THOMPSON v Police

[2009] SASC 150

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

THOMPSON v POLICE

[2009] SASC 150

Judgment of The Honourable Justice Bleby (ex tempore)

21 May 2009

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER MATTERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE

Appeal against sentence – appellant convicted and sentenced in the Magistrates Court for three offences committed in a single course of conduct – one offence was a count of driving whilst disqualified – offence found to be contumacious – appellant had two prior convictions for driving whilst disqualified – penalty of seven weeks imprisonment imposed for that offence – whether Magistrate erred in finding the offence was contumacious – whether Magistrate gave adequate reasons for not suspending sentence – whether Magistrate erred in failing to suspend the sentence of imprisonment – Appeal dismissed.

Motor Vehicles Act 1959 (SA) s 98BC, referred to.
Police v Cadd (1997) 69 SASR 150; Long v Police (1998) 72 SASR 515, discussed.
Nash v Police [2009] SASC 112; R v Ivic [2006] SASC 8; Neill v Police [1999] SASC 270; R v Maslen (1995) 79 A Crim R 199, considered.

THOMPSON v POLICE
[2009] SASC 150

Magistrates Appeal

1. BLEBY J. (Ex tempore)    On 24 February 2006 the appellant was convicted of driving with more than the prescribed concentration of alcohol in his blood. He was disqualified from holding or obtaining a driver’s licence for a period of eight months expiring on 24 October 2006.

2. On 16 May 2006, during the period of disqualification, he drove a motor vehicle on a road (“the first offence”). On 21 August 2006 he was sentenced in the Magistrates Court for the first offence to a period of imprisonment for one month, which sentence was suspended upon his entering into a bond in the sum of $300 to be of good behaviour for 18 months.

3. By notice received from the Registrar of Motor Vehicles the appellant was again disqualified from holding or obtaining a driver’s licence for a period commencing on 3 September 2008. That disqualification occurred as a result of a number of speeding offences, presumably under s 98BC of the Motor Vehicles Act 1959 (SA). On the first day of that disqualification, 3 September 2008, the appellant again drove whilst he was disqualified (“the second offence”), but in circumstances where the Court accepted that the appellant believed that the period of disqualification began at midnight at the end of that day, whereas in fact it had begun at midnight at the beginning of that day. When the appellant was sentenced for that offence on 30 March 2009 the Magistrate accepted that that offending was not contumacious. The appellant was convicted and fined the sum of $380.

4. There is no doubt that at the time of the second offence the appellant was fully aware of the consequences of driving while disqualified.

5. On 10 December 2008, while still subject to the licence suspension which commenced on 3 September 2008, the appellant again drove a motor vehicle on a public road (“the third offence”). He committed two other driving offences besides the offence of driving whilst disqualified. He was sentenced for those offences also on 30 March 2009 by the same Magistrate.

6. One of the other convictions arising out of the same course of conduct on 10 December 2008 and to which the appellant pleaded guilty was the offence of driving a motor vehicle in a culpably negligent manner with the intention of escaping the pursuit by a police officer. The Magistrate found that the pursuit lasted for a period of three to four minutes over a distance of two to three kilometres, and that the appellant tried to avoid the police because he knew that he was disqualified from holding or obtaining a driver’s licence.

7. After taking account of the appellant’s plea of guilty, the appellant’s work history and his personal and family circumstances, the Magistrate imposed a sentence for the third offence of seven weeks imprisonment. He found that there was no good reason to suspend the sentence.

8. The appellant now appeals against the sentence for the third offence and seeks an order that the sentence of imprisonment be suspended. He does not complain about any of the other sentences imposed by the Magistrate on 30 March 2009. The maximum penalty for a second or subsequent offence of driving while disqualified is two years imprisonment.

9. It is not clear that the Magistrate was told that, when the appellant was sentenced on 21 August 2006, the Magistrate on that occasion found that the offending was contumacious in the sense discussed by this Court in Police v Cadd..[1] However, the fact that a suspended gaol sentence was imposed on an 18 or 19 year old driver can lead to no conclusion but that the first offence was considered to be contumacious.

   [1] (1997) 69 SASR 150, 179.

10. The sentence now under appeal is technically for a third offence, but in view of the circumstances of the second offence and the finding by the Magistrate that that offending was not contumacious, that offending carries little weight.

11. In the course of his sentencing remarks on the third offence the Magistrate noted that the appellant’s counsel had conceded that the appellant’s driving on the occasion of the third offence was contumacious. [2]

    [2] At paragraph [10].

