Rogers v Police No. Scgrg-98-1122 Judgment No. S6856

[1998] SASC 6856

ROGERS v POLICE
[1998] SASC 6856

Magistrates Appeal

Perry J (ex tempore)

1     The appellant appeals against the sentence imposed following his plea of guilty to charges of driving under the influence and driving without a licence, both offences arising from the same passage of driving which occurred on 18 April 1998 at Loxton. 

2     Upon his plea of guilty to those two counts, a charge that the appellant drove with the prescribed concentration of alcohol, namely, .169 grams in 100 millilitres of blood, was withdrawn.

3 Exercising his power under s18A of the Criminal Law Sentencing Act 1988, the learned sentencing magistrate imposed one penalty, namely, two months imprisonment.

4     The appellant appeared unrepresented in the Magistrates Court, although the matter had been adjourned on at least one occasion for him to seek legal advice. 

5     I have had the benefit of an affidavit from Miss Bristow, the police prosecutor, which summarised the facts which she narrated to the court.  It appears from that affidavit that the appellant was the driver of a Mazda utility which at about 12.05 am on the morning in question was involved in a collision at the intersection of two Streets at Loxton.

6     Police attended at the scene and had a conversation with the appellant.  During that conversation, the police officers detected a strong smell of liquor and observed that the appellant was unsteady on his feet and slightly unbalanced.  His speech was slow and slurred.  His face was flushed and his eyes were bloodshot. 

7     The appellant was polite and cooperative with the police.  He admitted to the police that he was the driver of the Mazda and that he was not the holder of a current driver's licence and, indeed, never had been.  He further admitted that he had been drinking beer by the pint at the Loxton Hotel up to the time when he left, which was just before closing time.

8     The appellant said that he was driving home through back roads as he knew that he had been drinking.   He said that he had not seen the other vehicle until he collided with it.  It appears likely that he failed to give right of way to the other vehicle.  I have been informed that there was relatively minor property damage as a result of the collision, but no personal injuries. 

9     The appellant who is a 51 year old divorced man, has no prior convictions of any consequence. 

10   When sentencing the appellant, the learned magistrate said:

“You failed to yield right of way to another motorist.   You were described by police as being ‘moderately to badly’ - a mere technicality description - affected by alcohol.  You have never held a driver's licence.  This is the type of driving which deserves great condemnation..”

11   After pronouncing the sentence of imprisonment, the learned magistrate proceeded to say:

“The sentence will be carried into effect immediately.  There is no basis, in my opinion, for it to be suspended.  People such as you who drive deliberately and place others at serious risk of injury must be deterred.”

12   As well as imposing the sentence of two months imprisonment the learned magistrate also imposed a licence disqualification for a period of two years. 

13   In his Notice of Appeal, the appellant complains that the sentence was manifestly excessive and that the learned sentencing magistrate erred in not suspending the sentence.

14   It is not entirely clear to me from the record, such as it is that has been placed before me, that the learned sentencing magistrate fully explained to the appellant that he had in mind imposing a sentence of imprisonment, and that he clearly afforded to the appellant an opportunity to make submissions which might have been relevant to the exercise of the discretion to suspend.  On the other hand, the magistrate was an experienced magistrate, and I have no reason to suppose that he did not attempt to make the position clear to the appellant before imposing a sentence under appeal.

15   I have been informed by Mr Boucaut, who appeared for the appellant before me, that the appellant left school at the age of 13 years, after which he has survived on itinerant work of a labouring kind in the country.  It is clear that he is not particularly literate, which partially explains his failure ever to obtain a driver's licence, although I understand at one stage he obtained a licence to drive a forklift.  It appears that he has been living in the Riverland for about two years on seasonal fruit picking work. 

16   The appellant was held in custody for 18 days before obtaining bail after lodging his Notice of Appeal.  He lives in rented premises and is very much behind in his rent.  For that reason, he is anxious to obtain work, which I understand, is available for him to go to.

