Police v Sheean No. Scgrg-98-1263 Judgment No. S18
[1999] SASC 18
•2 February 1999
POLICE v SHEEAN
[1999] SASC 18
Magistrates Appeal
1 WICKS J This is an appeal by the Police against a sentence imposed by a Magistrate on the respondent in respect of two counts of driving whilst disqualified and for a reduction of a term of imprisonment when revoking a suspended sentence. The two counts of driving whilst disqualified arose out of separate incidents on the same night as a result of which the respondent was charged with a total of six driving offences on two separate complaints. The facts giving rise to these two counts are complicated so I propose to set them out in detail.
2 At about 9.58 pm on 11 March 1998, police officers observed the respondent driving east on Flaxmill Road, Christie Downs, at approximately 40 kms per hour. They noticed a lighting defect on his number plate and so determined to stop the vehicle. When the police officers approached, they detected a smell of liquor on the respondent so they asked him to submit to an alcotest, the result of which was positive. When the police officers asked the respondent for his name he gave it as Anthony Charles Sheean.
3 The respondent was then taken to the Christies Beach Police Station where he gave his correct name, Christopher John Sheean, and submitted to a blood alcohol test. The result of the blood alcohol test was 0.090 grms of alcohol in 100 mls of blood. A licence check was conducted which revealed that the respondent was disqualified from driving from 6 June 1997 to 5 March 1999.
4 The respondent was charged with the following offences:
driving with the prescribed concentration of alcohol contrary to s47B of the Road Traffic Act 1961;
driving whilst disqualified contrary to s91 of the Motor Vehicles Act 1959;
failing to truly answer questions asked by a member of the police force contrary to s42 of the Road Traffic Act 1961; and
driving a vehicle which did not comply with the requirements of s119 of the Road Traffic Act 1961 contrary to s111 of that Act.
5 Later the same evening at 10.43 pm, the same police officers observed a Holden utility driving very fast. They followed the vehicle at a speed of 84 kms per hour in a 60 kms per hour zone. The police stopped the vehicle and the driver got out. The police officers recognised the driver as the respondent and as the same person they had dealt with only 30 minutes earlier. They again asked the respondent to submit to an alcotest which test gave a reading of 0.072 grms in 100 millilitres of blood. An infringement notice was issued in respect of driving with the prescribed concentration of alcohol. The respondent was further charged with:
driving at a greater speed than 60 kms per hour, namely 84 kms per hour, in a 60 kms per hour area contrary to s49 of the Road Traffic Act; and
driving whilst disqualified contrary to s91 of the Motor Vehicles Act.
6 On 30 June, 1998, the respondent appeared before a Magistrate at the Magistrates Court at Christies Beach on the above charges (except the matter the subject of the infringement notice). Also before the Magistrate was an application to enforce a breached bond. This application related to an appearance by the respondent before the Magistrates Court on a charge of driving whilst disqualified, of which the respondent was convicted. A sentence of one month’s imprisonment was imposed but was suspended upon the defendant entering into a good behaviour bond in the amount of $10.00 for 18 months. It was alleged that the respondent had breached this bond by committing the above offences.
7 The respondent, who was represented by counsel, pleaded guilty to each of the counts detailed above and admitted the breach of bond.
8 The matter was adjourned to enable the defendant to attend the Drive Assessment Clinic to determine whether he suffered from alcohol or drug dependence.
Sentences imposed by the learned Magistrate
9 On 25 August 1998, the respondent appeared again at the Magistrates Court at Christies Beach and the above facts and further facts detailed below were put to the Court. The learned Magistrate then proceeded to sentence the respondent as follows:
on the offence of driving with the prescribed concentration of alcohol, a conviction and fine of $1100 and disqualification from holding and/or obtaining a driver’s licence for a period of three years commencing forthwith;
for driving whilst disqualified, being the first offence committed on 11 March 1998, a conviction and imprisonment for a period of six days commencing forthwith;
for failing to truly answer questions asked by a member of the police force contrary to s42 of the Road Traffic Act and for driving a vehicle which did not comply with the requirements of s119 of that Act, contrary to s111, a conviction without penalty;
for driving at a greater speed than 60 kms per hour in a 60 kms per hour area, a conviction without penalty;
for driving while disqualified, imprisonment for a period of six days to commence forthwith.
10 Also, the learned Magistrate estreated the bond referred to above and forfeited the amount of the bond, namely $10, to be paid forthwith. The learned Magistrate reduced the period of the sentence in relation to the bond to six days to be served forthwith.