12. By his amended notice of appeal filed by leave on 11 May 2009 the appellant appeals against the sentence for the third offence on two grounds. The first ground is that there was an error in the sentencing process because the concession made before the Magistrate that the offending was contumacious was incorrect. The appellant claims that the Magistrate’s finding that the offence was contumacious should be set aside and the sentencing discretion should be considered afresh. In the alternative, by way of the second ground, the appellant claims that the Magistrate erred in failing to suspend the sentence of imprisonment.

13. At the hearing of the appeal Ms Fuller, counsel for the appellant, without objection from the respondent, sought to argue as part of the second ground that there was an error of law by the Magistrate in failing to give any or any adequate reasons for imposing a sentence of imprisonment and refusing to suspend the sentence.

14. As to the first ground in the notice of appeal, I have already referred to the Magistrate’s finding of the concession by counsel. There was no doubt that the concession was made.[3] However, the Magistrate also went onto say what the appellant did to render the offending contumacious. He said:

    [I]t was deliberate on your part as it were, to thumb your nose at the law knowing that you were disqualified and nevertheless decided to drive.

    In my view, that constituted an independent finding of the Magistrate regardless of the concession.

    [3]    Affidavit of Drew Nathan Woods sworn 4 May 2009, paragraph 14.4.

15. In my opinion the concession was properly made. The Magistrate was told that the appellant was driving from the local shops to his work site during his lunch time. To have done that he must have driven the car to work earlier in the day. The appellant was aware that he was disqualified and was aware that he was breaking the law by driving. There was no suggestion of any pressing emergency or pressure on him necessitating the driving. He was apparently doing so for his own personal convenience and as a matter of personal choice.

16. In his reasons for decision in Police v Cadd[4] Mullighan J, when discussing the meaning of “contumacious” in the sense that it is understood in the law 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.

    [4] (1997) 69 SASR 150, 179.

17. In Long v Police[5] Mullighan J had occasion to consider what other judges of this Court had said of the expression since the decision in Police v Cadd. He noted that others had given a different emphasis to what he had said in Cadd. He maintained the view that he had expressed in Cadd. He accepted that conduct which was contumacious involved defiance but that the matter could not be resolved merely by the extent and purpose of driving. He considered that reasons for driving are important and that “if it exhibits an attitude of defiance contumacy would usually be established”.

    [5] (1998) 72 SASR 515, 518-519.

18. Given the attitude of the appellant as indicated by his stated reason for driving, his acknowledgement that he was aware that he was disqualified and he was aware that he was breaking the law by driving, and his knowledge that he had already been convicted once for such an offence and apprehended for the second offence, I have no doubt that the Magistrate correctly determined that the offending was contumacious. Not only was it contumacious because the appellant was driving for his own convenience in full knowledge of his disqualification, but by doing so he was acting in total disregard of the disqualification and in disobedience to the authority which imposed it.[6] Furthermore, when police sought to apprehend the appellant for other offending he deliberately continued to drive in order to avoid apprehension, knowing that the police were attempting to have him stop his vehicle for the purpose of questioning him. I reject the first ground of appeal.

    [6]    Police v Cadd (1997) 69 SASR 150, 179.

19. I turn to the adequacy of the Magistrate’s reasons for not suspending the sentence. The Magistrate delivered composite sentencing remarks for all the offences for which the appellant was sentenced on 30 March 2009. So far as is relevant to the second and third offences, the Magistrate noted that the appellant was aged 22. He found that the driving on the occasion of the second offence was not contumacious and made the finding that the driving on the occasion of the third offence was contumacious. The Magistrate noted that for the first offence the appellant “had the benefit of a suspended sentence of imprisonment for the same offending”. He also noted the written reference from the appellant’s employer that he had been “an honest, reliable and punctual employee with excellent work ethics”. The Magistrate recited the appellant’s previous employment history. He noted that the appellant had suffered from depression since the age of 18 through a loss of self-esteem and had been treated with anti-depressant medication. He did not mention, as had been submitted, that the medication had been changed at the suggestion of his general practitioner, that he had been on that medication for approximately one year and that “he was generally relatively stable”.[7] I take that to mean that at the time of the offence his depression was reasonably under control, albeit that he was still under medical supervision.

    [7]    Affidavit of Drew Nathan Woods sworn 4 May 2009, paras 13.12, 13.13.

20. The Magistrate noted that he had recently become engaged to his partner of some three and a half years standing, and that he had a 20 month and a two-week-old daughter. Although he had not worked for about a month, he was concerned about his future employment. He was the sole provider for his dependants, earning some $1,000 per week when working. The Magistrate noted that work was still open and available for him with his current employer. The Magistrate noted his plea of guilty.

