Valenzuela v Police No. Scgrg-97-1694 Judgment No. S6527

[1998] SASC 6527

VALENZUELA v POLICE

Magistrates Appeal
Olsson J

The appellant appeals against orders of disqualification from holding and obtaining a driver’s licence made against him, on 11 November 1997, by a stipendiary magistrate.  He contends that the totality of the disqualification was manifestly excessive and that the learned magistrate had no power to order cumulative periods of disqualification.

The complaint against the appellant originally contained some seven separate counts.  When the matter came on for hearing the appellant pleaded guilty to four of them and the remaining three were withdrawn.

The offences admitted all arose from a single, continuing incident which occurred on 17 August 1997.  They were:-

.failing to stop after the occurrence of an accident between two vehicles in Hindley Street, Adelaide, whereby property damage was caused;

.driving a vehicle at a speed and in a manner dangerous to the public;

.driving in contravention of probationary licence conditions, in that there was present in the appellant’s blood the prescribed concentration of alcohol;  and

.driving while there was present in his blood the prescribed concentration of alcohol.

The learned magistrate elected to impose a single fine in respect of all four offences.  However, he made orders for two separate periods of licence disqualification.  In respect of the speed and manner dangerous offence he ordered disqualification for a period of two years to commence forthwith.  As to the PCA offence he directed an additional period of one year of disqualification, cumulative upon the two year period.

I can do no better than adopt the description given by the learned magistrate, in his sentencing remarks, of the conduct which gave rise to the offences.  He said:-

“The charges related to a most extraordinary period of driving behaviour, which commenced when a police patrol observed some poor driving activity in Currie Street in the city at 4.41 am on the day in question.  Under normal circumstances most citizens would have pulled over when directed to by the police, but not this young man.  He proceeded, over a period of some minutes, to virtually drive his motor vehicle in circles around Hindley Street, North Terrace, and through West Terrace, and various cross streets between those major roads, with the police in pursuit.

Whilst engaged in what can only be described as outrageously reckless driving, on at least one occasion he came into collision with another motor vehicle in Hindley Street.  One would have thought that the collision would have been enough to cause him to wake up to his senses, but not this young man.  He simply reversed the car and continued onwards in what must have been a damaged car.  His ongoing driving led him on several occasions to turn corners at speeds which were unsafe, causing the rear of his car to fishtail, and for the car to enter into wrong lanes.  He caused other drivers embarrassment on several occasions, when other cars had to swerve to avoid further collision with him.  On at least one occasion he managed to swerve into the gutter so both tyres struck the kerb.

During the whole of this time he was being pursued by the police car.  He knew that to be the case, because the police car had its lights and sirens activated.  The driving activity only stopped when the defendant manoeuvred his motor vehicle so that it struck a stobie pole.  Even then he was attempting to continue this behaviour, and it was only the arrival of the police patrol and the lack of drivability of his vehicle that brought the whole mad escapade to its conclusion.  The defendant was handcuffed and arrested.

As well as the fact he embarrassed other drivers, he also came perilously close to numerous pedestrians who were in that area at that time of the night.  There were a large number of intoxicated pedestrians in the near vicinity of the Newmarket Hotel.

When asked why he engaged in this behaviour, his only explanation was that he was scared.  It defies belief that any person would drive in this manner.  At any particular time he ran the very real risk that in driving his motor vehicle in such a reckless manner he would strike another human being or motor vehicle, possibly causing injury or death.  I also might add he had a passenger in the car.  That passenger was making frantic attempts to try to make the defendant desist from rapidly demolishing his car and endangering his own life.  The defendant, of course, was also endangering his own life during this whole incident.”

At the time of the offences the appellant was 18 years of age and a year 12 student at The Thomas More College.  He had no antecedent record and was a child of parents who migrated to Australia from El Salvadore in 1985.

Counsel made the following broad submissions to the learned magistrate:-

.it was freely acknowledged that the appellant’s driving on the night in question was appalling.  His explanation is that he became scared and that his conduct was the product of his immaturity.

.he appreciated the seriousness of his offending and was both ashamed and contrite.

.he had taken all steps within his means to address the damage caused by him.  To that end he had sold his own motor vehicle and paid $2,500 towards compensation.  He is also paying the balance by monthly instalments.

.he lives with his parents, who are most upset with him.  However, they still support him and he hopes to complete year 12 studies and then undertake a TAFE course in hospitality studies.

.he will need to perform community service to satisfy any fine obligation and is more than willing to do so.

On the hearing of the appeal Mr Mancini, of counsel for the appellant, developed two main themes.

First, he submitted that there was no statutory provision or common law power which authorised the cumulation of periods of disqualification; and that, in any event, section 18A of the Criminal Law (Sentencing) Act, 1988 (“CLSA”) “only empowers a court to impose a single sentence or penalty, that is, one fine and one period of disqualification”.  Having elected to proceed under that section the learned magistrate was bound by the parameters which it created.

Second, he argued that the aggregation of the two periods gave rise to a situation which not only breached the totality principle, but also was, on any view, manifestly excessive bearing in mind the appellant’s personal circumstances, and the facts that:-

..the disqualification period for count 7 was the maximum possible period;  and

..the period for count 5 was four times the minimum period.

