Rhodes v Police

[1999] SASC 191

RHODES  v  POLICE
[1999] SASC 191

Magistrates Appeal
Nyland J

1. 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.

2. 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. 

3. 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. 

4. 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. 

5. 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.”

6. 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. 

7. The approach to be applied to sentencing for offences of drive disqualified is now that set out in Police v Cadd (1997) 69 SASR 150. In that case, Mullighan J said (at 178-179):

   “I think there should be a standard ... given the seriousness of the offence and its apparent prevalence.

   That standard, accepting these matters and giving appropriate emphasis to general deterrence should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case.  I use the word ‘contumacious’ in the sense that it is understood in the law:  see Witham v Holloway (1995) 183 CLR 525 at 542-3. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in ss10 and 11 of the Criminal Law (Sentencing) Act and established sentencing principles are sufficient further guide to the sentencer. 

   If the circumstances dictate that the sentence must be imprisonment, the length of the term must also be determined by the circumstances of both the offence and the offender.  Also, it will then be necessary to consider suspending the sentence.  It is well accepted that a suspended sentence of imprisonment is nonetheless a sentence of imprisonment and is a very significant punishment:  Wood v Samuels (1974) 8 SASR 465 at 468 per Walters J and Elliott v Harris (No 2) (1976) 13 SASR 516 per Bray CJ at 527. Pursuant to s38 of the Act, the sentence of imprisonment may be suspended if the court ‘thinks that good reason exists for doing so’. Such reason may be found in the circumstances of the offence or the offender and Parliament has not laid down any particular matters which may agitate the exercise of the discretion to suspend. Nevertheless when exercising the discretion to suspend a sentence of imprisonment, the judges and magistrates must have regard to all the relevant matters and principles.”

8. Mr Mayne, who appeared for the appellant on the hearing of the appeal submitted that in this case the magistrate had fallen into error as he had not properly applied the approach set out in Cadd.  Although he described the appellant’s conduct as foolish, wilful, and contemptuous, he never referred to it as contumacious.  Mr Mayne further submitted that even if the magistrate’s finding that the conduct of the appellant was “contemptuous” was to be taken as including a finding that the conduct was contumacious, the appellant’s conduct should not have been so categorised.  Finally, even if the conduct could be described as contumacious, the magistrate had failed properly to consider all matters relevant to the offence and/or the appellant which would have entitled the magistrate to exercise his discretion to suspend the sentence of imprisonment that he imposed.

9. Mr Ahern, who appeared for the respondent, submitted that the learned magistrate had correctly approached his consideration of the matter.  He referred to a number of decisions of this court which do, however, indicate some difference of opinion between the judges of this court as to circumstances sufficient to establish contumacy.  Mr Ahern submitted that the weight of authority supported the view that contumacious driving while disqualified involved an offence which was not trivial and which involved a knowing, and in a sense, defiant breach of an order: see Valentincic v Police (Olsson J, 4 December 1997, SASC S6477, unreported).  He also referred to the decision of Perry J in Bates v Police (1997) 70 SASR 66, approved by Matheson J in Wood v Police (29 January 1998, SASC S6543, unreported), which indicated that it was 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.

10. In this case, the magistrate’s reasons for decision are relatively brief.  It is not completely clear as to just what he meant when he described the appellant’s actions as contemptuous as the mere fact of driving in the face of an order for disqualification amounts to contempt of a court order, which under the previous line of authorities, such as Coombe v Douris (1987) 47 SASR 324 would have required the imposition of an immediate custodial sentence.

11. I do not think, however, that the magistrate’s use of the word “contemptuous” necessarily means that he applied the wrong test.  I think one can infer from his comments overall that it was his intention to categorise the conduct of the appellant as having the quality of contumaciousness which required a custodial term to be served.  In my view, therefore, the significant issue that arises on this appeal is a consideration of whether the conduct of the appellant was such that it could be so categorised.

12. In support of his argument that the driving in this case was not contumacious, Mr Mayne referred to a number of decisions in which the courts had concluded that an immediate custodial sentence was unwarranted.  In Harshazi v Police (1998) 71 SASR 316, the defendant was a passenger in a vehicle and had driven while his friend consumed food. Mullighan J described his conduct as foolish but not contumacious. Mullighan J, in his reasons for decision in that case, after disagreeing with the observations of Perry J in Bates, went on to say (at 320):

    “The offending may not be contumacious even though the driving is over more than a short distance and in circumstances [which] do not involve an emergency or duress.  The present case is an example.  The offending was foolish, but not contumacious.”

    It did therefore not deserve imprisonment.

13. Likewise, in Theophilus v Police (Olsson J, 20 January 1998 SASC S6521, unreported)the offender had driven to work from the Clovercrest Hotel to a hotel in Light Square in the early hours of the morning for work purposes.  That, together with his personal circumstances, were not considered to be a contumacious breach.  Olsson J said (at p4):

    “True it was there was a deliberate breach of the suspension order in a non emergency situation.  On the other hand, the redeeming matters in mitigation were the appellant’s very limited antecedent record, the excellent employer references, the circumstances in which the offence came to be committed and the fact that it was of a ‘one off’ nature.  It was certainly unpremeditated and the product of some degree of panic induced by the employer’s unexpected requirement, coupled with the appellant’s previous experience of termination of his employment.”

14. In the present case, there is no doubt that the appellant’s decision to drive was wilful.  Objectively it could not be described as occurring in a situation of emergency or duress.  Subjectively, however, it is clear that the appellant was significantly influenced by what he perceived to be the urgency of the situation which led him to make his acknowledged foolish decision to drive.  I do not believe, however, that the appellant’s conduct amounted to an attitude of defiance in the face of a court order which would amount to contumacy.  The undisputed evidence before the court was that for over two years the appellant had a regime in place for others to drive him.  The appellant made full admissions to the police.  He pleaded guilty to the charge.  His good character was supported by a number of character references.  He had worked for the same employer for a period of 12 years and had worked his way up from being a mechanic to his present position of workshop manager supervising seven employee mechanics.  Notwithstanding his good work history, however, he was at risk of losing employment as a result of the order for imprisonment.

15. In my opinion, having regard to the circumstances of this offending, and all of the matters personal to the appellant, this was not a case which warranted the imposition of an immediate custodial sentence.  In my view, therefore, the sentencing discretion miscarried.  The appeal should be allowed and the sentencing discretion should be exercised afresh.  On the hearing of the appeal I was provided with an affidavit in the nature of fresh evidence as to certain matters which arose subsequent to the imposition of penalty, which dictate a merciful approach to the imposition of sentence.  In the event of the sentencing discretion being exercised afresh, Mr Ahern did not resist such an approach.

16. I therefore allow the appeal.  I do not propose to interfere with the custodial term imposed by the magistrate but I order that the sentence be suspended 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.