21. The Magistrate also noted the need for strong general deterrence against an offence of this nature, an offence which he correctly noted was difficult to detect. He noted the circumstances of the offence. Having found that the conduct relating to the second offence was not contumacious, the Magistrate determined that there should be a term of imprisonment for the third offence and that it should be for a period of seven weeks, after taking into account the plea of guilty. There was no indication given as to the amount of the discount for the plea. The Magistrate repeated that the appellant had had the benefit of the previous suspended sentence. He continued:

    I will now turn to whether I can exercise my discretion to suspend that sentence. Regrettably, I find that I am unable to exercise my discretion to suspend that sentence and order that that term of imprisonment commence forthwith. I find there is no good reason to suspend that sentence.

22. The appellant argued that the Magistrate’s sentencing remarks provided no basis upon which this Court could determine whether, and if so how, the Magistrate weighed various factors in the exercise of his discretion. I disagree. The Magistrate stated all the relevant circumstances, including all those favourable to the appellant. Included in that was reference on two occasions to the fact that the appellant had had the benefit of a previously suspended sentence. He stated that there was an obvious need for deterrence. While the immediate purpose of the previous suspended sentence had been achieved, it was obvious to the Magistrate that the appellant had not learned from that previous sentence. The obvious implication from the Magistrate’s sentencing remarks was that he rejected the appellant’s personal circumstances as being sufficient to outweigh the need for a deterrent penalty of an immediate custodial sentence. As will appear from the authorities which I am about to mention, the Magistrate would have to have found truly compelling reasons for the sentence to be suspended. He was obviously unable to find such reasons. I reject the submission that the Magistrate’s reasons were inadequate.

23. I turn to the final ground of appeal, namely that the Magistrate erred in failing to suspend the sentence of imprisonment. In his reasons for decision in Police v Cadd,[8] after discussing the sentencing standard which should be applied to a first offender, Mullighan J said:

    Of course, different considerations must apply to the offender who is before the court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.

    [8] (1997) 69 SASR 150, 180. See also 201, Lander J and 209, Bleby J.

24. Mullighan J repeated that view in Long v Police:[9]

    I have embarked upon this discussion [as to the understanding of the word “contumacious”] because it was accepted in argument before me that whether the offending is contumacious is a relevant consideration upon a second offence. It is at least in the sense that if the offending is contumacious, a sentence of imprisonment actually to be served is almost inevitable.

    That passage was quoted with approval by the Chief Justice recently in Nash v Police.[10]

    [9] (1998) 72 SASR 515, 519.

    [10] [2009] SASC 112, [35].

25. There is a natural diffidence about sentencing relatively young people to an immediate custodial sentence for the first time. Suspension of a person’s sentence is very often used as a means of giving such an offender a last chance. The appellant was given his last chance on 21 August 2006.

26. The appellant’s dependants will almost certainly suffer some degree of hardship by his imprisonment. However, hardship of that nature can only be taken into account in extreme or extraordinary circumstances, and must go beyond the sort of hardship which inevitably results to a family when the bread winner is incarcerated.[11]

    [11]   R v Ivic [2006] SASC 8, [33]-[35]; Neill v Police [1999] SASC 270, [24]; R v Maslen (1995) 79 A Crim R 199, 209.

27. The effect of imprisonment on the appellant’s employment is uncertain. He was employed at the time by a civil engineering contractor, I infer as a casual employee, but had not worked for approximately one month prior to the hearing. It was apparently a course which suited him but it was also applicable by the current economic downturn. However, loss of employment, if it occurs as a result of incarceration, cannot be given any special status.[12]

    [12]   Police v Cadd (1997) 69 SASR 150, 168; Nash v Police [2009] SASC 122, [46]-[52].

28. Although the appellant was being treated for clinical depression, there is no evidence that it interfered with his judgment on the occasion in question.

29. Apart from his plea of guilty, there is little evidence of any contrition on the part of the appellant except, rather obliquely, in the course of his counsel’s submissions. Contrition was certainly not evident on the day of the offence when the appellant actively tried to conceal his offending. He was only apprehended with the aid of an off duty policeman. When police located him shortly after the offence both he and his car were concealed behind a large mound of dirt at the site where he was currently working.

30. Against all his personal circumstances there was an obvious need for deterrence, both personal and general. His previous suspended sentence for a similar offence had not apparently deterred him from re-offending in a contumacious way. The circumstances of this case are almost indistinguishable from the circumstances in Nash v Police,[13] where the Chief Justice dismissed an appeal in rather similar circumstances.

    [13] [2009] SASC 112.

31. In my opinion it was clearly open to the Magistrate to exercise the discretion in the way he did, and no error has been demonstrated. Had I been in the same position as the Magistrate I have little doubt that I would have reached the same conclusion.

32. It follows that this ground of appeal is not made out, and that the appeal must be dismissed.