Theophilus v Police No. Scgrg-97-1696 Judgment No. S6521

[1998] SASC 6521

THEOPHILUS v POLICE

Magistrates Appeal
Olsson J

The appellant appeals against a custodial sentence imposed on him, on 11 December 1997, by a stipendiary magistrate.  He asserts that it is manifestly excessive and  that any custodial sentence imposed ought to have been suspended.

On the above date he pleaded guilty to a charge that, on 6 August 1997 at Northfield, he drove a motor vehicle while he was disqualified from holding or obtaining a licence.

The learned magistrate concluded, on the information placed before him, that “the offence was ... deliberate with no real excuse offered”.  He therefore imposed a sentence of 7 days’ imprisonment.  This was so, notwithstanding very positive character references supplied by his employment superiors.

The prosecutor informed the learned magistrate that, at about 1.55 am on 6 August 1997, police observed the appellant driving his Commodore sedan south along Hampstead Road Northfield.  They had occasion to stop the vehicle and speak with the appellant.  The latter admitted to them that he was driving whilst under disqualification.  At that time he merely stated that his reason for doing so was that he “just wanted to go for a drive”.

The court was also told that the appellant’s only previous convictions were a PCA offence (which had led to his disqualification) and exceeding the speed limit.  He otherwise had a good record.

Counsel for the appellant tendered two excellent employment character references to the learned magistrate.  He said that the appellant had been conscious of the disqualification order.  However, he had not told his employer of the disqualification.  It was necessary for him to travel from the Clovercrest Hotel to the Heritage Hotel in Light Square in the early hours of the morning for work purposes.  He elected to do so by driving his own car, in lieu of taking a taxi.  In the course of submissions as to penalty the learned magistrate was told:-

.the appellant was 22 years of age.  He was a single man, boarding with his parents.

.he has had stable employment in the hospitality industry since leaving school in year 11.  At the time of his appearance he was employed as an assistant manager at the Clovercrest Hotel.  In that capacity he was responsible for the day to day operations of the front bar.

.he has been offered the position of front bar manager as of March 1998.  [This apparently requires that he hold a gaming licence, which necessitates a police security check.  Actual service of a custodial sentence may well have the practical effect of denying him the proposed promotion.]

.the licensee of the Clovercrest Hotel unexpectedly required the appellant, on completion of his late shift at that hotel, to travel to the Heritage Hotel in the City as soon as possible after lock up.  There was no public transport operating at the time.  The licensee owned both hotels.  The Heritage Hotel remained open later than the Clovercrest Hotel and, for some reason, the appellant was urgently required to proceed into the city to supervise its lock up at a later hour.

.the appellant had been riding his bicycle to work.  He lived at Ingle Farm, not far distant.  He was afraid to tell his employer that he was under licence suspension and feared loss of his job if he did not comply with the urgent request to assist at the Heritage Hotel.

[This was particularly so as, I am told, he had been dismissed from his former employment when he had informed his then employer of his licence disqualification and the reason for it.]

.he panicked  when the request was made to him and, because, due to his then financial position, he could not afford a taxi, rode to his nearby home, got his car and drove to the Heritage Hotel.  He was, at the time, repaying a personal loan and this was placing him in a tight financial situation.

.this was the only occasion on which he had driven whilst under disqualification and he did not, at the time, fully appreciate the seriousness of his actions due to the pressure on him and his state of stress.

.he was fully co-operative with the police and caused no embarrassment  to other road users.

.since the offending the seriousness of his conduct has become apparent to him and the appellant is said to be remorseful.  His employer has been informed of the situation and arrangements made for him only to work at the Clovercrest Hotel.

.the appellant was under considerable stress at the time of the offence, due to the then recent termination of his engagement to marry, the death of his grandmother and the fact that his mother had been diagnosed with cancer.  This is said to have added to his inability to make a fully rational decision.

The learned magistrate said that the circumstances clearly called for imposition of a short period of imprisonment.  The only question was whether that sentence ought to be suspended.  Whilst he made due allowance for the general good character of the appellant, he felt that the deliberate nature of the conduct militated against suspension.

In Police v Cadd and Ors (1997) 192 LSJS 230 a specially constituted Full Court held that, in cases of this type, a custodial sentence and the requirement actually to serve it is not to be taken as being an almost inevitable consequence of conviction. On the other hand, it accepted that such a sentence will normally flow from conviction if the driving was “contumacious” in the relevant sense.

As I pointed out in Valentincic v Police (Olsson J, 4 December 1997, S6477, unreported), driving will be held to be contumacious where there has been a flagrant and wilful disobedience of an order of suspension, in the sense that a person deliberately drives a motor vehicle in circumstances which are more than trivial and which involve a knowing and, in a sense, defiant breach of the order.

