Police v Stirling No. Scgrg-98-1502 Judgment No. S17

[1999] SASC 17

POLICE v STIRLING

[1998] SASC 17

Magistrates Appeal: Criminal

1 WILLIAMS J.   This is an appeal against convictions recorded on 23 October 1998 and sentences imposed on 3 November 1998 by a Magistrate sitting at Elizabeth.  The appellant was convicted and sentenced for driving offences committed on 5 September 1997.  The appellant was charged with the following offences arising out of one incident:
Count 1:             Exceed prescribed concentration of alcohol
Count 2:             Driving Under Disqualification
Count 3:             Driving Without Due Care
Count 4 :            Driving with Inadequate Lights

2 These offences occurred in the township of Blyth near Clare. The appellant pleaded not guilty to all counts. At the time of the offences the appellant was already disqualified from driving after a previous conviction for driving under the influence of alcohol.

1. The prosecution and defence cases
   3 The prosecution alleged that two police officers, Sergeant Berry and Senior Constable Hutchings were performing mobile patrol duties on the evening of 5 September 1997.  During the course of these duties (at about 11:35pm) they were travelling west along Guilford Street, Blyth, when they first noticed a car travelling east towards them approaching the Harley Street intersection.  When they first saw the vehicle its headlights were on.  The vehicle veered sharply to the right and crossed the centre line onto the wrong (south) side of the road.  Whilst crossing the intersection or thereabouts the headlights were extinguished, the vehicle veered to the left and then returned to the northern side of Guilford Street and (without indicating) angle parked in front of the Blyth Hotel.  The police officers pulled over and parked at the rear of the parked vehicle.  The police officers saw the driver get out of the vehicle and step towards the footpath.  One of the police officers recognised the driver as the appellant and called out to him by name and he came towards the police vehicle.  The police officers had a conversation with him and gave him an alcotest which was positive.  They took him to the Police Station and conducted a breath test to which he tested O.169. He was charged with the above offences and driven to his parents’ home.  During his conversations with police the appellant consistently said that he had not been driving and that he wasn’t allowed to drive.
   4 The defence case was that the defendant and his friend (Agnew) had travelled in a Sigma to the Hotel earlier in the night with Agnew driving.  They originally only intended to go there to purchase a bottle of "Cougar" (whisky) and to drink a few beers.  However, when they were leaving some of their friends showed up and they went back into the bar, leaving the bottle of cougar in the car.  Agnew left before the defendant and walked home with the keys to the car in his pocket. After the hotel closed the appellant walked over to the car to retrieve the Cougar as he was wishing to walk home and drink it.  He looked for his cigarette lighter but could not find it and so he turned on the headlights of the car hoping that the lights would reflect off the white wall of the hotel and create more light in the car.  He turned the headlights off and the police turned up and asked him what he was doing.  Upon the defence case the appellant told the police he was using the headlights to find his lighter.  The appellant also claimed to have told the police that he had no keys and told them they could search him or the car.  The defence alleged that the appellant was not breath tested at the scene rather that he was taken back to the Clare Police Station for a Breath Test.  The reading was not disputed.
   5 The Magistrate treated the essential issue in dispute as being the identification of the appellant’s vehicle (a Sigma) as the vehicle travelling towards the police officers and the identification of the appellant as the driver of that vehicle.  Although there was street lighting in the area and although there was no positive evidence of any other vehicles being in the vicinity, the appellant’s defence involved an assertion that the police must have seen some other vehicle travelling in an erratic fashion and confused it (after it had disappeared around a street corner) with the alleged stationary Sigma in which the appellant was searching for his personal belongings.

