THOMPSON v Police

[2007] SASC 370

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

THOMPSON v POLICE

[2007] SASC 370

Judgment of The Honourable Justice Bleby (ex tempore)

16 October 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence – appellant pleaded guilty to offences of driving dangerously to escape police pursuit, aggravated assault, resisting police, driving disqualified and failing to comply with a request to submit to a breath analysis test – offences arose out of single incident – separate penalties imposed for each offence but ordered to be served concurrently with the effect that the appellant was to serve four months imprisonment – whether Magistrate erred in failing to suspend sentence of imprisonment – Held: appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) ss 19AC, 23; Summary Offences Act 1953 (SA) s 62; Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) ss 46, 47E, 47J, referred to.
Police v Cadd (1997) 69 SASR 150; Sheean v Police (1999) 202 LSJS 410; Khammash v Police (1999) 29 MVR 561; Maxwell v Police (1998) 102 A Crim R 374; Pennell v Police [2000] SASC 355; Dinsdale v The Queen (1999) 202 CLR 321; House v The King (1936) 55 CLR 499, considered.

THOMPSON v POLICE
[2007] SASC 370

Magistrates Appeal:         Criminal

BLEBY J.

1. This is an appeal against sentence.  On 8 August 2007 the appellant pleaded guilty to and was convicted of the following offences:

   1 One aggravated offence of driving dangerously to escape police pursuit contrary to s 19AC(1) of the Criminal Law Consolidation Act1935 (SA). The maximum penalty for that offence is five years imprisonment. The Magistrate imposed a penalty of four months imprisonment and disqualified the appellant from holding or obtaining a driver’s licence for a period of two years.

   2 One offence of aggravated assault contrary to s 23 of the Criminal Law Consolidation Act.  The maximum penalty for that offence is three years imprisonment.  The Magistrate imposed a penalty of two months imprisonment.

   3 One offence of resisting police contrary to s 62 of the Summary Offences Act1953 (SA). The maximum penalty for that offence is a fine of $10,000 or imprisonment for two years. The Magistrate convicted the appellant of that offence without penalty.

   4 One offence of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the Motor Vehicles Act1959 (SA). For a first offence the maximum penalty is imprisonment for six months and for a subsequent offence, imprisonment for two years. The penalty imposed by the Magistrate was imprisonment for two months.

   5 One offence of failing to comply with a request to submit to a breath analysis test contrary to s 47E of the Road Traffic Act 1961 (SA). For a second offence, which this was, the penalty is a fine of not less that $1,500 and not more than $2,500. The Magistrate imposed a fine of $1,500. Section 47E(6) requires the court to order a disqualification from holding or obtaining a driver’s licence for a second or subsequent offence for a period of not less than three years as the court thinks fit. No disqualification has yet been ordered on that conviction as the Magistrate has ordered an examination and report under s 47J of the Road Traffic Act which may result in a longer supervision.

2. The Magistrate ordered that the three sentences of imprisonment be served concurrently.  She declined to order that the sentences or any of them be suspended. 

3. As amended, the only ground of appeal is that the Magistrate erred in not suspending the sentences of imprisonment. 

4. All the offences occurred in the early hours of Saturday 16 September 2006.  The appellant had been to a nightclub with his girlfriend.  He was removed from the premises because he was intoxicated.  He grabbed the car keys from his girlfriend in order to sit in the car.  She followed him to the car.  There was an argument and she returned to the nightclub.  Angry and frustrated, the appellant decided to drive himself home.

5. Police observed the vehicle travelling in an erratic manner, including driving on the incorrect side of the road.  Police followed the appellant and decided to stop the vehicle once it passed the intersection of Philip Highway and John Rice Avenue, Elizabeth South.  However, the appellant lost control of the vehicle when it entered a portion of that intersection which was wet from sprinklers.  The vehicle mounted the kerb, causing the front left-hand tyre to burst.  The vehicle then collided with a give-way sign.  Police activated lights and sirens to require the appellant to stop, but he continued driving along Philip Highway, Elizabeth South at a speed of not less than 95 km per hour in a 60 km zone.  Police pursued the vehicle for 6.5 km, during which the appellant drove through a red traffic light, until the vehicle eventually mounted the kerb at an intersection in Brahma Lodge.  These events constituted the first offence, the circumstances of aggravation being that he was driving while disqualified from holding or obtaining a driver’s licence.

6. The appellant attempted to escape from the vehicle.  A police officer attempted to restrain him, and as he did the appellant struck at the police officer with his elbow causing it to make contact with the right side of the officer’s face, causing soreness, redness and swelling to his right eye and face for which he needed casualty hospital treatment.  These events constituted the aggravated assault.

7. As police attempted to effect a safe arrest, the appellant thrashed his arms and legs around resisting police in their attempts.  That constituted the offence of resisting police.

8. He was eventually handcuffed and conveyed to the Elizabeth police station.  He refused to undertake a breath analysis test.  That was the subject of the fifth offence.  The appellant was described by police as being extremely aggressive and agitated throughout the whole procedure.

