Valentincic v Police No. Scgrg-97-1484 Judgment No. S6477

[1997] SASC 6477

VALENTINCIC  v  POLICE

Olsson J (Ex tempore)

The appellant appeals against custodial sentences imposed upon him on 13 October, 1997 by a stipendiary magistrate.  Those sentences were the outcome of the entry by him of pleas of guilty to charges of driving whilst disqualified, driving under the influence of alcohol, and driving a vehicle with its two headlights not alight.
The learned magistrate, having considered carefully detailed submissions put to him by Mr Keane, on behalf of the appellant, ultimately sentenced the appellant to imprisonment for 21 days in respect of the driving whilst disqualified, and to a further 21 days imprisonment for driving under the influence, to be served concurrently with the first custodial sentence.  The more minor offence of driving without headlights alight was dismissed without conviction and further penalty.
It is the appellant's contention advanced by Mr Keane that, in all of the relevant circumstances, the requirement to actually serve the custodial sentences imposed was manifestly excessive.  He contends that they ought to have been suspended. 
I first turn to the relevant narrative facts, and I take those from the affidavit of the prosecutor.
The learned magistrate was informed that, at about 2.25 am. on 8 May, 1997, police were on uniform mobile patrol duties stationary at the junction of Frank Jackman Lookout and Princess Highway, approximately 3 kilometres south of Murray Bridge.  At this location police observed a Holden utility registration RZL 775 being driven without any lights in a southerly direction along Princes Highway. Police stopped the vehicle and observed the driver move from the driver's seat to the front passenger seat and the passenger moved to the driver's seat.
Police approached the driver who had been driving the vehicle, that is to say the defendant, and had a conversation with him regarding driving without lights.  On speaking to him police smelled a strong smell of liquor on his breath.  They therefore requested the appellant to alight from the vehicle.  As he did they noted that he was swaying left to right, approximately half a metre each way of centre.  It was noted that his eyes were bloodshot and, as he spoke, his speech was slurred.
The police officers, having formed the opinion that the appellant had been driving under the influence, conveyed him to the Murray Bridge Police Station.  En route they made enquiries in relation to his driver's licence status and ascertained that he had been disqualified from holding or obtaining a driver's licence for the period from 23 January, 1997 up to and including 22 October 1997.
The appellant was submitted to a blood alcohol test at about 3.13 am. on 8 May, 1997.  This produced a reading of 0.133 %.  It was assessed at the time that the appellant was grossly affected by liquor.  He was said to have been uncooperative with the police and extremely rude. 
There was some debate initially as to whether or not the appellant had been the driver of the vehicle, but in the end it was ultimately conceded that he had been driving.
It only remains to be said with regard to the narrative facts that the disqualification to which the appellant had been subject at the time was the product of an earlier offence of driving with a prescribed concentration of alcohol.
As I have said, careful and full submissions in mitigation were put to the learned magistrate.  As emerges from Mr Keane's affidavit, it was said that the appellant was a man 25 years of age.  It was said that, in the hours leading up to the time of the offence, the appellant had been in Murray Bridge in the company of a friend named Thompson.  Both of these persons had consumed a considerable quantity of alcohol. It was common ground that they both were significantly intoxicated.
At some stage, presumably not long prior to the commission of the offences, Thompson informed the appellant that he needed to go to Mannum to attempt to obtain payment of a debt of $300 due to him by an acquaintance.  Thompson was anxious to do this without despatch, because he expressed himself to be of the belief that the debtor was leaving the district and that his departure was imminent.
Mr Keane told the learned magistrate that his instructions were to the effect that over a period of time, Thompson repeatedly applied pressure to the appellant to drive him to Mannum in accordance with his original request.  For a time the appellant refused to do this on the basis that he, quite rightly, assessed that he was himself too inebriated to do so.  He also pointed out that he had been disqualified from driving. Initially he stated that he was not prepared to drive in any circumstances.
The debate about whether or not the appellant ought to drive Thompson to Mannum seems to have continued over a significant period of time, during which both of the persons concerned continued to ingest alcohol.
The learned magistrate was informed that, in the course of repeated requests by Thompson to the appellant to drive him, Thompson began to question the appellant's loyalty and comradeship.  He told the appellant that he would terminate their friendship if the appellant did not agree to drive the to Mannum forthwith.  Thompson repeatedly stressed to the appellant that he desperately required the money that was due to him and he would never be able to recover it unless he got to Mannum that evening.  What was his basis for asserting that is not entirely clear.
It was submitted that Thompson's comments about terminating his friendship with the appellant may well have had a considerable effect on the latter whilst he was in an intoxicated state, given that most of appellant’s friends lived in Adelaide.  He had very few friends in Murray Bridge apart from Thompson.  He had only been residing in Murray Bridge for a period of about  three months.
It was conceded before the learned magistrate that, after numerous requests and a considerable degree of pressure from Thompson, the appellant finally yielded to Thompson's requests and agreed to drive both of them to Mannum.  I might say that the driving was not to be, and was not, in the appellant's vehicle.  It was in a vehicle owned by Thompson. It seems that Thompson had realised that he, himself, due to his own intoxication, was incapable of driving his own vehicle.
There is no question but that, at the time when these discussions were taking place, the appellant was quite clearly of the understanding that, if he drove the vehicle whilst disqualified, he would almost certainly receive a sentence of imprisonment.  Indeed it is not disputed, and was not disputed before the magistrate, that, during the earlier period of his disqualification, the appellant had adjusted his lifestyle so as to ensure that he did not impermissibly drive a motor vehicle. 
