had checked his e-licence “App” (which had been heavily promoted by the SA Government as constituting a live and up to the minute record of actual driving licence status) and it had indicated that he was not currently disqualified from driving (“computer says no”). After that period, he was convinced that he would not be disqualified until going to Court and he ceased checking the App.
-The “instant loss of licence” was finally uploaded to the Registrar of Motor Vehicles database at 2:46 pm on 4 July and the defendant was unaware of this at the time of the subject driving on 6 July 2018.
The first sentencing disposition of the subject proceedings
On 19 November 2019 the defendant, represented by his solicitor Ms Stanley, appeared before Magistrate Broderick and pleaded guilty to the charge of driving while disqualified. Ms Stanley made submissions in mitigation without calling the defendant to give evidence; it does not appear that this course was opposed by the prosecution at that time. The prosecutor, Mr Battersby, swore an affidavit on 4 December 2019, deposing to the course of the proceedings that day as follows:[2]
[2] This affidavit was sworn and received in the first prosecution appeal referred to below.
5.On 19 November 2019 I appeared before Magistrate Broderick in the Elizabeth Magistrates Court in relation to MCPAR-18-10027. The respondent appeared, represented by Ms Karen Stanley. He pleaded guilty to the charge of driving while disqualified.
6.I informed the court about the facts of the offending by reading from apprehension report 19/E21008 (a true copy of which is exhibited as “AWB-1”).
7.I read out relevant aspects of the respondent’s prior criminal history from his offender history report contained within the police brief (a true copy of which is exhibited as “AWB-2”). I recall advising that the respondent had committed a prior driving offence in 1997 for driving with a prescribed concentration of alcohol.
8.I made submissions to the effect that:
8.1 The appropriate penalty for this offending was imprisonment (and referred to Police v Chilton [2014] SASCFC 76 and Police v Nissen [2014] SASCFC 77);
8.2 Those cases supported an immediate sentence of imprisonment for the type of offending despite it being a first offence committed and despite a lack of contumacy; and
8.3 An Instant Loss of Licence did not have the same tenor as a Court-ordered licence disqualification; therefore it might be possible for the respondent to establish that good reason existed to suspend any term of imprisonment.
9.I recall Ms Stanley made submissions to the effect that the Court should not record a conviction on the basis that:
9.1 The respondent had an honest, but unreasonable, belief that his licence was still intact because his “e-licence” was not updated until the day of the offence; and
9.2 The respondent’s business would suffer if a conviction was recorded as he needed to travel to Canada. I recall Ms Stanley tendering a printout from a Canadian website about eligibility to travel to Canada (a copy of that printout is exhibited as “AWB-3”).
10.In response to Ms Stanley’s submissions against the recording of a conviction, I made submissions to that effect that:
10.1 The respondent did not possess an honest or reasonable belief in the status of his licence. I read out parts of the transcript of his 30 June 2018 interview after his breath analysis reading. That transcript (at pages 8–9) revealed that the respondent was told – twice – that his licence was suspended and that it would be an offence to drive (a copy of that transcript is exhibited as
“AWB-4”).
10.2 According to the apprehension report, the respondent was aware of the Instant Loss of Licence documents provided to him after the drink driving offending on 30 June 2019, but had not taken it upon himself to read the documents.
10.3 In relation to the printouts Ms Stanley had tendered I noted that the listed offences which might affect his ability to travel to Canada included drink driving offences but did not include the offence of driving while disqualified. I pointed out that thus the respondent might run into difficulties in any event due to a previous drink driving offence he had committed in 1997.
11.I recall the Magistrate making remarks during sentencing to the effect that:
11.1 A term of imprisonment was warranted in the circumstances, but that there was good reason to suspend that sentence; and
11.2 A conviction should not to be recorded due to the “extra-curial punishment” of a recorded conviction and the effect it would have upon the respondent’s business.
11.3 This decision to proceed without recording a conviction in these circumstances was “unusual”.
12.I know the facts deposed to herein of my own knowledge.
At that hearing, Magistrate Broderick sentenced the defendant to imprisonment for a period of fourteen days, suspended upon him entering into a good behaviour bond for twelve months and ordered that no conviction be recorded. His Honour made the following remarks in sentencing (in full):
Robert Carletti has been charged with driving whilst suspended on 6 July 2018. He has pleaded guilty. He was suspended following his apprehension by Police at Golden Grove on 30 June and charged with driving with more than the prescribed volume of alcohol in his blood contrary to Section 47B of the Road Traffic Act. For the offending on 6 July he seeks no conviction.
Sergeant Battersby, for prosecution, confirmed the offence was less than a week after a suspension notice had been issued to Mr Carletti. He pointed to the earlier evidence relating to the offence (30 June 2017) which was the subject of a trial. The arresting officers spoke to the defendant twice that evening in relation to the drink driving and suspension. I conducted the trial and recall the video evidence of the interview when the breath analysis test was undertaken. I recall Mr Carletti was intoxicated and was sarcastic and belligerent, but that is not an issue that goes to his guilt or otherwise. The submission has been made by Ms Stanley, the defendant’s counsel, that Mr Carletti in the days following made inquiries through the Registrar of Motor Vehicles office as to the status of his suspension, despite the clear instruction from the arresting officer on the night of the drink driving charge that his driver’s licence was suspended. Mr Carletti was the subject of a drink driving charge, some twenty years ago. Immediate suspension of a licence was, from my recall of the history of the legislation, not available then to police. I also note, apart from that matter, Mr Carletti has an otherwise good record. What has been further brought to my attention is that Mr Carletti has been or is in the habit of conducting business overseas, in particular to the North Americas. A distribution agreement relating to his business activities was produced by Ms Stanley with regards to his business arrangements in Canada. She also produced a standard notice from the Canadian Federal Government advising that parties carrying convictions for an offence, will have difficulty with entry into Canada. Mr Carletti is in the habit of travelling from time to time to that country for business. In those circumstances, given the impact of the conviction, which go beyond what may well be for many people in the community of no consequence with regards to overseas travel, that is a severe punishment with consequences possibly beyond the intention of the public policy for such offending. The offence itself contemplates a period of imprisonment as the penalty, even at the lowest end of being contumacious. There is an argument as to whether this is clearly contumacious in that Ms Stanley submitted that the interrogation of the Registrar’s website showed Mr Carletti’s licence was not suspended.
Sergeant Battersby argued that it clearly was, given that a week earlier Carletti had been warned. However, I think there is some latitude which may be given to the defendant in that he was intoxicated and whether the full impact of what he was advised by the police properly was digested by him is perhaps open.
Given the apparent consequence that the defendant is potentially precluded from travel. I note he has not been warned by the court. If the summary trial which he has now taken on appeal for the breach of Section 47B, is unsuccessful then Mr Carletti will have to address the issue of a conviction at a future date. In all the circumstances, I grant the application not to record a conviction with respect to the driving whilst suspended. However, imprisonment is considered by the Supreme Court to be the appropriate penalty. I consider this offending at the lower end of contumacious although I accept the prosecution’s submission regarding the clarity of the suspension direction on 30 June. Whether the full impact of that advice was appreciated may be open, but is consistent with the submission that he believed his suspension had not been operative.
It is finely balanced whether he was cavalier or not, or reckless. In the circumstances, there will be no conviction recorded. I impose a period of imprisonment for fourteen days which takes into account of the statutory discount on his plea. I suspended that sentence upon him entering into a good behaviour bond for twelve months.
The impounding fee is granted.
Prosecution is not seeking an appearance fee. The Court fees are waived. The victim of crime levy applies. [Emphasis added]
Two observations may be made. The first is that these were ex tempore reasons and should not be too closely parsed and analysed having regard to the need to deal expeditiously with a heavy list. They do not purport to be a complete recitation of all that was said by Ms Stanley but his Honour did specifically refer to the defendant checking his “App” and he also made a glancing reference (“Immediate suspension of a licence was, from my recall of the history of the legislation, not available then to police”) to the longer submission made by Ms Stanley that the defendant had thought that a Court would be dealing with the present matter in the same way as it had in 1997 when he had been charged with driving with the PCA.
