Police v Van Lammeren No. Scgrg-98-1131 Judgment No. S6872

POLICE v VAN LAMMEREN
[1998] SASC 6872

Magistrates Appeal

Perry J (Ex tempore)

This is an appeal by the police against the suspension of a term of 6 months imprisonment imposed on the respondent in the Magistrates Court sitting at Adelaide following the respondent's plea of guilty to 13 counts arising out of the respondent’s conduct in obtaining a driver's licence under a false name, driving an unregistered and uninsured vehicle, and on three separate occasions, driving while disqualified, those occasions being on 23 May 1998 at Adelaide, and on 1 and 2 June 1998 at South Brighton.
The respondent was represented by counsel in the court below.
After hearing submissions the learned sentencing magistrate sentenced the respondent to a global penalty under s18(A) of the Criminal Law (Sentencing) Act 1988, that being a term of 6 months imprisonment.
She then proceeded to suspend the sentence of imprisonment upon the entry by the respondent into a bond in the sum of $11 to be of good behaviour for a period of 18 months, subject to conditions as to supervision by an officer of the Department of Correctional Services. She also ordered the respondent to perform 80 hours of community service within a period of 18 months. As well, she extended the then current period of disqualification of licence by a further 6 months.
In the notice of appeal the appellant complains that the learned magistrate erred in suspending the sentence for imprisonment, and further that she erred by giving excessive weight to the respondent's medical condition.
The respondent is a young man aged 21 years. Despite his youth he has accumulated an imposing list of traffic and related offences.
In July 1995 in the Mt Gambier Magistrates Court, he was convicted on a charge of driving without due care. Later in the same year he was convicted on charges of failing to wear a seatbelt, disobeying a learner's permit and disobeying a provisional licence condition. Before that year was over he also appeared in court on charges of driving an unregistered and uninsured vehicle. He then suffered his first licence disqualification which was for 14 days.
Soon afterwards, in 1996 he appeared in the Adelaide Magistrates Court where he was convicted on a charge of driving in a reckless or dangerous manner. As well as a fine, his licence was disqualified on that occasion for 8 months.
A further licence disqualification for 21 days was imposed less than a fortnight later, when he was convicted on charges of driving an uninsured and unregistered vehicle and driving without a licence.
A minor conviction was later recorded at Mt Gambier, that is, driving without P plates on Christmas eve in 1996.
His defiance of the traffic laws continued throughout 1997 when amongst other convictions, he was convicted of driving without P plates, exceeding the speed limit and failing to carry a provisional licence.
His traffic offending continued into 1998 when on 12 January he was before the Adelaide Magistrates Court on a number of charges as a result of which he was convicted of undue noise, disorderly behaviour, failure to answer questions and resist arrest, driving without due care and driving in a reckless and dangerous manner. As a result of the latter conviction he was fined $400 and a licence disqualification was imposed for a period of 3 years, that is until the year 2001.
His reaction to the licence disqualification was prompt. Two days later, that is on 14 January 1998 he forged a birth certificate and used it to open an account at Bank SA under a false name. With the account he received an ATM card. He obtained a letter stating that he was a customer of the bank. Armed with those documents he attended at Mitcham Motor Vehicles Registration Office and obtained a learner's permit in the false name.
On 14 March he passed a practical driving test and received his probationary licence, still in the false name.
Eventually he was caught up with on 2 June 1998. When the police interviewed him then, he made full and frank admissions of the three offences of driving whilst disqualified, and as to the obtaining of the false documentation and its use in obtaining a learner's permit and subsequently a probationary licence in the false name. But his frankness fell short of revealing who had provided him with the false birth certificate. He declined to identify that person, whom he called Peter.
Interestingly, having regard to the submissions later put to the learned sentencing magistrate and to this court, he stated that he was aware that he was disqualified from driving and that he needed a licence for work.
In the court below his counsel tendered a report from a cardiologist who confirmed that the respondent has a cardiac problem involving paroxysmal tachycardia. There was a separate problem also with asthma. The tachycardia was described as potentially hazardous and requires prompt treatment in the event of any attack.
A separate medical report was tendered from a general practitioner which confirmed that the respondent's father suffered from Parkinson’s disease. That provided support for a submission that the respondent felt obliged to look after other members of his family. I will have more to say about that a little later.
