Rhodes v Police - [1999] SASC 191

RHODES v POLICE
[1999] SASC 191

Magistrates Appeal
Nyland J

This is an appeal against sentence. The appellant was charged on complaint with the offence of driving while disqualified from holding or obtaining a licence contrary to the provisions of s91 of the Motor Vehicles Act 1959. It was alleged that on 27 July 1998 at Modbury North, he drove his motor vehicle on Golden Grove Road and other roads while he was so disqualified.
On 18 February 1999 the appellant appeared before a stipendiary magistrate in the Magistrates Court at Holden Hill and pleaded guilty to the charge. He was represented by Ms Barnett. The appellant had been disqualified from holding or obtaining a driver’s licence for a period of three years commencing July 1996, as a result of a conviction for drink driving.
The circumstances in which the offence was committed are set out in the affidavit of Ms Barnett. The appellant had been offered a loan of a computer by a workmate. The arrangement for the workmate to deliver the computer to him had fallen through. At approximately 10 pm on the evening the offence was committed, the appellant received a phone call from his workmate informing him that due to a domestic dispute the computer would not be available unless it was picked up immediately. The computer was to be used by the appellant’s wife who had been unemployed for some time and had just been offered employment as a bookkeeper which required her to upgrade her computer/bookkeeping skills. The appellant’s wife was not at home on the evening in question. The appellant panicked at the thought of losing the opportunity to have the computer and was thereby prompted to make what he admitted was a foolish decision to drive.
As the appellant drove along Montague Road at Modbury a police vehicle conducting a routine check ascertained that the registered owner of the vehicle, that is the appellant, was disqualified from driving. As a result they stopped the appellant’s vehicle and had a conversation with him, following which he was reported for this offence. There was no suggestion that there was anything untoward in the appellant’s manner of driving on this occasion, nor that he had committed any other offence.
Ms Barnett made submissions as to the personal circumstances of the appellant and urged the magistrate not to impose a custodial sentence as the appellant’s offence had been a reaction to the situation rather than a wilful defiance of the court order. The magistrate, in his sentencing remarks, agreed with the description of the appellant’s driving as “foolish”, but went on to say:
“But it is a very wilful decision and in that circumstance I will conclude that your actions were contemptuous. You ought not be driving contrary to orders of disqualification.”
The magistrate then recorded a conviction and sentenced the appellant to be imprisoned for a period of 14 days, together with court costs and levies.
The approach to be applied to sentencing for offences…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] SASC 191
Decision Date: 14 May 1999

CaseChat Overview and Summary

Rhodes appealed against his sentence for driving while disqualified from holding or obtaining a licence. The appellant was found to be driving while disqualified from holding or obtaining a driver’s licence as a result of a conviction for drink driving. The appellant drove in order to pick up a computer for his wife who had recently been offered employment as a bookkeeper and needed to upgrade her computer/bookkeeping skills. The appellant had made prior arrangements for the computer to be delivered to him but this arrangement had fallen through. The appellant drove his vehicle on Golden Grove Road and other roads and was stopped by police who ascertained that he was disqualified from driving. The appellant pleaded guilty to the charge and the magistrate imposed a sentence of imprisonment for 14 days, together with court costs and levies. The magistrate described the appellant’s actions as “foolish”, “wilful” and “contemptuous” and imposed a custodial sentence. The appellant appealed against the sentence imposed by the magistrate. The appeal was heard by the Supreme Court. The court had to determine whether the appellant’s conduct amounted to contumacious driving while disqualified. The court found that the appellant’s conduct was wilful but not contumacious. The court found that the appellant’s conduct was influenced by the urgency of the situation but did not amount to an attitude of defiance in the face of a court order. The court found that the sentencing discretion miscarried and the appeal should be allowed. The court exercised its discretion to suspend the sentence of imprisonment on condition that the appellant enter into a bond in his own recognisance in the sum of $200 to be of good behaviour for a period of 12 months.

Orders