The second observation is that difficulties will often arise in cases (such as the present) where the onus is actually on a defendant to establish a positive extenuating matter, and yet the defendant fails to give evidence concerning the matter. In that situation, if the prosecutor insists that the strict legal position should be adopted, the Magistrate should not accept that the matter of extenuation is made out only on the basis of submissions.[3] However, as noted above, the prosecutor did not then squarely take that position[4] and accordingly the Magistrate was left to grapple with the material before him in the absence of any evidence from the defendant as to exactly what had been his thought process. This made it difficult for the Magistrate to formulate a clear factual basis for the plea and understandably led to the somewhat stilted comments:
… there is some latitude which may be given to the defendant in that he was intoxicated and whether the full impact of what he was advised by the police properly was digested by him is perhaps open. … although I accept the prosecution’s submission regarding the clarity of the suspension direction on 30 June. Whether the full impact of that advice was appreciated may be open, but is consistent with the submission that he believed his suspension had not been operative.
[3] This matter is discussed in the context of the present appeal below at [16]-[20].
[4] I hasten to stress that I now speak only of these earlier proceedings before Magistrate Broderick. When Mr Battersby later appeared in the subject proceedings before Magistrate Gumpl, there is no doubt that he took the point immediately and correctly.
It was in these circumstances that the Magistrate decided as he did.
The first prosecution appeal (against the disposition by Magistrate Broderick)
On 3 December 2019, the prosecution appealed against this disposition on the narrow basis that, as a matter of law, there is no power to abstain from recording a conviction when a suspended sentence of imprisonment is being imposed pursuant to s 96 of the Sentencing Act 2017.[5] There was no complaint that the sentence was “manifestly inadequate” and no appeal filed by the defendant claiming that the sentence was “manifestly excessive” or otherwise attended by error. The orders complained of, the orders sought and the grounds of appeal were as follows:
[5] See Police v Dolphin [2012] SASC 3.
1. Orders complained of
The imposition of a suspended sentence of imprisonment without recording a conviction.
2. Orders sought
1. That the appeal be allowed;
2. That the order to not record a conviction be set aside;
3. That a conviction be recorded; and
4. Any other order that this Honourable Court deems fit.
3. Grounds of appeal
Having imposed a sentence of imprisonment (suspended pursuant to s96 of the Sentencing Act 2017), the sentencing court erred by purporting to impose that penalty without recording a conviction.
On 15 January 2020, this appeal came on for hearing before David AJ.[6] Counsel for the defendant conceded, rightly, that the Magistrate had erred in law in that there is no power to impose a suspended sentence without recording a conviction and accordingly the sentence could not stand.[7] Since the prosecution appeal was limited to that matter of law and there was no defence appeal, it is strongly arguable that the Judge could have disposed of the matter by simply recording a conviction (thus leaving the original suspended sentence disposition intact). However, counsel for the defendant submitted that the whole of the sentence should be revisited and the prosecutor did not actively oppose that course. The Judge remitted the case to the Magistrates Court for a re-sentencing de novo.
[6] As noted above, David J heard this appeal at the same time as hearing the respondent’s appeal against the guilty finding following the drink driving trial.
[7] Police v Dolphin [2012] SASC 3.
The second sentencing disposition of the subject proceedings
On 20 February 2020, the defendant again pleaded guilty to the present charge of driving whilst disqualified, this time before Magistrate Gumpl. Mr Battersby again prosecuted. Ms Stanley appeared on the defendant’s behalf and again made submissions in mitigation without calling him to give evidence. The ex tempore sentencing remarks provided are (in full) as follows:
Based on the material which has been tendered, particularly the defendant’s requirement to travel internationally for his work and the possible consequences of a conviction and his understanding of the status of his licence through the digital information on the ‘My SA.gov’ website, together with Exhibit D1, and Ms Stanley’s submission, I am satisfied that extenuating circumstances do in fact exist.
The defendant’s driving does not amount to contumacious behaviour and pursuant to Section 24, without conviction, the defendant is fined $400. Court fees are waived.
The present (second) prosecution appeal
The orders complained of, the orders presently sought and the grounds of appeal in the present (second) prosecution appeal are as follows:
1. Orders complained of
The entirety of the sentence imposed which comprised of a fine of $400 without the recording of a conviction.
2. Orders sought
1. That the appeal be allowed;
2. That the sentence be set aside;
3. That the respondent be resentenced according to law;
4. Any other order that this Honourable Court deems fit.
3. Grounds of appeal
1. The sentence was manifestly inadequate.
2. The sentencing court erred in finding good reason not to record a conviction.
3. The sentencing process miscarried because the sentencing court misunderstood the onus upon the respondent to satisfy the sentencing court of the facts necessary for the exercise of a discretion in the respondent’s favour.
It is to be observed that the Grounds of appeal are considerably broader than those in the first appeal and there is now a complaint by the prosecution that the sentence was “manifestly inadequate”. Again, there is no defence appeal.
Essentially, the appellant seeks a further re-sentencing de novo. He complains of two outcome errors (Grounds 1 and 2) with the same process error causing or contributing to each of those outcome errors (Ground 3).
The course of the hearing of the appeal
Counsel for the appellant tendered an affidavit sworn by Mr Battersby on 28 April 2020 in which he exhibited a transcript of the audio recording of the hearing before Magistrate Gumpl. The defendant did not object and conceded that the transcript was accurate;[8] the affidavit and exhibits were received as exhibit P1.
[8] Two corrections are made in the affidavit of Ms Stanley but they are not presently material.
Counsel for the appellant correctly submitted that that transcript makes quite clear that Mr Battersby did vigorously oppose Magistrate Gumpl’s course of making findings in favour of the defendant without him giving evidence and being cross-examined. The critical portion of the transcript is as follows (commencing with Magistrate Gumpl addressing Mr Battersby):
HIS HONOUR: If I accept the thrust of what is being put to me by Ms Stanley, why would I imprison this person when he genuinely believed, even if it was unreasonable, by checking his e-licence and thought he was okay. And that’s what he told police.
APP BATTERSBY: Because prosecution say that his belief isn’t honest because he was told on the night by police, he was given the paperwork but he chose to ignore it. He stuck his head in the sand. It is complex, I accept that …
HIS HONOUR: So here’s the thing, I’m obliged to accept what Ms Stanley has put to me on behalf of her client unless and until I hear evidence to the contrary. Now if you wish to call evidence and or do whatever it is you wish, you can. But as things stand at the moment, I’m prepared to accept the submissions as they are put to me.
APP BATTERSBY: Well Your Honour, if I can say this, it’s not a question of if prosecution have to rebut the defence’s submissions, if it’s not accepted then my friend has to prove it on the balance. There’s a High Court decision, two High Court decisions, I haven’t got them to hand which say that if prosecution don’t accept defence’s submissions that we have to prove it beyond reasonable doubt. I can find them and get them to Your Honour but effectively it’s not a question of the court has to find in the defendant’s favour.
HIS HONOUR: Alright, whatever, I’m finding that this is not contumacious. I’ve already read some of the authorities and in my view given the fact that he was highly intoxicated at the time, didn’t read the form properly, he was uncertain based on app, he checked the e-licence which yes, we agree he should have been more reasonable. And in the normal circumstance, anyone listening to this story might, at first blush say, the defendant couldn’t possibly not know that he was disqualified and yet I’m left with this explanation that to me rings true so I’m not going to find it’s contumacious. And in those circumstances, I shall proceed to convict this person and fine him $400. …[9] [Emphasis added]
[9] Attention then shifts to the matter of recording of a conviction which is taken up below.