9. At the time of the offences the appellant was disqualified from holding or obtaining a driver’s licence by three separate court orders.  Driving while disqualified constituted the fourth offence.  On the occasion of imposing each of those orders he had been warned of the consequences of driving while disqualified.

10. The appellant is a 34 year old Aboriginal man, born in the Northern Territory.  His father had been the head stockman at the Finke River Station, where the appellant lived until he was aged 16 or 17.  He too had worked as a stockman on the station since the age of 12.  He did not learn to read or write in his youth but had taught himself to read during his adult life.  He had been continuously employed since the age of 12, most recently with a road construction company where he regularly worked long hours for five or six days a week.  The court was told that his employer was keen to have the appellant back after his release.

11. The appellant was living with his girlfriend and her three children.  He was also father to three children aged 9, 10 and 12 to whom he had access on weekends.

12. The appellant enjoys good health.  However, his biggest problem is that, since a young age, he has continued to indulge in regular excessive drinking of alcohol.  He has a number of relevant convictions, although, with one exception, not for offences the subject of this appeal.  In 1990 he was convicted of resisting police.  In 1997 he was convicted of threatening to cause harm, the public order offences of indecent language and urinating in a public place, and of carrying an offensive weapon, damaging property and driving an unregistered vehicle.  In June 2000 he was convicted without penalty for hindering police.  There have been several breaches of bail.  There were two convictions in 2006 for drink driving offences committed in 2004.  In 2006 he was also convicted of failing to stop after an accident, failing to submit to a breath analysis test and failing truly to answer questions.  Those offences occurred in December 2005.

13. The offences the subject of this appeal were extremely serious.  That is acknowledged by the appellant.  Although property damage was relatively minor, the potential for serious injury or death to other road users was very high.

14. The offence of driving dangerously to escape police pursuit, contrary to s 19AC(1) of the Criminal Law Consolidation Act, is a relatively new offence. It came into force as from 18 August 2006, shortly before the offending in question. Prior to the creation of that offence, the appellant would probably have been charged with a breach of s 46 of the Road Traffic Act, for which the maximum penalty is imprisonment for two years.  Parliament has therefore mandated a substantially increased penalty for this type of offence involving attempts to escape from police pursuit. 

15. In the circumstances, the Magistrate’s penalty of four months imprisonment was quite moderate.  However, the offending was also contumacious.  That too is acknowledged by the appellant.  It was committed in anger.  The appellant had been warned on three occasions prior to this offending of the consequences of driving while disqualified.  In the circumstances of this offending and in the light of the decision of this court in Police v Cadd[1] and cases which have followed,[2] it would not be unusual for a sentence of imprisonment to be imposed for the offence of driving while disqualified, even for a first offence.  There were other circumstances of aggravation to which I have referred.  The offending may have been fuelled by excessive alcohol.  That was an explanation, not an excuse.  In fact it aggravated all the offences for which a penalty was imposed.

    [1] (1997) 69 SASR 150.

    [2]    Sheean v Police (1999) 202 LSJS 410, 106 A Crim R 38, [1999] SASC 187; Khammashv Police (1999) 29 MVR 561, [1999] SASC 225; Maxwell v Police (1998) 102 A Crim R 374 and Pennell v Police [2000] SASC 355.

16. The Magistrate gave serious consideration to suspending the sentences.  She considered that the appellant was not entitled to that degree of leniency because he was driving under disqualification.  There were no circumstances which would suggest that the appellant’s behaviour and the decisions that he made on that night could be excused.  In determining whether to suspend the sentences it was appropriate that the circumstances of the offence be taken into account as well as circumstances of the offender and his prospects of rehabilitation.[3]

    [3]    Dinsdale v The Queen (1999) 202 CLR 321, [2000] HCA 54.

17. The Magistrate took into account not only the seriousness of the offending but also the appellant’s plea of guilty, his antecedent history, his personal circumstances, the opportunities he had had before to do something about his alcohol consumption, his loss of employment and his family situation.  I am unable to detect that the Magistrate failed to take any relevant matter into consideration.  Ultimately, it was a matter for the exercise of the Magistrate’s discretion.  She decided that an immediate custodial sentence was required principally because of the seriousness of the offending.  Her Honour was justified in so doing. 

18. This Court cannot interfere with the exercise of that discretion unless it can be shown that the Magistrate committed some error of fact or law, took into account some irrelevant consideration or failed to take into account a relevant consideration, or that the failure to exercise the discretion in favour of the appellant was quite unreasonable.4  It is not relevant whether I would have exercised the discretion in the same way myself.  However, there was ample justification for the Magistrate to decline to suspend the sentence.

    4    House v The King (1936) 55 CLR 499 at 504-505.

19. The appeal is dismissed.  In accordance with the terms of his bail agreement, the appellant must appear before a Magistrate at the Elizabeth Magistrates court within 14 days of today to abide the result of this decision.