Grounds of Appeal
11 In the grounds of appeal it was alleged that the learned Magistrate erred:
(a) in his sentencing discretion, when revoking the suspended sentence, by reducing the term of imprisonment from one month to six days;
(b) in that the sentence of six days imprisonment for the offence of driving whilst disqualified committed at 9.58 pm on 11 March 1998 was manifestly inadequate;
(c) in that the sentence of six days imprisonment for the offence of driving whilst disqualified committed at 10.43 pm on 11 March 1998 was manifestly inadequate;
(d) in ordering the three sentences set out in (a)-(c) above be served concurrently;
(e) in that the sentence imposed in respect of (a)-(c) above, both individually and in total, were manifestly inadequate.
Personal Circumstances
12 The respondent is 27 years old and at the time of hearing in the Magistrates Court was single and living with his parents. He left school at the age of fourteen to work as a roof tiler. In 1997, he set up his own roof tiling business. It was submitted on the respondent’s behalf to the learned Magistrate that the respondent performed work for a builder who supplied employees to the respondent in relation to contracts performed by the respondent. It was submitted to the court that when the respondent attends contracts, he takes the contractor’s employees with him to perform other related building work. If the respondent is not to attend to the contracts, the employees will also not be able to attend, leaving building work incomplete and thereby causing financial pressures on the contractor.
Criminal History
13 The respondent’s relevant criminal history as placed before the learned Magistrate was as follows:
14 In 1994, at the Magistrates Court at Adelaide, the respondent admitted breach of bail for which he was fined $500.
15 In 1995 at the Magistrates Court at Adelaide on a charge of property damage, the respondent was convicted and placed on a good behaviour bond of $1000 for two years.
16 In 1995 at the Magistrates Court at Adelaide, the respondent was fined $50 in relation to a drugs matter.
17 On 23 November 1995 at the Magistrates Court at Christies Beach the respondent was convicted of driving under the influence, breach of a probationary licence and exceeding the speed limit. He was fined $800 and disqualified from holding or obtaining a driver’s licence for twelve months.
18 On 5 June 1997 at the Magistrates Court at Christies Beach the respondent was convicted of driving a motor vehicle with inadequate lights, driving under the influence and refusing to give his name and address. He was fined $1200. He was disqualified from obtaining or holding a driver’s licence for 21 months from 6 June 1997. On 5 June 1997 the respondent was also convicted of driving whilst disqualified from holding or obtaining a driver’s licence. He was sentenced to one month’s imprisonment suspended upon him entering into a bond in an amount of $10 to be of good behaviour for eighteen months.
19 On 20 March 1998 at the Magistrates Court at Christies Beach, the respondent was convicted of a charge of failing to wear a seat belt and fined $125.
Magistrate’s Sentence
20 This matter is presently concerned with the estreatment of a bond where the original sentence involved was one month’s imprisonment. On the estreatment, that sentence was reduced to 6 days.
21 During the same hearing, the learned Magistrate dealt with two other offences of driving whilst disqualified and imposed a sentence of six days on each to be served concurrently with the offence of driving whilst disqualified, the subject matter of the estreated bond.
22 Under subs91(5) of the Motor Vehicles Act (1959), driving whilst disqualified from holding or obtaining a driver’s licence carries a maximum penalty of imprisonment of six months for a first offence and a maximum penalty of imprisonment of two years for a subsequent offence. The offence in question is regarded as serious. It is the principal sanction used in cases where persons are not fit to drive whether through consumption of alcohol or in respect of the use of a motor vehicle in connection with traffic or other offences. The prime purpose of the sentence which is prescribed is to punish for breach of the obligation not to drive. It is essential that a person with a proven bad driving record or with a proven criminal record should be subject to a period of licence disqualification. If the penalty for driving whilst disqualified is not observed in most cases, it will simply fall into disrepute.
Appeals by prosecuting authorities
23 In Everett v The Queen (1994) 181 CLR 295, the High Court considered the question of appeals against sentence on the part of prosecuting authorities. In that case, the majority said at p299:
"Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case."
24 In Police v Cadd (1997) 69 SASR 150, Doyle CJ considered these principles in the context of an appeal from the Magistrates Court under s40 of the Magistrates Court Act 1991.
25 In view of the sentences imposed by the learned Magistrate it would seem to me that this is an exceptional case where the sentencing process has gone awry and where the sentences applicable in this case need to be reviewed afresh.
Breach of Bond
26 The sentence of imprisonment in relation to the estreated bond cannot be reviewed under subs58(3) of the Criminal Law (Sentencing) Act 1988. That subsection provides that where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court is empowered to refrain from revoking the suspension and may exercise certain other powers which are set out in the subsection. It seems to me that subs58(3) is inapplicable in the present case.
27 Subsection 58(4) provides that where a court revokes the suspension of a sentence of imprisonment, the court may exercise certain powers under the subsection. In particular, it may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence. On the material before the learned Magistrate and on the material before me, I can see nothing in this case which would warrant the exercise of the special powers given to the court in subs58(4) of the Criminal Law (Sentencing) Act. In my view, the learned Magistrate was not justified in the circumstances of this case in reducing the sentence, the subject of the bond which has become the subject of estreatment under the Act.