Given that situation I adhere to the comments which I expressed in Valentincic in these terms:-

“... For present purposes, a critical consideration arising from Cadd is that which was discussed by Mullighan J in the course of his judgment.  What he said with regard to the approach to imposition of penalty and to potential suspension was this;  that there can be no basis, in principle, to set this type of offence apart from nearly all others, so that the fundamental principle of punishment, having to fit both the crime and the circumstances of the offender, is to be disregarded.  As he argued, the use of such a severe punishment as imprisonment, to the exclusion of all other sentencing options, in order to establish efficacy of a court order is wrong in principle.  I do not think that that is in conflict with anything else which fell from the other judges comprising that special Full Court.  I would personally associate myself with those sentiments.

The matter needs to be approached on the basis of the normal principles arising under the Criminal Law (Sentencing) Act 1988, bearing in mind, of course, the obvious policy of the Parliament in expressing the legislation related to offences of this type, in the manner in which it has.”

I therefore review the sentence on that basis of principle.

In so doing I must carefully bear in mind that I am being asked to interfere with the exercise, by a very experienced magistrate, of his sentencing discretion.  The approach proper to be adopted to such an exercise is that enunciated in House v The King (1936) 55 CLR 499.

As I reiterated in Laxton v Justice (1985) 38 SASR 376:-

“It is never enough that the appellant judge consider that, if he had been in the position of the primary tribunal, he would have adopted a different course.  If a sentencing outcome is to be interfered with it must appear that some error has been made in exercising the judicial discretion.  Before intervention is warranted it must be patent that the court of first instance has acted upon a wrong principle, has allowed extraneous or irrelevant matters to guide or affect it, has mistaken the facts or has not taken into account some material consideration.  In some cases it may not appear how the tribunal of first instance has reached the result embodied in the order sought to be impugned but, if upon the facts, it is plainly unreasonable, the appellate court may infer that, in some way, there has been a failure properly to exercise the judicial discretion.”

It must be said that, in the present case, the situation was not that of the typical defiant disregard of the order for disqualification.  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 unpremediated 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.

The learned magistrate pointed out that there was no suggestion that, in the instant case, actual service by the appellant of a short period of imprisonment would throw up the probability of dismissal from employment.

It is stating the obvious to say that offences of this type are both prevalent and often not easy to detect.  The factors of both personal and general deterrence must be given due weight.  A custodial sentence was plainly required.

Minds may reasonably differ in many cases as to whether or not, on a first offence of this type, a person of good general character ought to be required actually to serve a custodial sentence.  Nevertheless, it is undeniable that the public interest requires that sentences for driving whilst disqualified must render it plain that gratuitous flouting of orders cannot and will not be tolerated.  In that context the decision as to whether a custodial sentence ought to be suspended depends entirely on the particular facts before the court.

In the present case the issue was as to whether the learned magistrate gave adequate weight to the circumstances in which the offence came to be committed and the extent to which it could fairly be said that the breach by the appellant was truly contumacious, in the sense to which I have referred.

Despite what was said by the learned magistrate, it appears to me that, with respect, he seems, perhaps unconsciously, to have been driven to making what was an erroneous and impermissible compromise in his conclusion.  On the one hand, he was not prepared to suspend any custodial sentence.  On the other, he imposed a term of imprisonment which was no more than nominal.

It seems to me that, as a matter of common sense and logic, if an offence of drive disqualified is so serious and contumacious as to warrant imposition of a custodial sentence then, at the very least, a term of, or approaching, one month must be in consideration.  That conclusion is consistent with the reasoning in Police v Cadd (supra).

Indeed, bearing in mind the seriousness and likely practical consequences upon an offender of any sentence of imprisonment, the imposition of a term of 7 days is a mere token sentence, which may well be considered extremely harsh in its effect in proportion to the conduct said to warrant it. It is difficult to envisage a situation which patently demands a custodial term of 7 days, rather than imposition of a substantial fine. This is particularly so when it is borne in mind that section 11 of the Criminal Law (Sentencing) Act, 1988 renders it abundantly clear that a custodial sentence is to be the last option, (relevantly) reserved only for cases in which, having regard to the gravity of the offending, any other sentence would be inappropriate.

I am driven to the conclusion that the sentence imposed in this case indicates error in the sentencing process.  I must therefore exercise the sentencing discretion afresh.

Whilst the appellant’s conduct cannot be condoned, this was scarcely the most serious and blatant offence of its type.  No pre-mediated, positive act of defiance was evident and there are a number of substantial mitigating features.  Whilst a modest custodial sentence was clearly called for, this is a situation in which a merciful approach is plainly warranted.

The appeal will be allowed and the sentence of imprisonment set aside.  In lieu there will be a sentence of imprisonment for 21 days, such sentence to be suspended on the entry by the appellant into a bond of $200 to be of good behaviour for a period of 12 months.