2. The appeal against conviction
   6 The appellant complains that the Magistrate failed to have regard to the whole of the evidence as relevant to the topic as to whether a Sigma motor car (belonging to the sister of the witness Agnew) was observed by police approaching the intersection abovementioned.
   7 The ultimate question at issue was whether the appellant drove the Sigma along Guilford Street.  The Magistrate explained that he intended to approach the question "by degrees".  No doubt the Magistrate’s manner of explaining his reasoning was a response to the way in which the proceedings had been conducted and the approach adopted by the parties to the issues.
   8 The appellant complains as to the manner in which the Magistrate reached his conclusion.  The appellant contends that upon the face of his reasons the Magistrate did not consider the evidence of the witness Agnew before reaching his decision and that the decision is thus flawed.
   9 I disagree with this submission.
   10 The Magistrate firstly considered the evidence of the two police witnesses and that of the appellant.  This to me seems appropriate bearing in mind that the police and the appellant were the only people present when the appellant was observed by the police.  This body of evidence could conveniently be considered as a segment.
   11 The Magistrate then brought to account the evidence of Agnew.  However, Agnew was not made aware of the appellant’s plight until about two weeks after 5 September 1997.  He gave evidence of an occasion when he drove the Sigma to the hotel and left it there but Agnew in evidence was not able to fix a date for this incident.  Accordingly, his evidence was of limited value and apart from the appellant’s own evidence there is no way of knowing whether he was giving evidence about the same occasion as that which led to the appellant’s apprehension on 5 September 1997.
   12 In his assessment the Magistrate had regard to the matters which were not disputed in cross-examination of the police namely:

3. that the police had seen a vehicle coming towards them and

4. that the vehicle behaved in the manner stated by the police as it approached and entered the intersection and

5. that the appellant was seen by the police alight from the driver’s side of the Sigma and walk towards the footpath.
   13 The Magistrate considered the evidence of those present at Guilford Street (namely the appellant and the two police officers) and he assessed their evidence in relation to each other.  He made findings based thereon.  In particular he made findings as to when the headlights were operated and whether the appellant was carrying a bottle of Cougar whisky as he left the vehicle.
   14 The Magistrate then dealt with the evidence of the witness Agnew and reached a conclusion adverse to both the appellant and Agnew.  It was logical for the Magistrate to consider the defence witnesses together because their evidence dealt with matters known only to them.
   15 Having assessed and rejected the evidence of Agnew the Magistrate then returned to the evidence of the police.  He was unimpressed by the appellant’s evidence but he properly recognised that the appellant should not be convicted on that account.  The Magistrate reviewed the pieces of evidence which he was prepared to accept in these terms:
   "I have to ask myself whether the accepted incriminating circumstantial facts, when taken together and viewed as a totality against the whole of the evidence, with the presumption of innocence in mind, remove, beyond reasonable doubt, the possibility that the defendant was not the driver.  In my assessment, not only were the circumstances consistent with the defendant having been the driver, but they were inconsistent with any other rational conclusion.  By way of inference I am satisfied beyond reasonable doubt, and I find, that the person who drove the Sigma along Guilford Street on the occasion in question was the defendant."
   16 The reasons of the Magistrate form one composite process of reasoning; I can see no error in the way in which the Magistrate went about his task and the steps by which he explained his reasons and committed them to paper.  To suggest (as does the appellant) that the Magistrate reached his conclusions without properly bringing to account all the evidence does not fairly reflect the process of reasoning and the Magistrate’s response to the way in which the issues were dealt with at trial.  Having reviewed the transcript of proceedings and the reasons of the Magistrate I do not consider that the appellant has made out the ground of appeal.
   17 I would dismiss the appeal against conviction.

