Riley v Police No. Scgrg-98-1271 Judgment No. S21

[1999] SASC 21

RILEY v POLICE
[1999] SASC 21

Magistrates Appeal

1. WICKS J This is an appeal against the sentence imposed by a Magistrate upon the appellant for driving whilst disqualified from holding or obtaining a licence contrary to s91(5) of the Motor Vehicles Act 1959. The facts surrounding the offence are as follows

2. On 26 January 1998 the appellant and five friends drove in one car to Snowden’s beach to watch the Sky Show fireworks display.  During the display a good deal of alcohol was consumed and upon its completion a woman named Kathy agreed to drive them all home.  The appellant submitted that Kathy was the designated driver for the evening.  However, the learned Magistrate found that Kathy only drove as far as an unnamed dirt road, at which point the appellant assumed control of the car.  The appellant’s explanation for this was that Kathy was unfamiliar with both the car and the land and did not wish to drive along the dirt road.

3. After having driven some distance along the dirt road the appellant saw a police car on the bitumen road ahead.  With some 30 meters remaining on the dirt road before reaching the bitumen road the appellant pulled over to the left hand side and switched off his headlights. 

4. The police then approached the vehicle and spoke with the appellant.  They noticed that his eyes were bloodshot, glassy and watery, his face was flushed and his speech was slurred.  They also detected a strong smell of liquor.  When questioned, the appellant told the police that his name was Harold Eldridge and that he held a current driver’s licence.  The police then asked the appellant to step out of the car whereupon they observed him place both hands behind his back and sway in a circular motion.  After conducting a licence check via radio for the name Harold Eldridge the police asked the appellant to accompany them to the police station in order to conduct a breath analysis test.

5. The Police, via police communications, established that the appellant’s name was Harold James Riley and that he was disqualified from holding or obtaining a driver’s licence.  At the police station, the breath analysis test revealed a blood alcohol level of 0.197 grams per 100 millilitres of blood.  The appellant was then charged with driving under the influence of alcohol, driving whilst disqualified and failing to answer truthfully when questioned by the police.

6. At trial there was a question as to whether the unnamed dirt road, which was the subject of the charges, was in fact a road.  On 3 August 1998 the learned Magistrate attended a view of the road in question and delivered an ex tempore judgement the following day. The learned Magistrate found beyond reasonable doubt that the unnamed dirt road was a road within the meaning of s5 of the Road Traffic Act 1961. He then proceeded to convict the appellant of:

.driving under the influence of alcohol.  The appellant was fined $1500 and disqualified from driving until further order; and

.driving whilst disqualified.  For this offence the appellant was sentenced to seven days imprisonment.

1. It appears that the charge of failing to answer truthfully when questioned by police was adjourned to a future date and is not the subject of this appeal.

2. The Notice of Appeal refers to an appeal against both conviction and sentence.  However, the appeal against conviction was abandoned at the hearing before me.  Consequently the grounds of appeal are limited to the appeal against sentence.  Specifically the appellant appeals against, not the length of the sentence, but against the learned Magistrate’s refusal to suspend it.  In support of his argument that the sentence should be suspended the appellant submitted:

3. that the learned Magistrate erred in finding that the offending was contumacious; or alternatively

1. that the potential effect of a term of imprisonment upon three members of the appellant’s family for whom he provides care is such as to warrant suspension of the term of imprisonment.

1. An appellate court, on an appeal against sentence, may only interfere when there has been a miscarriage of the sentencing discretion.  In the ordinary case of a first time contumacious offender the punishment must be imprisonment for one month, “but the circumstances of the offending or the offender or both may dictate some less severe form of punishment”: Police v Cadd & Ors (1997) 69 SASR 150 per Doyle CJ at p171. Counsel for the appellant submitted that the offending in this case was foolish but not contumacious and the fact that Kathy was appointed as the designated driver shows that the appellant did not drive with total disregard for the order of the court.

2. Lander J observed at p4 in Johns v Police (Jt No S6729, 24 June 1998, unreported) that:

   "         The difficulty is deciding whether the circumstances of the offence are such as to exhibit contumacy.  Because the offence always requires a wilful disobedience of the order for suspension, it is difficult to determine the line between a wilful disobedience and a contumacious breach of the order.

   I suppose in nearly all cases a second offence would demonstrate the degree of defiance necessary to make out a contumacious breach.  However even with a subsequent offender driving in the case of a real emergency or in circumstances of duress may not indicate a contumacious breach."