There was no financial gain for the appellant in assisting Thompson in the manner requested.  It seems likely that, had he been sober the appellant would never have yielded to Thompson's request in the manner in which he ultimately did.  At the end of the day he did accede to Thompson's persistent requests and that led to the detection of the offences in the manner which I have earlier recited.
There were various matters of mitigation put to the learned magistrate which are set out in Mr Keane's affidavit, but I do not think that it is necessary to rehearse those in the course of these reasons.
Mr Keane has very carefully taken me through the various matters which he has set out in his outline of argument in support of a strong contention on his part that this was not the type of situation which ought, inevitably, to attract a custodial sentence actually to be served.  He conceded that these were serious offences, but that the facts were such that it would have been appropriate for any custodial sentence imposed to have been suspended.  He pointed out that the appellant had not previously served any custodial sentence and was absolutely petrified of the prospect of having to do so.  He had no relevant antecedent report, other than, of course, the PCA offence which had led to his initial disqualification.
Not surprisingly, Mr Keane took me through the recent important decision of the specially constituted Full Court of this Court in the case of Cadd.  One is tempted to comment that is not altogether easy, because of the multiplicity of judgments published in that case and the differing paths pursued by the writers of them, to discern with clarity what are the principles stemming from the decision.  However, it seems to me beyond question that several propositions may be derived from it.  The first is that, contrary to previous decisions of this court, a custodial sentence in cases of this type, and the requirement actually to serve it, is not to be taken as being an almost inevitable consequence of conviction.
The Full Court in Cadd seems to have approached the matter on the basis that a custodial sentence will normally flow from conviction if the relevant driving was "contumacious" in the relevant sense. There is, of course, an interesting semantic debate which has ensued, both at the time of Cadd and in subsequent decisions, as to what is meant by "contumacious".  For sentencing  purposes, I do not propose to embark upon a fully definitive discussion of that issue, but it does seem to me that the situation really requires some consideration of whether or not 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 any order of disqualification or any statutory provision.
So much really stems from what fell from Perry J in Bates v the Police. My comments are an imperfect analysis of what he said. 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.
Approaching the situation from that point of view, as I have I think already indicated, there cannot be the slightest doubt that this was a case in which a sentence of imprisonment was appropriate, leaving aside, for the moment the issue of suspension.  I do not see how it can reasonably be argued that this was not a contumacious breach of the order of suspension.  The fact of the matter is that, even if he was in an alcoholic haze at the time, the appellant well appreciated the seriousness of driving in the manner in which he did, and of the possible consequences of that driving.
The driving itself, of course, was on a major arterial road, and it was driving which was accompanied by the fact that the headlights of the vehicle were not illuminated at a time which what was in the early hours of the morning.  That, perhaps, is some indication of the degree of incapacity of the appellant in relation to his intoxication.
The real issue in this case seems to me to be whether or not it can be said that the failure to suspend the sentence imposed amounted to error on the part of the learned magistrate. It is trite to say that where what is in issue is the exercise of a discretion, either to suspend or not to suspend, an appellate court can only properly interfere if it is satisfied that there has been some error in sentencing principle, or that the magistrate has misappreciated the relevant facts or misapplied them in some manner.
The difficulty which I have with the very careful and helpful argument advanced by Mr Keane is that, at the end of the day, although it may be said that there were some special circumstances in this case which were a little out of the ordinary and although the magistrate himself was disposed to accept that at the time, as he put it, the pressure for the defendant both to help the friend and to drive was extreme, nevertheless at the very best, from the appellant's point of view, this was a situation which was, perhaps, somewhat near to the borderline in relation to consideration of suspension. 
True it was, he had never before served a custodial sentence and, true it was, that he was subjected to a great deal of pressure.  It may well have been that had he not been intoxicated, he would not have yielded to that pressure.  However, the learned magistrate was entitled, as he did, to come to the conclusion that what special circumstances existed here really did not sufficiently take this matter out of the usual run of the mill cases of this type  as to warrant a suspension of what was in the circumstances, a very modest sentence.  I frankly cannot see, on the material before me, that it can fairly be said that the magistrate fell into error in adopting the approach which he did adopt.
It may be that individual minds might differ, at first instance, to what would have been appropriate in this case. It may be that, had I decided the case, I might have been prepared to extend some degree of leniency to the appellant.  But all that that demonstrates is that, in many of these cases, the decision to be made is difficult.  The fact is that minds might fairly differ as to the appropriate course, but that is not sufficient to entitle me to intervene in a case such as this.
These are difficult and important cases.  It is vital that the magistracy deal with them on a basis which, on the one hand is fair and just, but which, on the other hand, adequately ensures that inappropriate messages are not conveyed to the community at large.  It is a very serious matter to drive a motor vehicle whilst under suspension.
In all of the circumstances, I am not satisfied that proper grounds have been made out for the allowance of this appeal.  It will, therefore, be dismissed.  There will be an order accordingly.