Scholes v Police - [2005] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHOLES v POLICE
Judgment of The Honourable Justice Anderson
8 April 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Appellant pleaded guilty to driving under the influence and driving whilst disqualified - the driving while disqualified was a first offence of that type - Magistrate sentenced the appellant to three months imprisonment to be suspended on entering into a bond in relation to the driving whilst disqualified - appellant argues sentence was manifestly excessive - failure by the Magistrate to make any specific finding about whether the driving was 'contumacious' - appellant a diability pensioner who suffers from major depression - held: appeal allowed - driving not contumacious - sentence manifestly excessive - sentence of suspended imprisonment quashed - appellant to re-enter a good behaviour bond for two years, three months and two weeks - appellant to perform sixty hours of community service over six months.
Criminal Law (Sentencing) Act 1988 s38, s39(1); Motor Vehicle Act 1959 s91(5), referred to.
White v Police (2000) 76 SASR 430, applied.
Police v Cadd (1997) 69 SASR 150; Rhodes v Police [1999] SASC 191; R v Morse (1979) 23 SASR 98, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"contumacious"

SCHOLES v POLICE
[2005] SASC 116
Magistrates Appeal

ANDERSON J By an amended notice of appeal, the appellant appeals against an order of a Magistrate made on 22 December 2004. The appeal relates solely to penalty. The appellant also seeks an extension of time. The respondent put nothing against this request and accordingly I allow the extension.
The appellant pleaded guilty to two counts relating to his driving on 3 September 2004 at Maitland. The first count was driving under the influence, and he was fined $1,500 plus costs. In addition he was disqualified from holding or obtaining a driving licence for a period of three years to commence on 25 February 2006. That order was made in error because the Magistrate was informed incorrectly that there was an existing three-year suspension, whereas in fact the existing suspension was until further order.
The second count of driving with a prescribed concentration of alcohol in excess of 0.05 was withdrawn upon the plea being entered to the first count.
On the third count, the appellant pleaded guilty to driving under disqualification contrary to s91(5) of the Motor Vehicle Act 1959 (SA) and was convicted and sentenced to a term of three months imprisonment which term of imprisonment was suspended upon the appellant entering into a bond to be of good behaviour for three years.
The matter was dealt with by the learned Magistrate with ex tempore reasons which unfortunately are very brief and fail to assist with the process by which the Magistrate came to the conclusion that it was necessary to impose a term of imprisonment.
Because of the brevity of the reasons, I will set them out in full hereunder:
“1     I take all of those matters into account.
2      Clearly this is an extremely serious incident of offending given your blood alcohol reading, your manner of driving and the time of day in which you were doing so. Ordinarily, in circumstances such as this a period of imprisonment would be an immediate consequence. However, I cannot ignore the very serious medical problems which you have. On this instance, I stress on this instance, I am prepared to take them into account when suspending the period of imprisonment which I will impose.
3      Be under no illusion. If you were to commit further offences you will go to gaol.
4      On Count 1, driving under the influence, you are convicted and I impose a fine of $1,500, with costs. You are disqualified from holding or obtaining a drivers licence for a period of 3 years, to commence from 12.01 a.m. on 25/02/06.
5      (Count 2 is withdrawn on application of Prosecution.)
6      On Count 3, driving under disqualification, you are convicted and sentenced to a term of 3 months imprisonment. That imprisonment term is suspended upon you entering into a $100 bond, to be of good behaviour for 3 years. The conditions are that you be of good behaviour and comply with all of the conditions of this bond; that you come up for sentence if called upon; that you be under the supervision of an Officer from the Department for Correctional Services and obey all reasonable directions in relation to counselling and/or treatment for alcohol and drug-related problems and any other problems, including psychiatric problems which are identified and require to be addressed. You are to report to the Elizabeth Office of the Department for Correctional Services within 2 working days.”
The grounds of appeal, as amended, are first that the sentence imposed was manifestly excessive, and secondly that the sentencing process was so marked by errors as to have caused the sentencing process to miscarry. It is true that there were errors, but in the event that I have decided that the sentence was manifestly excessive, it is not necessary to deal with those errors in any detail. I will mention them briefly. They include the fact that the Magistrate did not impose the monetary fine in the presence of the appellant or his legal advisor, but added that administratively after delivering his reasons. Likewise, the bond was made in respect of a “good behaviour” set of conditions under s39(1) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) whereas it should have been under s38 because it was a suspended sentence bond. As I have indicated, I do not consider these matters of importance in the context of resolving this matter.
It was argued by the appellant that if the learned Magistrate sentenced in relation to the charge of driving whilst disqualified on the basis that the offending was contumacious, then that was wrong on the facts of the case. If, on the other hand, he did not sentence on the basis that the offending was contumacious, then in all the circumstances it was manifestly excessive.
The circumstances surrounding the incident are not referred to by the learned Magistrate other than the brief reference in paragraph 2 of his reasons set out earlier. The affidavit filed by the Police Prosecutor indicates that the Magistrate was informed that at about 9 am on Friday, 3 September 2004, police attended at Robert Street in Maitland as a result of information they had received that a red Holden Commodore was driving along the wrong side of the road with a flat tyre. The police observed the defendant getting out of his vehicle, and saw that he was unsteady on his feet, swaying from side to side, and taking some time to step up onto the footpath. The police approached the defendant and smelt a strong smell of liquor on his breath, saw that he had red eyes, and when they spoke with him his speech was very slurred.
