TORRESAN v Police

[2007] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

TORRESAN v POLICE

[2007] SASC 48

Judgment of The Honourable Justice David

20 February 2007

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING

Appeal against sentence – appellant pleaded guilty to offences including two counts of driving whilst disqualified – magistrate imposed sentence of 10 days imprisonment unsuspended in relation to one count of driving whilst disqualified and magistrate convicted without penalty in relation to the other offences – whether offending was contumacious – whether sentence was manifestly excessive – whether magistrate erred in not suspending sentence – held, appeal dismissed – offending was contumacious – sentence imposed was not manifestly excessive and magistrate did not err in not suspending sentence.

Motor Vehicles Act 1959 s 91; Bail Act 1985 s 17, referred to.

TORRESAN v POLICE
[2007] SASC 48

Magistrates Appeal

1. DAVID J.               The appellant pleaded guilty in the Adelaide Magistrates Court to two counts of driving whilst disqualified, on 27 August 2006 and 13 September 2006, contrary to s 91 of the Motor Vehicles Act 1959 and two counts of breach of bail on 13 September 2006, contrary to s 17 of the Bail Act 1985.

2. The magistrate ordered that the appellant be imprisoned for ten days in relation to the offence of driving whilst disqualified committed on 13 September 2006. The magistrate declined to suspend the term of imprisonment. In relation to the other three charges the magistrate recorded a conviction without penalty on each.

3. The appellant appealed against the sentence of imprisonment on the ground that it was manifestly excessive, or alternatively it should have been suspended.

4. The appellant also sought to tender fresh evidence which was not before the magistrate concerning the loss of his employment if he was imprisoned, and also material from the Residential Tenancies Tribunal indicating that he would be evicted if he fell behind in his rent. Although the tender of that material was notionally opposed by the respondent, I indicate that I will allow it and have had regard to it.

5. The appellant is a 50 year old man born and raised in Adelaide, who has five children, with ages ranging from 11 to 23 years. He separated from his wife in 1996.

6. The magistrate was informed that he had a number of previous convictions for traffic offences, and also that he had received suspended sentences on three prior occasions for offences unrelated to traffic matters. On 2 December 2005 he was convicted of two separate offences, each committed in November and December 2004, namely driving under the influence of alcohol and driving with an excess of alcohol in his blood. His driving licence was suspended for a period of 18 months in relation to those offences. That period is due to expire on 3 June 2007. On 27 August 2006 the appellant was arrested for driving whilst disqualified. The circumstances of that offending as explained to the magistrate were that he was distraught and concerned that his daughter was using drugs, and he drove to a hotel to confront a drug dealer and implore him not to supply drugs to her. He was beaten by the drug dealer. He then drove to the home of some friends to seek protection, in order to go back and confront the drug dealer again. He was apprehended by police, arrested and released on bail. It was a condition of his bail that he would not occupy the driver’s seat of a motor vehicle whilst on a road unless holding the appropriate licence.

7. As a result of that arrest he intended to sell his motor vehicle. A person agreed to buy the car and had arranged to collect it from his premises on 13 September 2006. When he was preparing the car for sale he realised there was no petrol in it, and he drove it to a service station to fill it with petrol ready for the new owner. It was during that journey, whilst driving along Marion Road, that he was apprehended for driving whilst disqualified.

8. The two charges of breach of bail are for failing to comply with the conditions of bail which were imposed on him when he was granted bail on 27 August 2006. One was in relation to his place of residence and one was forbidding him to sit in a motor vehicle as already described.

9. The magistrate found that the driving whilst disqualified on the second occasion was contumacious. He considered that it was not so on the first occasion because of the circumstances in which the appellant was placed. In my view, the magistrate was correct in categorising the offence of 13 September 2006 in the way he did. The offending in relation to the appellant’s driving on this occasion was committed with total disregard to the fact that he was driving whilst disqualified. It was not done in any situation of emergency. The offence was further aggravated by the fact that on 27 August 2006 he had been charged with driving whilst disqualified, and there was a condition in his bail agreement which emphasised the fact that he was not to do so. The magistrate properly did not consider that the first disqualification was to be regarded as a previous conviction.  It is, of course, not. However that breach, a little over two weeks before the offence for which he was imprisoned, indicates a clear warning against driving whilst disqualified, which the appellant ignored.

10. In my view, the magistrate did not err in not suspending the sentence. I also find that the sentence was not manifestly excessive. I dismiss the appeal.