1. The learned Magistrate, applying Police v Cadd (supra) and Harshazi v Police (Mullighan J, Jt No S6663, 1 May 1998, unreported), found that the offending in this case was contumacious.  His Honour disbelieved the appellant’s explanation of the circumstances of the offence, stating in his remarks as to penalty, at p5:

   "I find that all the witnesses have subsequently discussed the issues of the subject road being a road within the meaning of the Road Traffic Act and the Motor Vehicles Act since the night in question and that the subject matter was not one considered at all on the night. I find that the intensity of the discussion increased between the morning’s evidence and the period immediately after morning break. I specifically disbelieve each witness’ evidence suggesting that each addressed their respective minds to anything more than that the defendant would drive over the known short cut and would cease driving before entering the sealed roads of Taperoo. I specifically disbelieve Beams[’] suggestion he did not know the defendant was legally unable to drive. All knew that fact and all knew the defendant should not be driving having regard to the alcohol consumed and the fact that he was legally unable to drive, the very reason Chiew was driving initially. The defendant drove away from the area earlier referred to turning west over a track commonly used by fishers’ vehicles and trail bikes in the day time and turned north up the subject road used similarly, as well by pedestrians for a variety of reasons.

   I specifically find the defendant knew he should not have been driving for at least two reasons, his intoxication and his disqualification, and I specifically find he did not address his mind to the legality of driving upon the subject road, an area he knew to be used commonly by all sorts of road users, but uncommonly at night.  I find that having taken the risk of driving by means of the short cut the defendant had little fear of detection.  However his worst fears were realised upon sighting police travelling at a greater speed along Mersey Road parallel to the found road alongside the railway tracks.  That car pulled into the Penrice sealed access road, north, and parallel to the sealed Willochra Street.  It stopped upon the bitumen there.  The defendant endeavoured to escape detection by stopping his vehicle and turned his lights out."

1. After setting out the relevant principles from Police v Cadd (supra) and s10 and s11 of the Criminal Law (Sentencing) Act 1988 the learned Magistrate continues, at p8:

   "In my view, the defendant’s drive was contumacious:

   a)..... The defendant has a character stained by earlier offending albeit in 1986 or earlier.  He is not here to be dealt with again for that but he certainly is not a first offender, McInerney.

   b)..... the defendant well knew he should not have been driving both for reasons of intoxication and disqualification,

   c)..... the defendant took the risk to drive over a short distance of some 1300 yards or so believing he would not be detected,

   d)..... the defendant could easily have avoided the subject offending by permitting Chiew [Kathy] to drive over a slightly longer and less adventurous route

   e)..... the defendant was only a short way into a disqualification period imposed by a Court at which the defendant was warned specifically about the consequences of driving disqualified."

1. Counsel for the appellant has put nothing before me which would justify my interference with the above findings of the learned Magistrate which are based on His Honour’s observations of the witnesses in the witness box.  Consequently, I must uphold the learned Magistrate’s finding that the offending in this case was contumacious.

2. I turn now to the alternative submission of the appellant that even if the offending was contumacious, the potential effect of a period of imprisonment on members of the appellant’s family who rely on him to care for them warrants suspension of the period of imprisonment. 

3. The appellant is 35 years of age.  From the age of 15 he worked intermittently as a presser for a dry cleaner, a factory hand and a dye cast operator with ROH Alloy Wheels until he suffered a back injury which has prevented him from obtaining further employment.  He is now on a disability support pension.  He lives with his mother, her partner and his uncle providing care for all three, each of whom suffers from illness.  His mother suffers from Pagets disease and emphysema, his uncle suffers from a disease akin to Alzheimers and his mother’s partner is recovering from his second triple bypass operation.  The appellant submits that he is the only family member who can provide to them the care which they require and they cannot afford to pay for professional care.  He is afraid that if something happens to one of them while he is in prison there will be no one around to help them.  These matters were put before the learned Magistrate and counsel for the appellant submitted that any sentence of imprisonment should be suspended.  When sentencing the appellant the learned Magistrate said, at p8:

   "The prosecution submitted that [an] unsuspended gaol term is appropriate but also submitted that the term should be short having regard to the circumstances of the offence.  Taking into account the defence submissions I agree.”

1. His Honour then proceeded to sentence the appellant to seven days’ imprisonment.

2. Counsel for the respondent submitted that the learned Magistrate extended leniency to the appellant in sentencing him to a mere seven days’ imprisonment.  It has been held that a period of seven days’ imprisonment is merely a token sentence: Theophilus v Police (Jt No S6521, 20 January 1998, unreported) where Olsson J held, at p5, that a term of seven days imprisonment was “a mere token sentence”: Police v Cadd (supra) where Doyle CJ held, at p170, that a sentence of seven days’ imprisonment for this offence was a token sentence.

3. In all but extreme cases the court is not to take into account the effect of a period of imprisonment upon the offender’s family: R v Wirth (1976) 14 SASR 291 at 294 per Bray CJ. This may be an extreme case, however, the period is short and it should be possible for interim arrangements to be made to tide the family over for a week. Local welfare officers may be able to assist. The appellant has a brother who would be expected to assist in maintaining his mother, her partner and the appellant’s uncle in the few days involved.

4. This may have been a case where the learned Magistrate could have exercised his discretion to suspend the sentence of imprisonment, but it was within his discretion not to do so.  His Honour has extended leniency to the appellant in imposing such a short term of imprisonment when it was open to him to impose a much longer term.  Consequently I dismiss the appeal.

5. I will suspend the operation of the order of dismissal for a period of seven days from the date hereof in order to assist the appellant with his domestic arrangements.