After inquiries were made, it was revealed that his driver’s licence had been cancelled from 26 February 2003. The Police Prosecutor informed the Magistrate that it was a disqualification for three years. As it turned out, that was incorrect information because the licence had been cancelled until further notice.
The Magistrate was informed that the appellant had previous convictions for driving under the influence on 19 September 2002 and 23 October 2000.
The submissions made to the Magistrate on behalf of the appellant are contained in an affidavit filed by his solicitor, Ms Hammett. At the time the submissions were made, the appellant was a 49-year old married man, residing in Maitland on the Yorke Peninsula. He was married to his wife in the year 2000, and although each has adult children, there are no children of this marriage. Both Mr Scholes and his wife are disability pensioners in receipt of Centrelink benefits. Mr Scholes suffers from a major depression, and Mrs Scholes suffers long-term and chronic psychiatric illness and a thyroid condition. They both receive regular medical treatment. Letters regarding Mr and Mrs Scholes’ conditions were tendered by consent before the Magistrate.
The appellant has been suffering depression for approximately 10 years, and was able to continue working, despite his depression, through treatment and medication. By trade he is a ceiling fixer. He ceased work approximately 18 months ago when the depressive condition worsened, and he has not worked since that time. He has a history of excess consumption of alcohol, and has suffered liver damage as a result. In the past, his drinking has led to driving under the influence convictions.
Both Mr and Mrs Scholes are apparently well-known to the local police because Mrs Scholes frequently calls them when arguments arise between she and her husband. They are an isolated couple with no friends or family. They see a Drug and Alcohol Council nurse, and also a local mental health services nurse on a regular basis.
Significantly, on the day of the offending, it was Mrs Scholes who telephoned the police to advise them that her husband was drunk and was driving the car. The car in fact had a flat tyre and a damaged rim, and could not be properly driven.
Following this incident, Mr Scholes, just before his court appearance, suffered two grand mal seizures, and was admitted to the Maitland Hospital for treatment. He is presently prescribed various drugs for his physical conditions, and has been undergoing tests to see if there is an organic cause for his seizures.
The difficulty with the brief reasons of the Magistrate is that he makes no finding as to whether the conduct of the appellant on the occasion in question was contumacious and does not even discuss the matter.
In Police v Cadd (1997) 69 SASR 150, Mullighan J at 179 referred to the word ‘contumacious’. His Honour said:
“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 White v Police (2000) 76 SASR 430, Mullighan J was dealing with a driver who told the police that he had consumed one or two drinks with friends, but that he had driven because he and his friends wanted to get some breakfast, and he was in a better condition than his friends. They went to a McDonalds restaurant less than a kilometre away. The learned Judge says at [8]:
“He gave no thought to the licence disqualification. He acknowledged that his driving was stupid and it was submitted that he would not have done so if he had been sober.”
Further in those reasons, his Honour said at [15]:
“I do not think imprisonment was justified for the offence of driving disqualified. It was put to the learned magistrate in the course of submissions that the appellant gave no thought to the licence disqualification. The learned magistrate did not reject that submission. He did not find that the offending was contumacious … I do not think it was contumacious. It was foolish and unthinking. It was not defiant or intentionally disobedient.”
In another matter, Nyland J in Rhodes v Police [1999] SASC 191, was dealing with an appellant who drove whilst disqualified to pick up a computer which the appellant thought his wife needed urgently. Her Honour said at [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.”
Adopting the words of Mullighan J in White, it is my view that the conduct of the appellant in this matter was “foolish and unthinking. It was not defiant or intentionally disobedient”.
If the Magistrate was dealing with the matter on the basis that the conduct was contumacious, I disagree with him. If he was not dealing with it on the basis that it was contumacious, then in my opinion, the penalty is manifestly excessive.
In relation to penalty, considerable guidance is afforded by the decision in R v Morse (1979) 23 SASR 98 where at 99 King CJ stated:
“This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.”
The Full Court in Police v Cadd has made it clear that the offence of driving whilst disqualified is one which does warrant imprisonment, even by a first offender, if the offending is found to be contumacious. Both of the decisions in Morse and Cadd emphasise the importance of severe penalties being imposed in the case of contumacious offending.
The maximum penalty for the offence is six months imprisonment. The appellant pleaded guilty at an early stage, and assuming that he was given a discount for his guilty plea of something in the order of 20 to 25 percent, then clearly, before reduction, the period of imprisonment would be about four months. Given my conclusion that the driving in the circumstances of this case did not amount to contumacious offending, I think that is excessive. I think that this is a case where there are so many personal problems, both physical and mental, which are suffered by the appellant, that his rehabilitation is better served without a suspended sentence hanging over his head. I bear in mind particularly the fact that he has suffered from the grand mal seizures, apparently contributed to by the stress of these proceedings.
As indicated, the defendant should have entered into a suspended sentence bond pursuant to s38 of the Sentencing Act, however as I am revoking the order for a suspended sentence, I think the appropriate bond is that which was actually entered into by mistake, namely, a good behaviour bond under s39(1) of the Sentencing Act. I would require the appellant to re-enter the bond, and I would also require him to perform some community service. I think that should be an important part of his rehabilitation. I order that the appellant provide 60 hours community service over a period of six months.
The orders therefore are that the appeal is allowed, that the suspended sentence is revoked and in lieu thereof I order that the appellant perform 60 hours community service within a period of six months commencing from today. In all other respects the orders of the learned Magistrate remain the same.
.