It is clear that the prosecutor was here adamantly disputing assertions by defence counsel that the defendant honestly held any such belief and required him to give evidence so that he could be cross-examined concerning the nature and extent of any belief that he did hold. One of the decisions of the two High Court decisions to which the prosecutor referred was no doubt R v Olbrich.[10] The plurality there stated:[11]
25. Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
26. In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a fifty-eight year old first offender who pleaded guilty to importing more than 1.1 kg of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation “principal” could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was “a courier”. The respondent bore the burden of proving this fact. The judge was not persuaded of it. [Citations omitted]
[10] (1999) 199 CLR 270. The other might be one of a number of possibilities including Weininger v The Queen (2003) 212 CLR 629 and Filippou v The Queen (2015) 256 CLR 47.
[11] (1999) 199 CLR 270, 281.
The matter has also been the subject of extensive analysis in this Court. In MJDH v Director of Public Prosecutions (SA), Kourakis CJ said:[12]
17. A defendant’s onus to prove a mitigating circumstance deprives the often heard prosecution submission, that the defendant’s account cannot be disputed, of any meaningful utility. The question is not whether the prosecution has positive evidence to contradict that mitigating circumstances. As this case shows, and Bray CJ observed in Law v Deed, the prosecution will seldom have any such evidence. The question is whether the prosecution accepts the defendant’s account or instead requires the defendant to prove a matter in mitigation on the balance of probabilities.
18. The dictates of procedural fairness play an important part in this aspect of sentencing procedure. A sentencing court should not, in the face of a challenge by the prosecution, or on its own initiative, reject a defendant’s explanation without according the defendant an opportunity to give evidence on oath in support of it. As Bray CJ explained in Law v Deed:[13]
Some stories which might appear incredible when related in oratio oblique by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.
[12] (2013) 116 SASR 180, 185.
[13] Law v Deed [1970] SASR 374 at 378.
In R v Kreutzer, Kourakis CJ further discussed the matter and formulated the following propositions for sentencing purposes:[14]
(1)Circumstances which operate adversely to a defendant on the one hand, or favourably on the other, should first be identified (always bearing in mind that not all relevant circumstances can be so categorised). Even though there exists authoritative guidance about many commonly recurring circumstances, the categories are not closed.
(2)In the absence of agreement and acceptance by the court, the prosecution must formally prove circumstances of aggravation beyond reasonable doubt and the defendant must formally prove matters in mitigation on the balance of probabilities.
(3)If a circumstance of aggravation or mitigation is not proved by the party who carries the onus to do so, the converse is not thereby proved and the court must proceed to sentence not knowing whether the circumstance, or the converse, is true.
(4)A sentencing court may inform itself of matters which are neither circumstances of aggravation nor mitigation as it sees fit in accordance with historical sentencing practice and any applicable statutory discretions such as s 6 of the Sentencing Act.
[14] (2013) 118 SASR 211, 222-223 [32] (paraphrased).
I therefore find that the Magistrate erred in stating: “I’m obliged to accept what Ms Stanley has put to me on behalf of her client unless and until I hear evidence to the contrary. …”. This case clearly involved a defendant asserting the existence of a mitigating feature which was disputed by the prosecution and as to which the onus of proof (on the balance of probabilities) was upon the defendant.
Accordingly, Ground 3 of appeal is made out. The effect of this finding is that there must be a re-sentencing on both penalty and the question of recording a conviction. Since that is also the order sought by the appellant with respect to Grounds 1 and 2, the subject matter of those grounds will be subsumed within the re-sentencing process.
Re-sentencing the defendant
During the course of the hearing, I indicated to counsel that my view was that a re-sentencing was necessary for the above reasons and asked for counsels’ views as to whether I should carry out that process or remit the matter for a third time. Both were of the view that I should proceed with the matter and I will do so.
The sworn evidence of the defendant
Ms Abbey, counsel for the defendant on the appeal, called the defendant to give evidence in chief and he was later cross-examined by Mr O’Flaherty. I will summarise the evidence by reference to the chronological events referred to.
The defendant told me that he is now 60 years old and has been driving ever since he got his licence at age 17. He said that he had a previous conviction for driving with the PCA relating to an occasion on Christmas Eve 1997 when he had visited a number of clients seriatim and had been invited to have Christmas drinks with several, the drinks accumulating without him quite realising. He was pulled over by police and found to be over the limit. He then gave the following evidence in chief about that 1997 matter:
Q. Were you given paperwork by police at the police station.
A. Once again, presumably, but I remember taking a blood test kit, with paperwork.
Q. Did you later attend at court about that, drink driving.
A. Yes.
Q. You were convicted.
A. Yes.
Q. At which point was your licence disqualified from.
A.I was asked how much time do you need to get things sorted out and I think it took a week or so later and the date was set.
…
Q. The magistrate said that you would have a period of licence disqualification, correct.
A. Yes.
Q. Then you were given a date from which that would commence.
A. Correct.
The defendant told me that the present (his second) drink driving offence occurred almost twenty years later, on the night of 30 June 2018, after he had had a very long telephone conference of about three hours with a business client in London. After that, not wanting to cook so late, he went out in his car to buy some food. Unfortunately, he had consumed a substantial amount of alcohol during the telephone conference, and after being pulled over by police his ultimate breath test reading was .171 grams of alcohol in 210 millilitres of breath.
As to the document ‘Notice of licence disqualification or suspension’, he gave the following evidence in chief:
Q.Looking at the document produced to you, it says at the top, ‘Notice of licence disqualification or suspension’.
A. Yes, correct.
Q. Can you see quite faintly, your name written in handwriting at the top.
A. Barely, I haven’t got my glasses.
Q. Does that form or one like it, look familiar to you.
A. I presume it should be.
Q.I want to come to the night when you were pulled over in June 2018; you were given a piece of paperwork at the police station.
A. Several, yes.
Q. Do you recall how many.
A.There was a printout from the machine and paperwork associated with the blood test kit and maybe more paperwork, presumably this form as well, yes.
Q.Are you saying that you accept that this was given to you or you remember that this was given to you.
A. I’m accepting that it was given to me.
Q.Perhaps I don’t need to go on but for completeness, did you ever read a form like this.
A. No I didn’t read it.
Q.To be clear, on the night that you were given this, I’ll call it a bundle of paperwork, did you ever read a form like this on that night.
A.No, at the station I mean, I need glasses to read it for starters and then, no, not on that night.
Q. Did you ever read one since.
A. Not to my recollection.
As to his understanding of his driving licence status on leaving the police station and over the subsequent days, he gave the following evidence in chief:
Q. Were you breath tested.
A. Yes.
Q. And what reading did that give.
A. I don’t remember exactly.
Q. Do you remember very much from that occasion.
A. It’s almost two years, bits and pieces, but not a great deal.
Q. Do you recall the simple fact that you had a conversation with police.
A. Definitely.
Q. Do you recall the topic of that conversation.
A.I was there for quite some time, but obviously, yes it was about that I was over the limit and that I would be disqualified.
Q. Did you get taken to the police station.
A. Yes, that’s where that all occurred, yes.
Q. At some point you left the police station.
A.Yes, then I had to walk home because they took my car, so I knew I wasn’t driving that night.
Q.And when you left the police station what did you understand about whether you could drive can or not.
A. Okay. I knew that I would receive a sentence of sorts.
Q. Is that for the drink driving.
A. Correct.
Q. Right.
A.And the last thing I remember having a conversation with them was about if I wished to just accept their reading or did I want to go and have a blood test. And so I said, well okay yes, because obviously a blood test could give a different reading. A different reading would then, could possibly, change the outcome of the penalty that I was going to be facing.
Q. So that was what was in your mind.
A.Well, not initially, but then, you know, in the subsequent days and I’m thinking, well my licence doesn’t tell me I’m suspended yet, so obviously even though I didn’t take up the option of going to have a blood test because it was too late in the evening and I really didn’t want to go and wait at the hospital for three hours and whether it would still be valid or not. Anyway, I opted - I had no transport - not to do it. So therefore I assumed that then whatever their reading was was going to be the reading that was going to be used and any penalty would have been judged on that. But the fact that I’d been given the option to supply an alternate reading, that the outcome could be different, I assumed - wrongly, as I now know - that that wasn’t the case to be.
