Reeves v Police No. Scgrg-97-1001 Judgment No. S6386

[1997] SASC 6386

REEVES v POLICE

Doyle CJ (ex tempore)

This is an appeal pursuant to s.42 of the Magistrates Court Act against a sentence imposed for the offence of property damage.

The appellant was charged with damaging property, contrary to s.85 of the Criminal Law Consolidation Act. The maximum penalty for this offence is 2 years’ imprisonment. The appellant pleaded guilty. He was sentenced on 1 July 1997, in the Elizabeth Magistrates Court, to 1 month’s imprisonment, suspended on him entering into a bond in the sum of $100 to be of good behaviour for a period of 2 years. The appellant was also ordered to pay $100 in compensation and was disqualified from holding or obtaining a driver’s licence for a period of 6 months. The appellant was present at the hearing in the Magistrates Court, but was unrepresented.

The matter came before King J, on 18 August 1997.  His Honour adjourned the matter to enable a report to be obtained from the Magistrate relating to the opportunity, if any, given to the appellant to make submissions on the question of licence disqualification.

That report has now been obtained.  The circumstances of the offence are these.  The victim was driving her motor car north along Bridge Road at Para Hills.  She was involved in an incident with the appellant.  He says that she braked suddenly nearly causing a collision.  This annoyed the appellant.  The vehicles were stationary shortly after this incident at traffic lights.  The appellant got out of his utility and, in the course of this, the driver’s door of his car banged against the rear passenger door of the victim’s car.  He then had words with the victim and her passenger and, when he got back into his car, he again banged the door of his car against the victim’s car.  It is alleged that there were a total of 3 contacts between the door of the appellant’s car and the victim’s car.  This resulted in property damage to the extent of about $100.

The appellant complains on two grounds

First, that the Magistrate erred by disqualifying him from holding a licence, without informing him of the court’s power to do so and without inviting him to make submissions on the matter.  The learned Magistrate did not specify the statutory power under which he disqualified the appellant.

Section 168 (1)(b) of the Road Traffic Act provides relevantly that where a person is convicted of any offence in the commission of which a motor vehicle is used, or the commission of which is facilitated by the use of a motor vehicle, the court may order disqualification for the periods and on the conditions specified.