17   Just how much of that background was explained to the learned sentencing magistrate is, as I have said, not clear from the record. 

18   In the first place, in my view, the sentence of two months imprisonment, whether suspended or not, was a substantial, if not, a severe penalty. It goes without saying that a custodial sentence of imprisonment is a sentence of last resort.  For driving under the influence, the penalty prescribed in the Road Traffic Act 1961 is a fine of not less than $700 and not more than $1200, or imprisonment for not more than three months together with a mandatory licence suspension of not less than 12 months.

19   For driving without a licence, the penalty is a monetary penalty only, namely, a maximum fine of $1250.

20   I have been informed that the appellant owns the vehicle which he was driving at the time.  I think it unfortunate that he owns a vehicle without being in possession of a licence to drive, it as this must place him under a strong temptation to drive, as he did on the night in question. 

21 Be that as it may, in my opinion, the background and circumstances of the appellant, including his previous good record and his age, and the circumstances of the offending, constitute good reason within the meaning of s38 of the Criminal Law (Sentencing) Act 1988 to suspend the sentence of imprisonment.

22   Of course, the fact that this court entertains a different view as to the appropriate penalty, is not sufficient to justify the allowance of the appeal.  But I am satisfied that, for one reason or another, either the appellant's circumstances and background were not made clear to the court due to him being unrepresented and due to his educational limitations, or they were not given sufficient weight.  In either case, this is indicative of error on the part of the learned sentencing magistrate.

23   In the end result, therefore, I think it is proper to allow the appeal for the purpose of suspending the order of imprisonment. 

24   Mr Boucaut quite properly drew attention to the fact that the appellant spent 18 days in custody and it would be fair to give credit to that.  There is also the fact that two months imprisonment is, in any event, a substantial and, as I have said, severe penalty.

25   However, it seems to me that the appellant was foolhardy to drive after all those years without having a licence and when he knew that he was not entitled to do so.  It seems to me that he must learn to keep off the road.  In those circumstances, I think it not inappropriate to leave in place the sentence of two months, but to suspend it.

26   The appeal is allowed for the purpose of varying the sentence to provide that it be suspended upon entry by the appellant into a bond, to be of good behaviour for two years from today in the sum of $1000.00, in the usual terms.

27   (After hearing counsel as to special conditions)  There will be a further condition that, within a period of one month from today, the appellant dispose of the vehicle by sale or otherwise, and that during the period of the bond he not be the owner of any other vehicle.

28   In all other respects, the orders under appeal, including the licence disqualification, dating from the date upon which the appellant was sentenced in the court below, remain in full force and effect.

29   (After hearing the parties as to costs)         I order that the respondent pay the appellant's costs of and incidental to the appeal which I fix at $150 plus the filing fee attached to the Notice of Appeal.  

30   (After a bond had been prepared) 

HIS HONOUR:          I want you to sign this bond.  Have you had a chance to explain it to him, Mr Boucaut? 

MR BOUCAUT:         Yes. 
HIS HONOUR:  It has been explained by your counsel, Mr Boucaut, do you understand that once you have signed the bond, you will no longer be liable to go to gaol, just at the moment, and the prison term for two months will be suspended.  But that is on condition that during a period of the bond, which is two years, you are of good behaviour and that you otherwise satisfy the conditions of the bond which will be that you be under the supervision of a probation officer and that you get rid of this vehicle within a month of today and not own any other vehicle.  Are you happy to agree with those conditions?

APPELLANT:    Yes. 
HIS HONOUR:  Do you understand that by breaking the bond, by committing any offence at all, or by breaching the conditions that I have mentioned, you are liable to be imprisoned for two months. 

APPELLANT:    Yes. 
HIS HONOUR:  So that you have to keep out of trouble and comply with the bond in all respects for the period of two years otherwise that is what is likely to happen to you.  Do you fully understand that?

APPELLANT:    Yes.