Q.So as you left the police station that night what did you think about your licence. Had anything happened to your licence, to your belief at that point.
A.To be honest, as I left the station I have no recollection. But the ensuing days is when I thought about it because -
Q. You mentioned a moment ago over the subsequent days you checked e-licence.
A. Certainly.
Q. Now, first of all, what did you understand was e- licence.
A.Okay, my belief - and because I was probably one of the first people to take up an e-licence as I had my wallet stolen, the quickest way was to - you know, to get a new cope [sic] was to take on the e-licence, right. The government website told me straightaway that it is a live and current legal document, right. The app, you shake it, it’ll come up and it communicates, and it tells you the current time of day and the status of your licence, right. I’d also had [sic] a conversation on the ABC Radio when a government representative was touting the use of the e-licence, right, because I’d found, having been using it for a few months already, that as much as they said that it should be accepted as such, right, it was not recognised by car rental firms and banks as valid ID, right, so -
Q.I’ll just interrupt you there, we’ll just break it down a little. You said the government website tells you. Did you actually look at the government website about the e-licence.
A. Correct, from the day that I took it on board.
Q. From the day that you took on the e-licence app.
A. And after this event occurred, I checked again and it was the same.
…
A. Correct and that it gives a live status of your licence.
Q. So you [sic] belief was it was a live reflection of your current driving status.
A. Correct.
Q.You said in subsequent days, so days subsequent to 30 June 2018, you checked ... licence.
A. Pretty much every morning until one day I didn’t.
Q. Why did you check it each morning.
A. Just for reassurance.
Q.Did you have an understanding that there was a risk that your licence might be disqualified.
A.I think at this stage, I’d convinced myself that my thinking was correct and that I was going to receive a summons and be dealt with in court.
Q. On the basis of what had you convinced yourself, what convinced you of that.
A. Because my licence told me it was active and valid.
…
Q.Just to be quite clear, you said you checked it each morning on subsequent mornings, that is the e-licence.
A. Correct.
Q. What did you see the first morning.
A. That my licence was still active.
Q. The next time you checked.
A. My licence was still active.
Q. For how many days did you check the e-licence.
A. From memory right up, it must have been, I think the 5th.[15]
[15] The disqualification was uploaded at 2.26 pm on 4 July 2018 and the last morning on which the App would have reported that the licence was still valid would have been the morning of 4 July 2018. However, I do not consider this answer to be anything other than a mistake and I find that the last morning on which he checked the App was 4 July 2018.
Q. Why did you stop checking it.
A.When I leave to go to work in the morning, I leave at a particular time every morning because I pick up my son, who catches a bus and I pick him up and we go to work together. Some days I’m in a bit of a rush, sometimes I skip breakfast, I skip taking my medication, I just rush out the door and this day I just probably rushed out the door.
Q.When you got in your car to drive, on that occasion, so on 6 July 2018, what did you believe about whether you were allowed to drive.
A. I just believed that my licence was still current as had been for the past week.
…
Q.Just one topic. You mentioned that with the licence app you shook it, you shook your phone. Can you explain what you meant about that please.
A.Okay, because it’s supposed to be a live document as opposed to an image to prove that it is actually up-to- date when you shake it you’re [sic] photo then switches to show the current time and date.
Q.What did that mean to you, the information that came up when you shook it, what did that mean to you.
A.It means that my phone communicated with the database that holds the licensing information and returned that fact that it was still active and not suspended.
Q. And when you say it shows a time and date -
A. Correct.
Q.- compared to when you shake the phone what is the time and date. Is it the point at which you shake the phone.
A.At the point when you - when you shake the phone, and I can show you this if you like, it refreshes the screen, replaces your photograph - so if I shook it now, it would come up with today’s date and this current time of day.
I will now reproduce some passages from the cross-examination.
Q.At least for purposes of what I’m going to ask you in questioning now is going to assume that this is a transcript of that interview that you had with police on 30 June 2018 and that RC, Carletti, is you, and that Slater, DS, is the police officer. Okay.
A. Yep.
Q.Looking at p.8 of the document, line 23 you’ll see the notation ‘DS: All right, so you’re going to be reported for that offence, I’m going to issue you with a notice of instant disqualification, all right. So the consequence to this if you get caught driving whilst you’re disqualified you can be basically be reported or arrested. All right, do you understand that? RC: Of course I do.’ Does that assist your memory of this conversation, do you recall that being said.
A.Well I’m just assuming that’s what I said because it’s in front of me, yes but - do I have -
Q. You don’t have any cause to doubt that, do you.
A.I don’t have clear - no I don’t doubt it, but I don’t have clear recall of the conversation.
Q.Then over the page, on p.9 line 36, ‘DS: all right so I need to tell you as a result of this allegation your drivers licence is suspended or you are disqualified from holding or obtaining a drivers license for the relevant period as defined in section 47AA of the Act, being a period of up to 12 months. Okay, it’s an offence punishable by imprisonment to drive a motor vehicle where your licence is suspended or you are disqualified. RC: so I can go and apply for one point back and get it back or - DS: You can appeal the instant loss of licence which - I think that hasn’t been transcribed - explain on how you can do that if you wish to do so. All right, so you just need to just sign on here just to acknowledge receipt of this form’. Again, did you recall - maybe not necessarily those words - but do you recall the nature of that discussion occurring on that night.
A.Yeah, and I also notice that I didn’t actually get an answer to my question. Meaning - I obviously walked away with insufficient information on what I’d asked. Because obviously I’d clearly, right, did not understand - my reading from that - of what was being told to me.
Q.So you agree that it was explained to you in these words, that your drivers licence is suspended for the relevant period, being a period of up to 12 months. Do you agree that that was explained to you on that occasion.
A. Even reading it now -
HIS HONOUR: Well look, Mr O’Flaherty, I just wonder whether the word ‘explain’ is really the word you should be using, ‘state’ or -
MR O’FLAHERTY: Sorry, perhaps if recorded as stating.
HIS HONOUR: Yes, I think so. So if you can just put your question again.
XXN
Q.If I could put that to you. Do you agree it was stated to you by the police officer that your licence is suspended, or your [sic] disqualified from holding or obtaining a drivers licence for the relevant period, being a period of up to 12 months.
A.Reading as I read it here and my subsequent question I would suggest that it wasn’t clear to me at the time.
Q. Well, your question there is ‘Can I go and apply for one point back’.
A. Correct.
Q. So is that your understanding -
A. At some time in -
Q.- that you had - was that consistent with your understanding that the result of this is that you had too many demerit points and you needed to claw back the demerit points back at some later date, was that your understanding then.
A.I was asking, yes, because I - you know, if you lose - obviously, I have since found out a lot more, right, but if you lose all your points and you can show that you need your licence back for work or whatever, you can get one point back, right?
Q.The key word there is, of course, ‘back’, isn’t it. That you were under the impression you needed to get your licence back, isn’t that right.
A. At some point in time.
Q.Yes, so the result of this was, as the police officer then stated in answer to your question, the result of this was an instant loss of licence. You agree that was stated to you, don’t you.
A. In what line was that?
Q. That’s on line 45, immediately after your - in response to your question.
A.It says here ‘You can appeal the instant loss of licence which explain on how you do that if you wish to do so, all right, so you need to just sign on here, just to acknowledge receipt of this form’.
Q.Yes, so you have asked ‘Could I get my licence back’ and the officer has said to you ‘You can appeal your instant loss of licence’.
HIS HONOUR: Well, Mr O’Flaherty, once again, the words that are recorded here are ‘So I can go and apply for one point back and get it back?’ Now, whether ‘it’ refers to the point or ‘it’ refers to a licence are two different things.
MR O’FLAHERTY: Well, okay, sorry, perhaps -
HIS HONOUR: It’s best just to use the words that are there rather than your interpretation of them.
MR O’FLAHERTY: Certainly, your Honour.