6. Appeal against sentence
   18 The appellant appeals against sentence which he contends was manifestly excessive.
   19 Upon the offence of driving under disqualification the Magistrate recorded a conviction and sentenced the appellant to one month’s imprisonment and declined to suspend the sentence.  (It is this penalty which particularly attracted counsel’s argument on the hearing of the appeal.)
   20 For the three offences of driving with more than the prescribed concentration of alcohol in his blood (s47 of Road Traffic Act 1961), driving without due care (s45 of Road Traffic Act) and driving without lights (s111 of Road Traffic Act) the Magistrate proceeded in accordance with s18A of the Criminal Law Sentencing Act 1988. The Magistrate recorded convictions, imposed a fine of $300 and disqualified the appellant from holding or obtaining a driver’s licence for three years. The Magistrate also ordered the defendant to pay court fees ($94), victim of crime levy ($112) and prosecution fee of $300 (with time to pay).
   21 The Magistrate considered that it was alarming that the appellant drove with more than three times the prescribed alcohol concentration - the appellant’s test reading showed 0.169 grams in 100 millilitres of blood.  The Magistrate observed that the appellant chose to drive when there was no compelling reason for him to have done so and he regarded the circumstances as so serious as to prevail over matters personal to the appellant.
   22 The Magistrate was unable to make any definitive finding as to the reason for the appellant having driven; the appellant has denied the offence and his explanation on oath - that he was not driving - was rejected by the Magistrate.
   23 On 11 November 1996 the appellant was disqualified by a Magistrates Court at Clare from driving for eighteen months - until 10 May 1998.  This order followed the appellant’s conviction of driving under the influence of alcohol at near Blyth on 29 August 1996.  On that occasion the appellant’s blood alcohol reading was 0.205.  He was also fined $900 in respect of that offence.
   24 On the occasion of the offences with which this appeal is concerned namely 5 September 1997 the appellant’s erratic driving in the vicinity of the Blyth Hotel attracted the attention of approaching police at about 11.35pm.  The police evidence described the appellant upon interview as being moderately affected by alcohol (as the Magistrate so found).  The appellant walked away from the now stationary car as the police approached him.  When the police challenged the appellant as to his manner of driving he replied ‘ "It wasn’t me.  I haven’t got a licence.  I am not allowed to drive."
   25 It is apparent from this answer (in view of the Magistrate’s finding that the appellant was driving) that when he spoke to the police the appellant was acutely aware of the fact of the earlier order of disqualification and the significance of that order. The appellant’s choice to deny the driving rather than explaining his true position may have been motivated by fear of the consequences, by embarrassment or by a knee jerk reaction at a time when his faculties were disordered or perhaps by some other consideration. However, by the time of trial in August 1998 the appellant had the opportunity to reflect and again chose to maintain his original stance that he was not driving. It is therefore not surprising that the Magistrate proceeded upon the basis that the appellant had no "compelling reason" for his conduct and exhibited a "degree of defiance". The Magistrate expressed himself in a way which showed that he was applying the decision of the Full Court in Police v Cadd (1997) 69 SASR 150 at 171-2.
   26 It was argued on appeal that the Magistrate had not excluded the possibility that the appellant was undertaking a very short journey in a very small town - somewhere between his parents’ home on one side of the town and his girl friend’s home on the other side and the hotel.  Even if the facts could be inferred as counsel suggested then in my opinion there is nothing about that scenario which would change the characterisation of the appellant’s driving as assessed by the Magistrate.
   27 The Magistrate brought to account the appellant’s personal circumstances, but was unable to find anything which suggested that the seriousness of the offending could be discounted. The possibilities put forward by the appellant’s counsel in the course of making submissions would not have put any significantly different complexion on the facts. Upon this appeal a central point to the appellant’s argument was that the Magistrate had failed to sentence upon the most favourable view of the facts available to the defendant (see Law v Deed (1970) SASR 374). Even after making allowance for the difficulties which the appellant has created for himself by his version of events as contained in his sworn testimony, the Court cannot assume that some mitigating factor was present of the type mentioned by Doyle CJ in Cadd. The facts do not suggest any pressing need for the appellant to be driving. The appellant’s argument notes that when the appellant chose to drive the hour was late, the street was deserted and the journey around the town probably of limited duration. However, even if the last mentioned matter were established as being the fact, none of these matters bear upon the element of defiance [of authority] which the Magistrate mentioned. In this respect the facts speak for themselves. The way in which the appellant sought to distance himself from the Sigma and immediately repudiated any suggestion that he was driving speak volumes - particularly when these facts are coupled with the appellant’s immediate reference to his own disqualification.
   28 My attention was drawn to the remarks of various members of this Court since Cadd:
   Bradford v Police - Debelle J - 9 November 1998 - Judgment S6943
   Johns v Police - Lander J - 24 June 1998 - Judgment S6729
   Harshazi v Police - Mullighan J - 1 May 1998 - Judgment S6663
   Bates v Police - Perry J - 19 November 1997 - Judgment S6430
   Van Lammeren v Police - Full Court - 4 November 1998 - Judgment S6920
   29 Those cases review the difficulties associated with properly bringing to account (in the sentencing process) compelling personal circumstances by way of mitigation in the light of the circumstances under which an offence of driving under disqualification has been committed.
   30 In my view on any view of the authorities the learned Magistrate was correct in his assessment that the circumstances of Mr Stirling’s offending displayed a contumacious breach and required service of a term of imprisonment despite matters personal to him which might be put forward in his favour.  The Magistrate has carefully considered whether the sentence should be suspended; there is nothing in his remarks to suggest that he has not properly exercised his discretion in accordance with that principle.
   31 This is the case of a young man  who is in employment with a good work record in a rural area and sharing responsibility for the upbringing of a child.  Apart from his earlier drink driving offence nothing further is alleged against him.  He comes to court with good testimonials.  These are factors to be brought to account as the Magistrate has done.
   32 Doyle CJ in Cadd at 167 noted that the seriousness of the offence of driving under disqualification may make it more difficult to suspend a gaol sentence. The Magistrate has acted in recognition of this approach and has treated the element of defiance in the appellant’s conduct as a matter of aggravation. In Van Lammeren, the Full Court reviewed the sentencing principles as they are to be applied in light of the decision in Cadd - particularly the discretion to suspend a sentence in terms of s39 of the Criminal Law (Sentencing) Act. The Court said:
   "It is stating the obvious to say that it was a pre-requisite to the exercise of the discretion to suspend conferred by s39 of the Criminal Law (Sentencing) Act that the sentencing magistrate must fairly have been entitled, on the basis of the evidence before her, to conclude that "good reason" existed for such exercise.