That appears to be the power under which the Magistrate acted. This is a wide discretionary power to be exercised in the light of all relevant circumstances.  At first I had some doubt about whether the case fell within s168 (1)(b) at all.  The appellant caused the door of his car to bang against the victim’s car.  He clearly did so deliberately or recklessly. In one sense, he used his motor vehicle in the commission of the offence, because the door of his car was the instrument used to cause damage.  It could be said, however, that this was an accidental or incidental feature of the offence, that the door was simply an object in his hand that he used to cause damage.  However, on reflection, I think that the distinction is too subtle and that it is sufficient that his vehicle provided the object that he used to commit the offence.
I turn now to the question of the warning.
The appellant contends that, in every case where the court is contemplating disqualification under the provision, the court should inform the defendant that it has power to disqualify and ask the defendant if there is anything that he or she wishes to say.
The appellant relies upon two cases. They are Wyngaarden v Samuels (1973) 4 SASR 420 and Hanley v Steel (1973) 5 SASR 242.
Those cases do hold that a disqualification order should not be made under s168, without giving a warning of the possibility that such an order might be made, nor made without giving the defendant an opportunity to make submissions.
I agree that such a warning should be given.  The power to disqualify is not part of the penalty for the substantive offence, and the possibility of its use might not be anticipated by an offender.  These considerations apply with particular force to an unrepresented offender.  This approach reflects the fact that disqualification has the capacity to adversely impact on a person’s livelihood and that, before such an order is made, the defendant ought to be given the chance to be heard on that matter.  Once again, this is particularly so, when the defendant is unrepresented, as was the case here.
There is nothing to indicate that the Magistrate did inform the appellant of his power to disqualify, or to indicate that the Magistrate gave him the opportunity to make submissions on the subject.  In his report to this court, the Magistrate says that he does not have any recollection of whether or not the appellant had an opportunity to make submissions on the question of licence disqualification. The Magistrate’s notes, which have been provided to me, do not suggest that any submission was made on the point.  The Magistrate does not say that it was his usual practice to invite submissions.  The appellant does not say specifically that he was not called upon to make submissions, but he has sworn that he was unaware that his licence might be suspended.  I consider that there is a real likelihood that the licence suspension was imposed without any warning and that, in the interests of justice, I should set aside the suspension and consider the matter afresh.  Counsel for the respondent did not oppose me taking this course of action.  That being so, it is for me to exercise the sentencing discretion afresh with respect to this matter.  I will return to this aspect of the matter in a moment.
I turn now to the other ground of appeal, which related to the suspended sentence of imprisonment.
The maximum penalty for this offence is 2 years’ imprisonment. The Magistrate considered that Parliament and the community expect a stern response to what he described as "road rage".  I agree that, in cases such as this, where the conduct involves a loss of temper in the course of driving, the need for general deterrence necessitates a stern response.  A clear message needs to be given to the community that frustration on the road is not to be translated into violence.  Especially is this so in cases such as the instant one, where the appellant acknowledges he struck the car, not once, but on 2 or 3 occasions.  The offence was committed in circumstances such that the Magistrate was entitled to consider imprisonment as an option. The Magistrate appears to have attached some weight to the appellant’s prior record.  He has a very bad criminal record. It reflects a flagrant disregard for the law spanning a considerable period of time.  It extends from 1980, as a juvenile, to 1995.  It includes driving offences, minor drug offences, dishonesty offences and offences involving violence.  The appellant has been given plenty of chances to reform.  He has been in prison before. 
As the High Court pointed out in R v Veen (No.2) 164 CLR 465, the antecedent criminal history of an offender is a factor which may be taken into account when determining the appropriate sentence. It may not be given such weight as to lead to the imposition of a sentence, which is wholly disproportionate to the gravity of the instant offence. To do that would, in effect, be to impose a fresh penalty for past offences, thereby disregarding an axiom of sentencing law, the principle of proportionality. However, the High Court also made it clear that prior criminal record is relevant to show whether the instant offence constitutes an uncharacteristic aberration or, on the other hand, is part of a continuing disobedience of the law. In the latter case, the need for deterrence, both specific and general, and consideration of the protection of society may all indicate that a sterner response is called for. In the present case, in light of the appellant’s lamentable record, one can only conclude that his conduct evidences a continuing disregard for the law. Accordingly, considerable weight was rightly attached, by the Magistrate, to considerations of personal deterrence. There is no scope at all for leniency on the basis of past good character. I consider that the sentence is not at all excessive for the offence. As there are no mitigating circumstances that support its reduction, in my opinion, it was overall an appropriate sentence. In saying that, I have not overlooked the plea of guilty. Accordingly, putting to one side the licence disqualification, I do not consider that the sentence imposed was in any sense outside the appropriate range for a case such as this.
The appellant has further complained that a bond for a period of 2 years was not warranted.  I do not accept that submission. The Magistrate obviously considered it was appropriate to give the appellant a last chance.  I consider that the appellant was very fortunate in this respect, that is, to get a suspended sentence, considering his record.  In my opinion, if a bond was to be imposed, a lengthy bond was appropriate. It is up to the appellant to demonstrate, by complying with the bond, that the leniency extended to him was warranted.  In my opinion, it was open to the Magistrate to reach the conclusion that he reached.
The order of the Magistrate disqualifying the appellant from holding a driver’s licence is part of the overall penalty or punishment.  It may be considered in determining whether the total sentence was manifestly excessive.  The appellant argues that, having imposed a suspended sentence of imprisonment and a lengthy bond to be of good behaviour, a driver’s licence disqualification was inappropriate. Given my earlier conclusion that the Magistrate may have erred in failing to give a warning, it is appropriate for me to decide the question of licence disqualification myself.
The appellant is 30 years of age, single and unemployed. He owns about 80 acres of property near Morgan.  In his affidavit he says that he needs his driver’s licence to travel to and from his property on a weekly basis to check and maintain the property.  He also needs the licence in connection with a wood selling business that he conducts on apparently a part-time basis.  It cannot be said that the appellant is totally dependent on his car.  On the other hand, disqualification will no doubt cause him considerable inconvenience, because of the need to travel to the property. It must also interfere with his wood selling business.
Even if the appellant’s personal circumstances were the only consideration, I would still order disqualification. But I also take into account the fact that, in the words of the Magistrate, this was a case of road rage, in which the appellant used his car as a device to effect his frustration. Under all the circumstances, I have come to the conclusion that it was appropriate to impose a period of licence disqualification but, in my opinion, and in the exercise of my own sentencing discretion, I would impose a licence disqualification for a shorter period than was imposed.
In my opinion, an order disqualifying the appellant from holding or obtaining a driver’s licence for a period of 3 months, from 2 July 1997, will be a sufficient further punishment and provide adequate protection for the public. That suspension will also serve as a warning to the appellant about his behaviour on the road.
Accordingly, the appeal will be allowed; the order disqualifying the appellant from holding or obtaining a driver’s licence for a period of 6 months is varied to provide for a period of disqualification of 3 months, from 2 July 1997.
The sentence of the Magistrate’s Court is otherwise confirmed.
Under the circumstances, there will be no order as to the costs of the appeal.