XXN
Q. So you said ‘So I can go and apply for one point back and get it back’.
A. The point, yes.
Q. And then it’s stated ‘You can appeal the instant loss of licence’.
A. On top of asking for one point back.
Q. So you’re trying to say you didn’t understand what ‘instant loss of licence’ meant.
A. ‘Instant’ is a - you know -
Q. You don’t know what ‘instant loss of licence’ means.
A.It can mean now or when somebody else says it starts now. It starts from the point of -
Q.You were given a form - I think you will agree, you gave evidence before that you were given a form and some other documents during this interview or at least as a result of this interview.
A. Yes, correct.
Q. I think you have been shown one of those documents which is Exhibit P2.
MR O’FLAHERTY: Could the witness be shown - is it P2 - again?
HIS HONOUR: Yes, certainly. …
XXN
Q.So I think you stated in evidence that you didn’t read this document at the time, is that fair.
A.When it was supplied to me, right, I did not have any glasses with me, and even now, I can’t - I can barely read it. On the night, I certainly couldn’t read it.
Q.No, and to be fair to you, the document I put before you, I think, contains a discussion where you say you didn’t have your glasses with you so you couldn’t read it, so that would be consistent, I think. So you got this document along with other documents. What did you do with it when you got home.
A. Well, I put it down in the kitchen and went to bed.
Q.Okay, and the days following that, what did you do with this document, with your copy.
A. I don’t recall.
Q. Do you remember thinking you needed to talk to a lawyer about it.
A. I certainly did, and I gave all my paperwork to my lawyer.
Q.Okay, so you did do something with it; you gave it to your lawyer, is that what you’re saying.
A. I gave all my paperwork.
Q. At any point, did you read it.
A. No.
Q. Why not.
A.Well, like I said, I don’t recall reading it. I don’t even recall whether I actually walked out of the police station with this particular document.
Q. But you agree that you walked out of the police station with documents.
A. Correct.
[Emphasis added]
Later, Mr O’Flaherty cross-examined the defendant about his “e-licence”:
Q. Now, you have given some evidence about the e-licence app on your phone.
A. Yes.
Q.And how you, when you check it, when you open it up and when you shake it, it essentially refreshes the app, does it, to reflect what your licence is at the point that you shake the phone, is that right.
A. Correct, anytime you look at it and if you’re within phone range, wi-fi, it will update.
Q.You said this morning that you were checking it. Well, you checked it after 30 June and when asked why, you said ‘reassurance’, do you remember giving that evidence.
A. From this morning, yeah.
Q. Reassurance about what.
A. That my licence was still - for whatever reason, was still active.
Q.Because at that point in time, do I understand your understanding that you thought that something further from the court had to be done in order for your licence to be disqualified, is that -
A. Yes, that’s the assumption.
Q.So that you were waiting on a summons or some other document from the court which would give effect to any disqualification, is that what your understanding was at the time.
A.I was expecting, as I stated, that because I’d taken the blood sample kit away, that that - you know, I would then have an opportunity to then present the results in court or whatever to - it would have an effect on the outcome of the penalty that I might be looking at having, so, yes.
Q.So your understanding was that there had to be some other action taken before your licence was disqualified.
A.Well, my intentions were because of the - you know, the severity and impact that this was going to have on me, I was going to go and see a lawyer anyway, but, you know, I double-checked and found out that this e- licence is - you know, it’s a current - you know, it’s, you know, a legal document and the status - and its status is reflected on what my - whether, you know, it reflects what my licence status is.
Q.No, the question I asked was, you were under the impression that some further action had to be taken for your licence to be disqualified. Was that your understanding.
A. Under this circumstance I was expecting to get a summons to appear in court, yes.
Q. Until then your licence wouldn’t be disqualified. That was your belief, wasn’t it.
A.Well my belief was that it wasn’t disqualified because my licence told me that at any point in time, right, when I checked it, if it didn’t say suspended, it was active.
Q.But how is that consistent with you saying that you think that there had to be some court order when the app might say something. How are the two things consistent. Why were you checking your app when you think that a court order would have to disqualify your licence.
A. Why was I checking it?
Q. Yes.
A.Because I did it the first day and I thought - then second day, and then it told me, so I figured there was something else that was going to happen.
Q. But if you thought that there was going to be a court order -
A. Yeah.
Q. - there’d be no need to check the app, wouldn’t there.
A.Well, I did it for a few days, obviously, not on the day that I was pulled over. I’d stopped by then.
Consideration
There was other some evidence, but the above extracts capture the most important aspects relevant to the imposition of penalty. (I will later return to the question of recording of a conviction.) I heard full addresses on penalty by both counsel.
I foreshadow that I accept the evidence of the defendant. I will give some brief reasons concerning some particular topics.
The defendant’s police interview on 30 June 2018
As to the defendant’s police interview with Brevet Sergeant Slater (Slater) on 30 June 2018, there are three important preliminary matters to be noted.
First, the interview was of necessity relatively lengthy in that the breath analysing process had to be conducted by reference to required protocols, including the additional requirements generated by the returning of readings in excess of the PCA. However, as to the matter of “instant disqualification”, this was only mentioned in two short passages to which I refer below. Again, the interview procedure was probably carried out according to internal police protocols and these protocols may well be formulated on the basis of an assumption that everyone will be well aware that South Australian police officers now have the power to “instantly disqualify” a person’s driving licence without reference to a Court and therefore, it is thought, little explanation is needed.
However, I consider that that is an unsafe assumption to make. Some persons may be quite unaware of such powers. Many citizens of a certain age (and the defendant is of that age) have a basal understanding or assumption that police officers have the job of investigating suspected crime and the Courts have the job of adjudicating as to guilt and imposing penalties of various types. I do not suggest that such citizens spend an excessive amount of time discussing the doctrine of separation of powers by name over their breakfast cereal, but they are mentally predisposed to expect that a situation roughly equivalent in content to that doctrine continues to prevail. For such people, the “instant” disqualification of a person’s driving licence by a police officer may be quite foreign and highly counter-intuitive.
Secondly, as to this defendant, the application of these traditional precepts to the particular charge of drink driving had been previously confirmed in his mind about twenty years previously in 1997 when he had been charged with driving with the PCA. At that time, “instant loss of licence” did not exist and the defendant had appeared in Court where he pleaded guilty. Of particular relevance, he was not disqualified even when he pleaded guilty, but rather the Magistrate (as was a very common procedure) fixed a date in the future when the disqualification would start so as to enable him to put his affairs in order prior to that date.
Thirdly, the defendant was mentally fatigued from the three-hour telephone conference and, more to the point, he was affected by the substantial amount of alcohol he had drunk during that conference; he had a high breath analysis reading of .171 grams of alcohol in 210 millilitres of breath. When at the very end of the interview the defendant was offered paperwork and asked to sign it he stated, I think correctly: “Well obviously I’m not in the condition to understand it so no point me signing it, is there”.
Indeed, starting from the very first page of the interview, it is clear that the defendant was simply not focussing on the matter at hand. From then and continually throughout the interview, he was referring to the fact that he had recently reported to police that certain offenders he had named had stolen his wallet (containing his driver’s licence) and a substantial amount of money but, he asserted, he had received no assistance from the police. For whatever reason, the defendant was quite rude with Slater (although he had had nothing to do with the wallet theft matter); the defendant appeared to be much more interested in criticising the police generally than in listening to what Slater had to say about the drink driving matter. The following passage toward the end of the interview is emblematic of the defendant’s state of mind:
DS … You’re not obliged to answer them but anything you do say may be used in evidence, alright. The time now is 2113 hours which is 9.13 pm, Saturday 30th June 2018. Obviously just remind you were at the Golden Grove Police Station. I’m Brevet Sergeant 73842 Slater and this is Senior Constable Cox, also from Golden Grove Police. Like I said I’m gonna ask you some questions, you’re not obliged to answer them, anything you do say may be used in evidence. We’ve got you driving a short time ago up on the Grove Way and you’ve provided a positive alco test, you also provided a positive reading of .171 which is over three times the drink/drive limit. Ok. Is there anything you want to say about that.