As Lander J pointed out in Police v Castelluzzo, because the majority of the Full Court in Police v Cadd & Ors were of the view that it would only be in circumstances where the offending was contumacious that a sentence of imprisonment ought to be imposed, it necessarily follows, in a consideration of whether "good reason" exists, that a court could not overlook that the offending was, in fact, contumacious.

That is not to say that it is not also necessary to pay due regard to all matters relevant under s39.  These will include aspects such as the previous character of the offender, his or her age, the existence or otherwise of persons dependent on him or her and the likely impact of actual imprisonment on such persons, the extent of genuine contrition exhibited and other relevant personal circumstances..."

33 In the present case the sentencing Magistrate has characterised the offending as serious.  There is no suggestion of contrition.
34 I have obtained considerable assistance from the remarks of Debelle J in Bradford (see above).
"It is apparent from the magistrate’s reasons that he is extremely sceptical of the reasons advanced by the appellant, a conclusion which, it seems, was reinforced by the fact that the appellant had not given evidence on oath to explain the circumstances of the offence.....The decisions in Harshazi and Johns are to be distinguished since, in those cases, the respective magistrates had not characterised the offence as contumacious.  In this case the magistrate was aware of the decision in Harshazi but nevertheless concluded this was a contumacious breach.  The appellant deliberately drove the vehicle knowing that he should not.  I do not think that the magistrate erred in characterising the offence as a contumacious breach.  His finding was open on the evidence and there is no reason to set it aside.

I share the views expressed by Lander J in English that it is important for a magistrate sentencing for this offence to be satisfied of the circumstances in which the offence was committed.  No doubt, in consequence of the decision in Cadd, many offenders will claim the offence was not contumacious.  In rare instances that may be clear on the police allegation but, as a general rule, magistrates will need to enquire carefully into the circumstances surrounding the offence.  Generally speaking, they should require evidence to be given on oath by the defendant and any other witness on whom the defendant relies.  Unless that practice is adopted and the assertions of a defendant are tested, there is a risk that the orders of disqualification will be treated with contempt.  As Lander J said in English, a submission that an offence was not committed in circumstances of contumacy should not be too readily accepted lest penalties provided by s91 be deprived of any deterrent effect...."

35 I have considered the Magistrate’s exercise of discretion in the light of s39 of the Sentencing Act. The Magistrate was entitled to conclude that the appellant had demonstrated a refusal to abide by a Court order with respect to licence disqualification. Each case will turn upon its own facts and sometimes the Court can make allowance for pressures which unforeseen circumstances - falling short of actual emergency - may impose upon a person disqualified from driving. Nothing was before the sentencing Magistrate which would entitle him to make such an allowance and he properly recognised the seriousness of the appellant’s actions. The Magistrate did not otherwise overlook the appellant’s personal circumstances.
36 In my view it has not been demonstrated that the penalties imposed upon the appellant are manifestly excessive.  Nor has it been shown that the sentencing process has miscarried.
37 The appeal against sentence will be dismissed.