28 Beyond s58 of the Criminal Law (Sentencing) Act, there is no power under which a court may on the estreatment of the bond reduce rather than increase the sentence of imprisonment, the subject matter of the bond.
Facts of the present case
29 In this case, the respondent committed the offence of driving whilst disqualified not once, but twice in the same evening, the second time only minutes after he had been charged in relation to the first incident.
30 On the evening of 11 March 1998, the respondent went to Christies Beach at about 8 pm with four adult friends and a three year old son of one of the couples. They had attended the beach in two cars with one of the respondent’s friends driving the respondent’s motor vehicle. They were at the beach for approximately two hours during which time the respondent’s friends and the respondent consumed alcohol. When they decided to leave the beach to go home, the respondent was conscious of the fact that his friends had consumed a considerable amount of alcohol. Consequently, he decided to drive his car home rather than leave it the hands of one of his friends who were in no fit condition to drive. On the way home, he was stopped by the police as related earlier in these reasons and told that he was to be conveyed to the Christies Beach Police Station. He then realised that he had left on the headlights of his vehicle and locked his keys in the car. He was only wearing shorts without a T-shirt and he did not have his wallet in his possession.
31 After charging the respondent at the Christies Beach Police Station, police officers returned him to his vehicle and told him to secure his valuables. He informed the police officers that he had locked his keys in the car. They supplied him with a coat hanger with which to unlock the vehicle. However, he was unable to unlock his car with the coat hanger and smashed a window in order to gain entry. The respondent then got into his car and, unable to think of any other alternative, and fearful that his car would be damaged or stolen if left abandoned he decided to drive it home.
Sentence
32 The appropriate penalty for the offence of driving while disqualified has been the subject of some discussion in this Court and, in particular, in Police v Cadd (1997) 69 SASR 150 where it was held that the approach to be taken in respect of contumacious offending by a first offender should be a sentence of imprisonment, although it was acknowledged that the circumstances might dictate a lesser punishment. See the judgment of Doyle CJ at p171 and the judgment of Mullighan J at p179. In this context, "contumacious" is intended to mean something more than mere intention to drive while disqualified. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it: Police v Cadd (supra) per Mullighan J at p179.
33 In the present case I am concerned with second and third offences. One may have some sympathy for the respondent in the predicament in which he found himself, but in my view, any such sympathy should not carry very much weight when determining the gravity of the sentences to be imposed. The sentences in respect of the second and third offences should not be made concurrent: Police v Cadd (supra) at p170 and presumably should not be made concurrent with the sentence imposed in respect of the first offence. The respondent has convictions for a number of other traffic offences.
34 In setting a penalty for the second and third offences of driving whilst disqualified, I should have regard to the fact that Parliament has substantially increased the maximum penalty for a second and third offence to two years imprisonment. This increase took place in 1993.
35 I must also consider the sentences taken as a whole. In R v Smith and Shoesmith (1983) 32 SASR 219, Jacobs J observed at p221:
"It was, however, incumbent on the sentencing Judge who decided to aggregate the sentences, to consider whether the aggregate period was an appropriate sentence for the criminal conduct, viewed as a whole (Reg.v.Knight (1981) 26 SASR 573)."
36 In my opinion, having regard to the gravity of the offences and other considerations referred to in these reasons, I am of the view that the sentencing process in this case has gone awry and that a penalty of six days for the three offences of driving while disqualified is grossly inadequate. Moreover, the inadequacy is compounded by the fact that the sentences are concurrent.
37 In the circumstances, I would allow the appeal.
38 On file number MCCHB-98-2271 in the Magistrates Court, I would reinstate the term of one month’s imprisonment on the breach of bond, such sentence to be served forthwith and the period of the sentence to take account of any period of imprisonment already served.
39 On file number MCCHB-98-1646 in the Magistrates Court, in respect of the offence against s91 of the Motor Vehicles Act 1959, I would set aside the sentence of six days’ imprisonment and impose a sentence of one month’s imprisonment to be served cumulatively on the expiration of the term of imprisonment referred to in relation to file number MCCHB-98-2271 above. In all other respects I would confirm the sentences, fines, levies and costs imposed in relation to file number MCCHB-98-1646.
40 On file number MCCHB-98-1865 in the Magistrates Court, in respect of the offence against s91 of the Motor Vehicles Act 1959, I would set aside the sentence of six days’ imprisonment and, having particular regard to the totality principle, impose a sentence of one month’s imprisonment to be served cumulatively on the term of imprisonment referred to in relation to file number MCCHB-98-1646 above. In all other respects, I would confirm the sentences, fines, levies and costs imposed in relation to file number MCCHB-98-1865.
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