TREEBY v Police - [2005] SASC 445

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
TREEBY v POLICE
Judgment of The Honourable Justice Debelle (ex tempore)
21 November 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against sentence - appellant pleaded guilty to three traffic offences - seven days imprisonment imposed for offence of driving whilst disqualified - whether offending contumacious - whether sentence should be suspended - procedure for determining sentence suspension - held, sentence should be suspended upon imposition of bond - appeal allowed.
Motor Vehicles Act 1959 s 91; Road Traffic Act 1961 s 42; Australian Road Rules r 100, referred to.
Police v Cadd (1997) 69 SASR 150; R v Palliaer (1984) 35 SASR 569; R v Wilton (1981) 28 SASR 362, considered.

TREEBY v POLICE
[2005] SASC 445
Magistrates Appeal: Criminal

DEBELLE J. On 29 September 2005 the appellant pleaded guilty in the Adelaide Magistrates Court to three driving offences. They were:
1.driving past a No Entry sign contrary to rule 100 of the Australian Road Rules;
2.driving whilst disqualified from holding or obtaining a drivers licence contrary to s 91 of the Motor Vehicles Act 1959; and
3.failing to truly answer questions asked by a police officer as to the appellant’s name and place of residence contrary to s 38 of the Road Traffic Act 1961.
All of the offending occurred on 2 March 2005 at Ashley Street, Torrensville.
The magistrate convicted the appellant of all three offences. He convicted the appellant without penalty for the first offence. He fined the appellant $300 for the third offence. For the second offence the magistrate imprisoned the appellant for seven days. The period of imprisonment has not been served, the magistrate staying the order pending the hearing and determination of this appeal.
The appellant appeals against the order for imprisonment, contending also that it should have been suspended. As the appeal is only against the sentence and the refusal of the magistrate to suspend the period of imprisonment, it is necessary only to consider the circumstances relating to the commission of the offence of driving whilst disqualified from holding or obtaining a driving licence.
On 22 December 2004 an order had been made in the Port Adelaide Magistrates Court disqualifying the appellant from holding or obtaining a driver’s licence for a period of six months until 21 June 2005. The magistrate who made the order explained to the appellant the consequences of driving whilst disqualified. The appellant acknowledged to police on 2 March that he understood those consequences. The appellant’s reason for driving on this occasion was to get to training at his football club. He is a member of the Woodville West Torrens Football Club and began playing football in the SANFL competition in 2004.
The appellant has two forms of employment, one as a carpenter and the other as a professional football player. His counsel informed the magistrate that the appellant had made arrangements to cope with the order of disqualification made in 2004. In respect to his carpentry, he had arranged for apprentices to drive him to and from building jobs. In respect of his football training, he had moved house so that he would be able to the reside close to the Woodville Oval, where he trained. His house was walking distance from the Woodville Oval. However, the venue for training had been temporarily changed to Thebarton Oval. Upon that occurring, he had made arrangements with his teammates to drive him to and from training.
On 2 March 2005, the day of the offending, the appellant had been working at Aldinga. He had arrived home later than expected. He could not be driven to training by his teammates, who had already left. He asked his partner to drive him but she could not because of work commitments. He was concerned that he might be disciplined for being late for training and in particular might be excluded from the football team. He, therefore, decided to drive to the Thebarton Oval. He was apprehended while doing so.
The appellant has only one other conviction. It is for dangerous driving. It was the offence for which his licence had been disqualified.
The appellant’s counsel submitted to the magistrate that the appellant’s act was impulsive and stupid and would not be repeated. He submitted that the appellant was of good character. He tendered three character references favourable to the appellant. He relied on the fact that the appellant had two forms of employment and that the appellant was in a long-term relationship.
The magistrate had regard to all of those factors. In relation to the offence of driving whilst disqualified, the magistrate expressed the view that the appellant could have called a taxi cab to take him to training. He described the appellant’s driving as evidence of contempt on the part of the appellant for the court order of disqualification. The magistrate concluded that the appropriate penalty was a period of imprisonment for seven days. He did not suspend the order of imprisonment.
It is apparent from the sentencing remarks of the magistrate that he was aware that he had to be satisfied that the offending by the appellant was contumacious if an order of imprisonment was to be made. The appellant appeals against that finding.
In my view, the finding was open. No explanation was given to the court as to why the appellant could not have called a taxi cab or why those who had driven him from Aldinga could not have driven him to the Thebarton Oval. The finding was clearly open and there is no ground, in my view, for interfering with it.
This Court has commented on a number of occasions on the desirability of evidence being given, on oath or affirmation, if an offender seeks to demonstrate that the offending is not contumacious. If the offender chooses not to give evidence, he must accept any finding made in the absence of such evidence.
I turn to the question of whether the magistrate should have suspended the order of imprisonment. There is no reference in the magistrate’s sentencing remarks to the question whether it was appropriate to suspend the sentence. The remarks indicate that the magistrate took the view that a short period of imprisonment should be ordered and that it should be served.
The magistrate’s remarks give rise to a concern that he had not decided the appropriate sentence before turning his attention to the question whether or not to suspend the sentence: R v Wilton (1981) 28 SASR 362 at 367; R v Palliaer (1984) 35 SASR 569.
As the Chief Justice noted in Police v Cadd (1997) 69 SASR 150 at 167, the seriousness of the offence of driving whilst disqualified makes it difficult to suspend the sentence of imprisonment. Nevertheless, there may be circumstances justifying suspension. Individual consideration must be given to those matters and particularly to the circumstances of the offender.
In this case, the question whether to suspend the sentence directly arose. The appellant is of good character. He has but one conviction and that for dangerous driving, admittedly a serious offence. He is, however, in full employment. He was a person who would be likely to respond to a final warning given in the form of a suspended sentence. In addition, there is the community interest in rehabilitating an offender without imprisonment. The court is reluctant to imprison an offender, particularly a young offender, for the first time. One ground for that reluctance is that the prison system provides little opportunity for rehabilitation. The interests of the community are best served in this case by allowing the appellant an opportunity to demonstrate that he has the capacity to be a worthwhile member of the community. That message will be reinforced by requiring him to enter into a bond to be of good behaviour for a period of two years. The appellant will know that, should he offend in that period, he will be liable to serve the period of imprisonment of seven days.
I will therefore allow the appeal. The order of the Magistrates Court will be varied by adding an order that the period of seven days imprisonment will be suspended upon the appellant entering into a bond to be of good behaviour in the sum of $750 for a period of two years. It will be a condition of the bond that he comply with the lawful directions of the Community Services Officer. There will be no order as to costs.