Attention has focused on the three occasions upon which the respondent drove while disqualified. But what should not be overlooked in this case is that it is not a simple case of driving while disqualified. It is a case in which the respondent pleaded guilty to very serious offences quite apart from the traffic offences. On count one, (forging a birth certificate), he was liable to a penalty under s53 of the Births, Deaths and Marriages Registration Act 1996 of a $10,000 fine or 2 years imprisonment. On counts two, and three (furnishing false information), he was liable under s135 of the Motor Vehicles Act 1959 to a fine of $2,500 or 6 months imprisonment.
Furthermore, this was not the first occasion upon which the respondent had been disqualified. As I have said there were three other occasions when he was disqualified prior to the date upon which the disqualification now in question was imposed, that is on 12 January 1998.
As to the circumstances in which he came to drive on the three occasions the subject of the driving whilst disqualified counts, I have been assisted by an affidavit from Ms McCrohan, the respondent's counsel before me and in the court below.
On the first occasion, 23 May 1998, it appears from her affidavit and the matters which were put to the learned sentencing magistrate, that the respondent drove in order to look after his brother Daniel, who was driving another car with the younger of the three brothers, Jamie and their girl friends. It was suggested that there had been in some trouble with another young man who had been harassing the three brothers.
It was put that the respondent drove because he was worried about Daniel and the possibility of trouble involving him occurring that day.
As I have said, the other two acts of driving charged occurred on 1st and 2 June 1998. All that I have been told about that is that the respondent's car was found parked at his uncle's shop where he was working with his uncle. It appears that in fact he drove to his work at that shop on both of those dates. No information was put before the court below or before this court to support the view that there was any emergency, duress or other extenuating circumstance associated with those two acts of driving.
Furthermore, the distance travelled between his place of residence and the shop, which is at Seacombe Road, South Brighton, according to the affidavit of the Police Prosecutor, is a distance of some 13 kms. The roads travelled were Brodie Road, Beach Road, Lonsdale Road and Seacombe Road.
It is clear from the learned sentencing magistrate's remarks on sentence that she was much influenced by the evidence concerning the respondent's heart condition.
Apart from that, as I have said, the respondent's uncle with whom the respondent lives with his two brothers, has Parkinson’s disease. It was put to the learned sentencing magistrate and repeated before me that the respondent’s uncle has come to rely upon the respondent to assist him in the day to day exigencies of living and his work.
Furthermore, the learned sentencing magistrate said:
“One of the defendant's brothers (who doesn't have a licence and doesn't know how to drive) the youngest of the family, had shortly beforehand been committed to a hospital with acute depression.”
(I have been informed by Ms McCrohan that in fact that was the oldest brother). The learned magistrate continued:
“The hospital admission followed a period of residence in Western Australia which appears to have re-opened old issues from the very unhappy childhood these boys had. It seems to be this hospitalisation of his younger brother, which precipitated the defendant's stupid decision that the best way to be loyal to his family, and to be able to meet their needs even when driving a car was involved, was by creating a false identity. In this very unusual case, I have no doubt that that is a fair summary of what this defendant was trying to do.
The defendant himself has severe medical problems, and, as I understand it will shortly have to enter hospital for a period of cardiac investigations.
It is that factor which is the final clinching fact. (over and above the effect on his dependents) which in my view makes suspension of the prison sentence appropriate.”
In my opinion that passage is indicative of appealable error. It seems to me that looking at the matter broadly, the learned sentencing magistrate must be taken to have under-rated the seriousness of the charges to which the respondent had pleaded guilty, and his long history of defiance of the traffic laws. Furthermore, she appears to have given too much weight to the evidence as to the respondent's medical condition and home situation. Although, no doubt, the respondent’s medical condition is serious, there is nothing in that condition which would justify the imposition of a suspended term of imprisonment as opposed to a custodial term. There is nothing to suggest that his condition represents a threat if he was to be incarcerated in gaol.
In any event, it was something of an over statement to describe the respondent’s two brothers and uncle as “dependents”. His two brothers were then 20 and 17 years of age respectively, and his uncle, despite the suggestion that he had Parkinson’s disease, was, apparently, conducting a business. There is nothing to lend credence to the view that his 20 year old brother, as opposed to the youngest of the three, needed any particular support or help.
It follows that in my opinion, the sentencing discretion miscarried. It falls for me to exercise the discretion afresh.
I have been assisted by counsel's analysis of the line of authorities which has grown up following the decision of the Full Court in Police v Cadd & Ors[1]. In particular I have been taken by Mr Grant through Castelluzo[2], Bates v Police[3], Valentincic v Police[4], Wood v Police[5], Harshazi v Police[6], Johns v Police[7], Theophilus v Police[8].
