R v Dempster No. DCCRM-00-791, DCCRM-00-800
[2001] SADC 7
•9 February 2001
R v ANDREA GERAE DEMPSTER
[2000] SADC 7
Judge Lunn
Criminal
REASONS FOR SENTENCE
On 29 April 1999 Andrea Gerae Dempster was sentenced to 9 months imprisonment in this Court on two counts of taking part in the sale of cannabis. That sentence was suspended upon her entering into a bond in the sum of $100 to be of good behaviour for 18 months. An application to revoke that suspension is now before me by reason of the subsequent offences which are mentioned below. The bond and its breaches were admitted.
On 14 July 1999 Dempster pleaded guilty in the Magistrates Court to having driven a motor vehicle on 26 August 1998 while she was disqualified from holding a driver’s licence. At that time she was under a points demerit disqualification which had commenced on 21 July 1998. She says that she mistakenly believed at the time that she did hold a licence because it had previously been disqualified for non-payment of fines but had been restored after an arrangement had been made for the payment of the fines by instalments. She was put under a bond in the sum of $100 to be of good behaviour for 12 months and to come up for sentence if called upon. It seems that the Magistrate did not treat that offending as being contumacious. While I was not impressed with her evidence and explanation about it, I am not prepared to find it proved that it was contumacious. I have before me an application for enforcement of the bond and for Dempster now to be sentenced for this offence. She admitted the bond and its breach by the other offending mentioned below.
On 27 July 2000 Dempster pleaded guilty in the Magistrates Court to offences of receiving stolen property, giving false information to a second hand dealer, breaking and entering a dwellinghouse and larceny and possession of amphetamines. A single sentence was imposed for all of these offences of imprisonment for 4 months which was suspended upon her entering into a bond in the sum of $500 to be of good behaviour for 12 months. Each of these offences breached the bond granted by this Court on 29 April 1999. In my view the Magistrate should not have sentenced Dempster for these offences, but should have referred her sentencing to this Court under s57 of the Sentencing Act. However, there is nothing that I can do about it. It impedes an appropriate single sentencing package being imposed as was required by the Full Court in Tarasenko v Boylan (1992) 58 SASR 587.
On 1 August 2000 Dempster pleaded guilty in the Magistrates Court to three offences on 27 December 1999 at Eudunda of driving while disqualified from holding a driver’s licence, driving an unregistered vehicle and driving an uninsured vehicle. The Magistrate properly referred her sentencing on these matters to this Court to be dealt with in conjunction with the application to revoke the suspension of the sentence imposed on 29 April 1999.
On 21 November 1999 Dempster had been notified by the Registrar of Motor Vehicles that her driving licence had been suspended for 3 months for an accumulation of demerit points. She did not dispute receiving this notice. At the time her life was in considerable turmoil. Her defacto husband was serving a term of imprisonment at Cadell. She was in serious financial difficulties and the electricity had been cut off from her home. She was regularly abusing amphetamines. A friend had agreed to give her the use of the car in question on Christmas Day so that she and her two young children could visit her defacto at Cadell. However, he did not deliver the car until 27 December. Dempster then immediately drove this car from Morphett Vale to Cadell. She was stopped by police at Eudunda on her return trip. She claimed in her evidence to me that at the time of making this trip she had forgotten that her licence was disqualified. I do not accept this. She was not an impressive witness. Contrary to her evidence to me, she had told the police on 27 December at Eudunda “that she thought she had a current driver’s licence to drive a motor vehicle as she had made arrangements for her fines to be paid and was unaware of any further disqualification from demerit points.” The psychological report tendered shows her to be of average intelligence. I do not accept that she had forgotten about the notice which she had received on about 21 November that her driving licence was disqualified. There is an overwhelming inference that in the desire of herself and her children to see her defacto at Cadell she took the risk that she would not be caught if she drove there. She made the trip knowing that it was illegal for her to do so and that it was in breach of the bond entered into on 14 July 1999 for similar offending. Hence I find her driving while disqualified on this occasion to have been contumacious.
Dempster is now 35 years of age. She has been in a long term defacto relationship with Serge Malesevic. There are two children of that relationship now aged 6 and 10. Malesevic has two children from a prior relationship now aged 19 and 15 who also form part of the present family unit.
Dempster has a not insignificant criminal record principally for drug and traffic offences. She has never previously been imprisoned.
I have a long report dated 7 January 2001 from Mr Balfour, a psychologist, who has gone into Dempster’s personal history in great detail. I have taken the contents of this report into account. She has psychological problems through having been given up for adoption by her biological mother. She has at various times in the past had problems with alcohol, cannabis and amphetamines, but she does not appear to have any significant problems with them at present. To her credit she has kept out of trouble with the law since the second drive disqualified offence on 27 December 1999.
I accept that the gaoling of Dempster will have a significant adverse effect upon her two children. However, their father will be able to look after them while she is in gaol, albeit that it will impede him from earning an income in that period. While it is a serious matter to separate growing children from their mother there comes a point at which continued offending gives the Court little option but to take this step.
The second offence of driving while disqualified is a serious one. The maximum penalty for it is imprisonment for 2 years. I consider that there is no other appropriate penalty for this offending other than an immediate custodial sentence.
The offending for which Dempster pleaded guilty on 27 July and 1 August 2000 was substantial and was committed over a period of time. Some of it was drug related. The failure of Dempster to comply with the bond of 29 April 1999 was not trivial and there are no proper grounds upon which her breaches of it should be excused. Accordingly, the suspension of the sentence of 9 months imprisonment imposed on that date is revoked. There are no grounds under s58(4) of the Sentencing Act to reduce that sentence.
For the offence of driving disqualified on 27 December 1999 Dempster is sentenced to imprisonment for 3 months. But for her early plea of guilty this would have been a sentence of 4 months imprisonment. For the offence of driving disqualified on 26 August 1998 she is sentenced to imprisonment for 1 week. Each of these sentences is cumulative on the other and on the sentence of 9 months producing a head sentence of 12 months and 1 week. On the offences of driving an unregistered vehicle and an uninsured vehicle on 27 December 1999 she is convicted without penalty.
Because of Dempster’s responsibility to her children, and because she has not previously been in prison, I am prepared to grant her the considerable leniency of fixing a much lower than usual non parole period of 3 months. However, she should clearly understand that if she should ever offend again in circumstances which require imprisonment it is most likely she would be given a non parole period which was a much greater proportion of the head sentence. Both the sentences and the non parole period are to run from today.
In the circumstances I do not estreat the monetary amounts of the bonds or impose any further disqualification of her driving licence.