RC I’m actually ecstatic about the police service that I’ve been getting since I’ve moved into this area, as I’ve explained, because you know, when I’ve needed service from you guys you’ve ben incapable of supplying any. But anyway, yes, you’ve done your job, I’ve gone around the corner and yes I’ve done the wrong thing, and I will pay the price for that. Happy to do so.
This unfortunate attitude by the defendant likely had two sequellae. First, his urge to criticise overwhelmed his interest in listening, with the result that he heard, or understood, little. Secondly, his rude attitude in turn had the effect of Slater perhaps being a bit more abrupt when attempting to warn the defendant about the instant disqualification than he might otherwise have been.
There are only two passages in the transcript of the recorded interview with Slater relevant to the question of whether the defendant actually appreciated that he was being disqualified from driving then and there. The first is as follows:
RC Why don’t you go out and arrest some fucken criminals … ? …
DS Because I’m dealing with you, because I’m dealing with you, alright and when were finished with you …
RC … and I’m a criminal.
DS … when we’re finished with you we’ll go lock up some criminals Ok.
RC You will – not you won’t, because …
DS Oh yeh, probably won’t, getting a bit late.
RC Yeh …
DS Alright, so you’re gonna be reported for that offence. I’m gonna issue you with a notice of instant disqualification, alright. So there’s consequence to this. If you get caught driving whilst you’re disqualified you can be basically reported or arrested, alright do you understand that.
RC Yeh course I do.
DS Ok.
RC Yep. My IQ’s 136, what’s yours … [Emphasis added]
Conversation as to their respective IQs then continued for some time with more baiting by the defendant and some (unfortunate but understandable) reaction by Slater.
It is to be noted that in the statement by Slater at the beginning of this first passage, the only indication that the defendant was being disqualified there and then was the single word “instant”. But what immediately follows that word is a much more general statement concerning driving whilst disqualified and the seriousness thereof. When at the end of the statement Slater asks the intoxicated defendant “do you understand that?” there was unfortunately every chance that the defendant would respond to the last thing that he had heard rather than the single word “instant”. And I think he did so.
The second passage is as follows:
DS Alright, so I need to tell you, as a result of this allegation your driver’s licence is suspended or you are disqualified from holding or obtaining a driver’s licence for the relevant period as defined in Section 47a (aa) of the Act, being a period of up to 12 months. Ok it’s an offence punishable by imprisonment to drive a motor vehicle where your licence is suspended or you are disqualified.
RC So I can go and apply for one point back and get it back, or …
DS You can appeal the instant loss of licence which … ? … explain on how you can do that, if you wish to do so. Alright, so you just need to just sign on here just to acknowledge receipt of this form.
RC Well obviously I’m not in the condition to understand it so no point me signing it, is there. And if I don’t sign it.
DS It’s still valid.
RC So what happens to my car and can I have my house keys back.
DS Yeh we’ll sort that out in just a moment. Alright, so your car will be impounded for 30 days, so there’s your instant loss of licence paperwork.
RC Mmm.
DS It explains on the back there if you want to appeal the, the … ? …
RC I don’t have my glasses … ? …
DS … yeh, I know, I’m just telling you I’m not … ? … on there, when you get your glasses you can read it there, alright. So that’s yours, keep hold of that. Alright. That’s that done. That’s that done. You can switch that off now if you want.
Cox The time is now 9.24 and the video is being switched off.
In this second passage, Slater no doubt thought that he was warning the defendant; but again, there is a lack of clarity with the emphasis being on reading out a legal mantra complete with alternatives and definitions. Again, the defendant’s response gives rise to the real possibility that he had not grasped the important fact that he was actually being disqualified from that very moment.
When the defendant gave evidence before me concerning what he thought at the time of the interview and in the following days leading up to 6 July 2018, a difficult grey area was explored in which nuances of meaning matter, and the observed demeanour and speech patterns of a witness are quite important. I paid close attention to the defendant as he gave evidence. I accept his evidence that he did not glean, from all that was said to him, that he was being disqualified from driving by a police officer there and then. I find that the message Slater sought to send simply was not received by the defendant who, in the state in which he was, only heard that which he was predisposed to hear. This may be shortly summarised as that he was immediately precluded from driving due to his intoxicated state, that he would receive a summons in due course and that it would be up to the Court to deal with disqualification of his licence.
The police paperwork given to the defendant
As to the form referring to instant disqualification said to have been given to the defendant at the police station, I accept the defendant’s evidence that he did not read that form at the police station since he did not have his reading glasses at the time (and he in fact said as much in the interview). Mr O’Flaherty really accepted this aspect of the defendant’s evidence during the course of the cross-examination but submitted that it would be unlikely that he did not read it over the next day or so. However, the defendant asserted in chief and in cross-examination that he did not do so and stated in effect that he gave all of the paperwork to the lawyers to sort out. This is consistent with what he had said to the police officer when he was apprehended on the subject charge. He was not shaken in cross examination and I could not say that he appeared to be lying; I accept his evidence on this matter.
The defendant’s e-licence
As to the defendant’s e-licence, I accept his evidence that his wallet containing his traditional driving licence was stolen shortly after the e-licence system was introduced and that he had opted to replace the stolen licence with an e-licence because of the sales propaganda then rampant; it being represented that an e-licence was quicker to obtain, constituted a live and up to the minute record of actual driving licence status operated by an infallible computer system and would be accepted as proof of identification equal to that of the traditional system. As it turned out, it was easy enough to obtain but fell down badly in areas two and three. In particular, I accept that the defendant did check the App on the mornings of 1, 2, 3 and 4 July 2018, obtained readouts on each of those occasions that his licence was valid, and considered that as sufficient confirmation of his original belief that he could continue to drive until a Court ordered otherwise. He therefore stopped checking thereafter. Notice of his disqualification was finally uploaded on the system at 2:46 pm on 4 July. I find that the defendant was unaware of this development at the time of the subject driving on 6 July 2018. [16]
[16] Although I do not take it into account, it is interesting that Magistrate Gumpl who did not see the defendant give evidence observed: “…in the normal circumstance, anyone listening to this story might, at first blush say, the defendant couldn’t possibly not know that he was disqualified and yet I’m left with this explanation that to me rings true so I’m not going to find it’s contumacious.”
Consideration
Counsel for the appellant referred to the Magistrate’s statement “The defendant’s driving does not amount to contumacious behaviour” and submitted in writing:
24. The Magistrate made the very error identified by Kourakis CJ discussed above by elevating the finding of contumacy as a necessary precondition to imposing a sentence of imprisonment. His Honour expressly held a finding of contumacy was necessary, against the submissions made by the prosecutor, who referred his Honour to the decisions of Police v Nissen and Police v Chilton. …
However, in the remarks of the Magistrate there is no statement that contumacy was a necessary precondition to imposing a sentence of imprisonment. His Honour’s sentencing remarks are consistent with a recognition that a finding that the defendant was not contumacious was relevant to the decision of whether or not to impose a sentence of imprisonment. That approach is orthodox and does not equate to a finding that contumacy was a necessary precondition to imposing a sentence of imprisonment.
Counsel also submitted as follows:
37. Further, and in the alternative, even if the Respondent did hold the honest belief his licence was not disqualified, it was expressly conceded that belief was not reasonable. No other explanation was given as to the purposes of the Respondent’s conduct that gave rise to the offending on 6 July 2018. In the circumstances, the Respondent’s conduct demonstrates at the very least a ‘dismissive attitude’ or ‘indifference’ to the disqualification, particularly in circumstances where that disqualification was expressly explained to him by police and set out in the form. [Emphasis added]
First, this passage proceeds on the premise that “even if the Defendant did hold the honest belief his licence was not disqualified”. On that premise, the fact that the belief was not reasonable as well as honest does not nullify the mitigatory effect of the holding of the belief.
Secondly, if the defendant did hold that belief, “the purposes of the Defendant’s conduct that gave rise to the offending on 6 July 2018” (in other words, his purpose in driving that day) was largely irrelevant. Thus, if a defendant says that he knew that he was disqualified but that he had a very important reason to drive on the occasion in question, the nature of that reason is of great importance when assessing penalty. But if, as here, one proceeds on the premise that the defendant did honestly think that he was not disqualified, his reason for driving matters little; and it cannot as a matter of logic per se “demonstrate(s) at the very least a ‘dismissive attitude’ or ‘indifference’ to the disqualification …”.