[1] (1997) 69 SASR 150
[2] (1997) 193 LSJS 13
[3] (1997) 70 SASR 66
[4]   unreported Olsson J, 4/12/97, Judgment No. S6477
[5]   unreported Matheson J, 29/1/98 Judgment No. S6543
[6] (1998) 197 LSJS 50 (Mullighan J)
[7]   unreported Lander J, 24/6/98, Judgment No. S6729
[8]   unreported Olsson J, 20/1/98, Judgment No. S6521
No useful purpose would be served by an extended analysis of those authorities.
It is sufficient to say that I remain of the view which I expressed in Bates v Police[9] and in particular, the comment made by me in that case:
“I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance such as removing a car from a street into an adjacent driveway and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.”
[9] supra 70 SASR at 73
Ms McCrohan has said everything which could possibly be said in answer to the arguments adduced on the appeal. She emphasised that the actions of the respondent were driven by his desire to help his family members with whom he lives, that is his two other brothers and his uncle.
In my opinion, for the reasons which I have already given, there are limits to the extent to which that argument can be driven. No doubt the respondent was at times motivated to help the other family members. But in the first place this case is unusual in the deliberate, devious and fraudulent way in which the respondent went about obtaining first a permit, then a probationary licence to drive, commencing as I have said, his endeavours to thwart the suspension which had been imposed upon him on 12 January 1998, two days later.
There is the added factor that on three previous occasions he had been subjected to licence disqualifications, albeit without evidence that he had breached those disqualifications.
Most importantly however as I have indicated, this was a global sentence which was intended to punish the defendant not only for no less than three acts of driving while disqualified, but also for the other offences, those associated with his fraudulent endeavours to obtain a licence or permit to drive, being particularly serious.
In all the circumstances, I consider this case to be within the category of cases in which the Crown, has demonstrated that it is proper for this Court to intervene. The case is in the rare and exceptional category in which it is proper to allow a Crown appeal.
Furthermore, however the matter is approached and whatever meaning is to be given to the word “contumacious” in the sense in which it was used in Cadd[10] and referred to in the other authorities, it seems to me that this was unquestionably contumacious driving.
[10] (supra)
The three episodes of driving appear to me to fall far short of circumstances which would justify a non-custodial term of imprisonment. Indeed as I have indicated, the second and third instances of driving on 2 and 3 June 1998, are virtually unexplained by reference to any extenuating or other circumstances, other than that the respondent took it upon himself to drive to work
Ms McCrohan has argued that all of his conduct was committed under the umbrella of help for his family members, but as I have indicated I think there are limits to the extent to which that contention can be driven.
Ms McCrohan has quite properly drawn my attention to double jeopardy considerations. The fact that the respondent has been released on a bond and that some time, albeit a relatively short time, has elapsed since he was released on a bond, that is from 22 July. This has the potential to operate unfairly on him if he was now to be sentenced to a custodial term.
They are matters to be taken into account and I have not failed to do so. But they arise in any case where there is an order quashing a suspension of a sentence.
That consideration has not deterred this Court from quashing an order for suspension on many occasions, where it has seemed proper to do so.
Here it seems to me that the offending was so serious and the fact that, as I have emphasised, it is not a simple case of driving while disqualified, but there are also other serious offences to do with forgery under the Births, Deaths and Marriages Registration Act 1996 and the giving of false information under the Motor Vehicles Act 1959, I feel unable to refrain from imposing what in my opinion should have been imposed in the first place, namely a custodial term.
There has been no suggestion that the length of the term of six months’ imprisonment is other than appropriate.
The order is that the appeal be allowed and that the suspension of the term of imprisonment imposed by the learned sentencing magistrate is quashed to the intent that the respondent serve the term of imprisonment of six months.
I direct that the respondent present himself to the Magistrates Court within 14 days of today so that the sentence of imprisonment can be carried into effect.

[Following discussion re leave to appeal].

I grant leave under s50(3) of the Supreme Court Act to appeal from this decision to the Full Court.
There will be bail pending the hearing of the appeal in the respondent's own recognisance of $1,000 together with a guarantor of the same amount. It is a further condition of bail that the respondent that he reside and continue to reside at 13 Commodore Court, Lonsdale.
It is a further condition of the order granting bail that the appeal be prosecuted promptly. I abridge the time for the setting down of the appeal to the intent that the appeal be listed for hearing in the Full Court session to be heard in October 1998, and in accordance with such further directions as I may give in that regard.

[1998] SASC 6872

22 September 1998