Thirdly, counsel’s submission gains nothing by adding the final words “particularly in circumstances where that disqualification was expressly explained to him by police and set out in the form” because, again, the premise of the submission (“even if the Respondent did hold the honest belief his licence was not disqualified”) is that the defendant did honestly hold the belief that “his licence was not disqualified” irrespective of police efforts to explain the situation.
On a more general note, much has been said in South Australia concerning the appropriate penalty for driving while disqualified in judgments prior to the five Judge decision in Police v Cadd & Ors;[17] and in the judgments in Cadd; and in judgments subsequent to Cadd. Thus in Police v Nissen Kourakis CJ stated:[18]
26. The financial and human cost of personal injury and property damage caused by traffic offences weighs heavily on the community. The most effective measures for deterring serious and persistent traffic offenders and thereby protecting the public are licence disqualifications and suspensions. As King CJ observed in Coombe v Douris,[19] those orders are ineffective if they are generally disregarded. Driving in contravention of a licence disqualification or suspension is difficult to detect and, for that reason, it is critical that when an offender is apprehended the disqualification and suspension orders are strongly enforced.
27. The feature of an offence of driving whilst disqualified from holding a licence, or whilst a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving whilst holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender’s personal circumstances.
28. The measure of an offender’s attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach.
29. It can generally be inferred that a person who drives when disqualified, or whilst holding a suspended licence, after having been convicted of an earlier offence, has a contempt for or, at least, a dismissive attitude to orders of disqualification or suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence.
30. It follows that, as a matter of principle, sentences of immediate imprisonment will often be justified in the case of first offenders who show little regard for orders of disqualification or suspension. As for repeat offenders like the appellant, it is difficult to contemplate circumstances which, consistently with the matters of general principle to which I have referred, would justify a non‑custodial sentence.
[17] (1997) 69 SASR 150.
[18] (2014) 120 SASR 50, 58-59.
[19] (1987) 47 SASR 324 at 325.
However, judgments such as that in Nissen focus on the myriads of combinations of circumstances which may lead a person to disobey intentionally an order of disqualification.[20] On a spectrum of blameworthiness, the top level of seriousness may be constituted by cases demonstrating highly entrenched defiance of Court orders (thus constituting a very high level of contumacy); down through cases involving decisions made to disobey the order on an isolated occasion for a reason that is understandable as a matter of humanity (such as to preserve one’s employment or appease a demanding spouse); and then at the bottom of the spectrum, cases involving a real emergency which will once again involve matters of degree and will, at some stage, merge into that very difficult area of “necessity” which may found a defence to the charge itself in extreme circumstances.
[20] A case in which the defendant asserted an erroneous belief that he was permitted to drive is Police v Vannarath [2015] SASC 187. However, there the defendant had multiple previous convictions for driving while disqualified and was subject to a suspended prison sentence imposed for that same offence. He asserted that he thought he could drive on an International licence when his local licence was disqualified and sought to assert a failure to understand the many warnings that he had received in Court by reference to cognitive difficulties. The case is very different to that at bar.
However, as noted above, much of this is bye the bye, because the present case is not to be addressed by reference to that particular spectrum. I have found that, as at 6 July 2018, the defendant honestly believed that he was not disqualified from driving and therefore his purpose of driving on that day really does not matter very much. Of course, the defendant behaved unreasonably in that he could, and should, have obtained prompt legal advice concerning the police paperwork and this is a factor militating against leniency to which I have regard.
Imposition of penalty
I have reproduced the sentencing remarks of Magistrate Gumpl above but since they are not unduly long I reproduce them here again:
Based on the material which has been tendered, particularly the defendant’s requirement to travel internationally for his work and the possible consequences of a conviction and his understanding of the status of his licence through the digital information on the ‘My SA.gov’ website, together with Exhibit D1, and Ms Stanley’s submission, I am satisfied that extenuating circumstances do in fact exist.
The defendant’s driving does not amount to contumacious behaviour and pursuant to Section 24, without conviction, the defendant is fined $400. Court fees are waived.
The two issues of imposition of penalty and the recording of a conviction (and the extenuating circumstances relevant to each) are somewhat jumbled here. However, whereas the Magistrate accepted some of these matters without requiring the defendant to establish them (and in this he erred), the position now is that the defendant has given sworn evidence on the relevant matters and has been cross-examined by counsel. I have accepted that evidence and so the position as to the mitigatory matters equates to that which was previously assumed in favour of the defendant by Magistrate Gumpl. Indeed, the position is now somewhat more favourable to the defendant in that several lingering questions have in my view been satisfactorily answered. As Bray CJ observed in a passage noticed above, “Some stories which might appear incredible when related in oratio oblique by counsel, or for that matter by the defendant himself, become believable … when related on oath in the box and after surviving the test of cross-examination.”[21]
[21] Law v Deed [1970] SASR 374, 378.
I consider that this is an unusual case and even taking into account the fact that the defendant behaved unreasonably in failing to promptly obtain legal advice (including as to the police paperwork), the matter clearly does not warrant a prison sentence; particularly for a 60-year old man who has not previously received a prison sentence (either suspended or custodial). I consider that a fine is appropriate. I may have imposed a fine of somewhat more than $400, but having regard to the principles of double jeopardy confirmed by the majority in Cadd to apply to Magistrate Court appeals,[22] I consider that it would be inappropriate to do other than to impose the same fine as that imposed by Magistrate Gumpl in the particular circumstances of this case.
[22] (1997) 69 SASR 150 Doyle CJ at 156-159; Duggan J at 172; Mullighan J at 173-174. That this remains the case has been confirmed recently in Workcover Corp v Musolino (2007) 100 SASR 147; Police v Papadopoulos [2008] SASC 325; Police v Chilton (2014) 120 SASR 32; Police v Nissen (2014) 120 SASR 50.
Recording or non-recording of a conviction
I turn now to the question of the recording or non-recording of a conviction. Section 24 of the Sentencing Act 2017 (the Act)[23] provides as follows:
[23] Previously s 16 of the Criminal Law (Sentencing) Act 1988.
If a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
Following the passage of transcript reproduced above at [16], and before formal orders were made, Ms Stanley immediately commenced to make further submissions thus:
MS STANLEY: Your Honour, I would like to address the issue of conviction as well.
HIS HONOUR: Okay.
MS STANLEY: Just to very briefly address something that my friend raised, there is some evidence in support of my client’s position which is he told the police at the time they spoke to him about driving disqualified that he had checked his e-licence and it showed that his licence was valid.
HIS HONOUR: Quite so. Alright so just on the conviction thing, tell me, he has no priors for this?
MS STANLEY: He has no priors for this. He has one prior offence from 1997 for a drink driving offence.
HIS HONOUR: What’s the basis of proceeding without conviction?
MS STANLEY: That is that there are extenuating circumstances and those circumstances are in line with the decision of Police v Varma which was a medical practitioner who asked for no conviction on a drink driving offence. Ultimately, the High Court found that non-conviction was so open because there was no evidence before the court about those extenuating circumstances. My client conducts business in Canada. I can tender a bundle of documents.
HIS HONOUR: Have you spoken to the prosecutor about this?
APP BATTERSBY: We agitated this before Mr Broderick.
HIS HONOUR: So I take it that this is the very reason why, notwithstanding the fact that he can’t do what he did, this motivated him to proceed without conviction. Because of the material that he saw.
MS STANLEY: Yes.
HIS HONOUR: Okay, any arguments about that?
APP BATTERSBY: Yes. I’ve seen the material before and effectively it says that if he is convicted for drink driving and drug driving, he would find it difficult to go to Canada but there’s nothing about drive disqualified and he already has a conviction for drink driving from 1997. So if there’s anything difficulties that he has, they exist already. Prosecution say that this is a regulatory traffic offence. There is nothing before court to suggest that it isn’t going to happen again and that is really one of the tests. It’s either trifling or there is good reason not to impose conviction. Prosecution say there is no good reason to not impose conviction. There might be, I don’t concede it but there might be …
HIS HONOUR: Well he’s getting on in years, that’s one thing, and he hasn’t gotten any priors for driving disqualified. Anyway, Ms Stanley do you want to answer on that?
MS STANLEY: I do Your Honour. In fact, that’s not what I’m about to tender says. The document is a document from the Canadian government website. It’s really difficult to get ….
HIS HONOUR: Well perhaps I should just look at that.
MS STANLEY: Thank you Your Honour. I tender a document from the Canadian government website about inadmissibility into Canada. I also tender a passenger itinerary from my client’s son which shows that he has in fact had to travel to Canada recently. I also tender a distribution agreement between my client’s company and Canada.
HIS HONOUR: Alright, I’ll receive them as a bundle, exhibit D1. Just bear with me folks.
MS STANLEY: I would like to draw Your Honour attention to page 2 of the Canadian government website which says you could be found inadmissible for a number of reasons such as, second dot point, committing a crime including driving while under the influence of drugs or alcohol. So that is a non- exhaustive list but clearly Canada will deny entry for a drink or drug driving offence. The length of time between the offending and the entry into Canada is relevant and my client has not been denied entry into Canada because of the 1997 drink driving offence.
HIS HONOUR: So just tell me about the second document in the bundle. The itinerary obviously talks to his work over there. Tell me about that.
MS STANLEY: It does. My client manufactures an embalming fluid. I’m a lawyer, I’m not a scientist so my technical terms might be lacking. He manufactures an embalming fluid and that embalming fluid prolongs the life of bodies. It has wide application in universities and hospitals. He has agreements in Canada and the United States to bring that product into Canada. The second document which is the passenger itinerary receipt shows a clear need for travel to Canada. My client’s son went to Canada in his stead on this one occasion because my client had these actions going on in Court. This is my client’s company …
HIS HONOUR: So just tell me, the basis upon your submission not to convict is. I’ve scanned these documents and they show me it might be a problem getting into Canada and it shows me that he goes to Canada and I accept that he’s got business there. Just tell the reason why I shouldn’t convict.
MS STANLEY: Well there is Supreme Court authority for not convicting under extenuating circumstances as set out in section 24 of the Sentencing Act. The reason that the court in Police v Varma said that a conviction was appropriate was because of the lack of evidence that was tendered to the court in support of those extenuating circumstances. Now that has been covered by the documents that have been tendered today. In relation to a driving disqualified offence that is a more serious offence in my submission than a drink driving offence because it is effectively a contempt of court. The Canadian government website talks about conviction for a crime, it includes drink and drug driving. In my submission cause that is the offence that more people are likely to be convicted of. In my submission …
HIS HONOUR: That’s okay. Based on the material which has been tendered, exhibit D1, and Ms Stanley’s submission, I’m satisfied that extenuating circumstances do in fact exist and pursuant to section 24 without conviction fine $400. Court fees are waived.
These matters were referred to before me in sworn evidence by the defendant and in submissions by counsel in somewhat greater detail than previously. Documents concerning the Canadian government’s policy as to admission into Canada and the defendant’s business interests in Canada were tendered.
I proceed to the first inquiry under s 24(a). The defendant gave evidence as to the seriousness with which he regards the offence of driving while disqualified and the care he will take in the future to prevent any reoccurrence. He has not previously been charged with such offending. Having regard to the evidence and to all of the facts and circumstances of the case, I am of the opinion that the appellant is unlikely to commit such an offence again.[24]
[24] See generally Police v Kostoff [2014] SASC 130.
As to the exercise of the discretion under s 24(b), I repeat some of what appears in Police v Kostoff:[25]
26. Turning to s 16(b) of the Act, the correct approach was succinctly summarised by Doyle CJ in Schmidt v Police thus:[26]
Section 16 reflects an assumption that ordinarily a conviction will be recorded on a finding of guilt. On the other hand, it gives the court a fairly broad power to refrain from doing so. The power arises only when the court is of opinion that the criteria in subpara (a) and subpara (b) are met. In that event, if the court considers that ‘good reason exists for not recording a conviction’, the court may refrain from doing so. In other words, the specified criteria must first be met, and then it is a question of whether, in the light of those criteria and all the relevant circumstances, there is good reason for not recording a conviction. The concept of a good reason not to record a conviction is a broad one, although there are, of course, limits to the factors that fall to be considered.
27. I might add that it has always been accepted that the disjunctive “or” appearing at the end of each placita (i), (ii) and (iii) in subparagraph (b) signifies that a favourable exercise of discretion may be solely based on one only of those placita. Further, within placitum (i), a favourable exercise of discretion may be solely based on the combination of the character, antecedents and age of the defendant; or be solely based on the physical condition of the defendant; or be solely based on the mental condition of the defendant. And still further, matters falling under one placitum can be combined together with matters falling under a different placitum to constitute “good reason”. This same approach was previously taken to the Offenders Probation Act 1913.[27]
[25] [2014] SASC 130, a case involving charges of driving unregistered and uninsured.
[26] [2005] SASC 482, [16].
[27] Repealed by s 78, Statutes Amendment and Repeal (Sentencing) Act 1988 on 1 January 1989.
The defendant is now 60 years old, has always been a hard worker, and has driven since he obtained his driving licence at the age of 17 years. He has not previously been charged with driving while suspended. Indeed, apart from the two drink driving cases to which I have referred, I understand that he has no other relevant motor vehicle convictions and no criminal convictions. I accept that the circumstances surrounding the commission of the drive while disqualified offence was highly unusual in that he did believe at the time that his licence was not suspended.
I also accept that he wishes to travel to Canada for legitimate and important business reasons and that he believes that the recording of a conviction might present a difficulty in his admission to Canada. I have regard to his evidence, all of the written material before me and the submissions of his counsel concerning these matters. On the other hand, while I accept that the appellant perceives the matter as important and that it is productive of stress for him, there is a dearth of evidence as to the potential for the difference between the recording and non-recording of a conviction to affect significantly his chances of admission to Canada. Furthermore, counsel for the respondent points out that the Canadian Government material calls attention to the fact that previous offending, specifically including drink driving, may prevent admission to Canada and submits that the fact that the defendant has committed this offence twice (in 1997 and 2018) would be of just as much concern, and probably more, than the present charge of driving while disqualified.
However, when all is said and done, I am here concerned only with the drive while disqualified charge. Two different Magistrates have previously found in favour of not recording a conviction for that charge on very much the same material that is before me; and the oral evidence of the defendant strengthened rather than weakened his position. Having regard to the required criteria for enlivening the discretion under s 16(b), I am satisfied by reference to the combination of the appellant’s age, good character and general antecedents (all under placitum (i)) and particularly the extenuating circumstances surrounding the commission of the offence (under placitum (iii)) that good reason exists for not recording a conviction.
Accordingly, I will not record a conviction for the drive while disqualified offence. As is evident, the major single factor that persuades me is the unusual aspect of the defendant honestly believing at the time of driving that his licence was not suspended. However, I emphasise that the character of that offending is very different to the commission of the drink driving offence six days earlier on 30 June 2018, which is a relatively serious example of that offence and for which the defendant really has no excuse at all. Although the appeal against the finding of guilt of that drink driving offence was dismissed some time ago, it appears that the imposition of penalty has still not occurred, for whatever reason. I make clear that I do not intend that my decision in this case should give any support to any future submission that no conviction should be recorded on the drink driving charge. Any such application should be dealt with purely on its merits.
Disposition
Since my views as to the appropriate sentencing disposition coincide with the disposition by Magistrate Gumpl appealed against, I see no point in formally setting aside the sentence and orders of the Magistrate only to reimpose them in exactly the same terms. The appropriate order is simply that the prosecution appeal be dismissed.
0
17
0