He contended that, even given the aggravated circumstances of the offences, the separate disqualification penalties imposed failed to recognise the reality that what was under consideration was, essentially, a single course of conduct as to which the totality principle was of particular relevance.

Distilled to its essence Mr Mancini’s primary contention was that there is no common law power to cumulate periods of licence disqualification.  The Magistrates Court, being a subordinate court created by statute, has no inherent power to do so and the power of disqualification (or duty to disqualify) is, itself, a creature of statute.  Its extent and limits are those stipulated in the relevant statutory provisions related to those topics.  (See Boehm v Milham (1980) 24 SASR 98 at 104.)

In my view that submission is undoubtedly correct.  Mr Nicholas, of counsel for the respondent, sought to derive some comfort from authorities such as The Attorney-General v Tichy (1982) 30 SASR 84 and Selfe v Police (Williams J, 3 March 1997, S6054, unreported) in aid of the proposition that there is a common law power of cumulation.  However, one reads them in vain for any dictum which provides support for the proposition advanced.

Sections 46 (drive at a speed and in a manner dangerous) and 47B (PCA offences) respectively of the Road Traffic Act, 1961 (“the RTA”) each provide for the imposition of a fine and also the mandatory making of an order of disqualification for a stipulated minimum period of time.  It was accepted by the Full Court in Boehm v Milham (supra) that the combination of fine and licence qualification, in their totality, constitute the “penalty” prescribed by each section upon its breach.  (See also King J in Taylor v Samuels (1997) 16 SASR 266 at 281.3, with whom the other members of the Full Court agreed - albeit in relation to section 47 offences.)

Because all of the counts against the appellant were contained in a single complaint it was open to the learned magistrate, by virtue of section 18A of the CLSA to proceed to sentence him “to the one penalty for all or some of” the offences in question, provided that the penalty did not exceed the maximum penalties that could be imposed in respect of each of the offences to which it related.

It is clear that he elected to do so when he stated “I record a conviction on counts 4, 5, 6 and 7 and impose one penalty”.  He then imposed a single, global fine of $1,300.  However, he thereafter proceeded to impose separate cumulative periods of licence disqualification.

Despite Mr Mancini’s argument to the contrary and leaving aside the provisions and potential impact of section 18A of the CLSA, I consider that there is clear statutory power to elect for a cumulation of such periods. Boehm v Milham (supra) stands as positive authority for the proposition that section 169a of the RTA specifically confers such a power.  That is a decision binding upon me and has been applied on many occasions.

However, that power availed the learned magistrate nothing once he made an unqualified election to resort to section 18A of the CLSA in respect of all counts before him.  Such election carried with it a requirement to impose a single penalty, having as its components one global fine and one global period of disqualification.  The section does not authorise a piecemeal application of its provisions so that part of a penalty structure applies to a series of counts, but another portion does not.  To the extent that the section envisages application of its provisions to “all or some” of the offences charged it is simply authorising the possible imposition of a single, global penalty in respect of two or more of a greater number of counts in a summons, but separate penalties in respect of any others.  That is a far cry from what occurred in the present case.

In my opinion Mr Mancini is correct when he declaimed that the learned magistrate fell into error by seeking to impose two separate periods of disqualification in relation to discrete offences after electing to impose a single fine in respect of all.

It therefore falls to me to consider afresh the issue of disqualification.  No one sought to challenge the propriety of the quantum of fine imposed by the learned magistrate.

Mr Mancini submitted that a period of three years’ disqualification was manifestly too much, inter alia, because the incident of 17 August 1997 ought to be seen as a single, indivisible course of conduct.  The court should be careful not to fall for the trap of, in effect, punishing the appellant twice for the same conduct.

There is some superficial attraction in that contention, but I do not feel that it accurately reflects the facts of the instant case.

True it was that there was a single, ongoing course of conduct, but that conduct had a number of incidents.  One was the extremely dangerous overall mode of driving.  Another was the quite separate breach of driving with the prescribed concentration of alcohol.  Both offences separately attracted minimum periods of disqualification.

Mr Mancini is, I think, on somewhat safer ground when he contends that, even so, it is inappropriate, on a proper application of the totality principle, merely to arrive at disqualification periods for each relevant offence, quite separately and in isolation from the other.  It is necessary to arrive at a penalty in this respect which, in its totality, is properly proportionate to the gravity of the overall offending conduct, given that, undoubtedly, that conduct comprised a single, ongoing scenario and the two minimum periods prescribed by the RTA must, logically, be borne in mind.

I am left with the distinct impression that the learned magistrate did not view the situation in that light and, accordingly, failed to pay due regard to the totality principle.

Realistically, the appalling driving on the night in question arose in a situation in which a very young and obviously immature secondary student (who had no prior record of offending) had too much to drink, and then panicked when his conduct attracted police attention.

Given his prior good character, his obvious penitence (as exhibited by his efforts to make good the damage caused) and his cooperation evidenced by an early plea, there is some scope for according him a measure of leniency whilst, at the same time, adequately satisfying the factors of personal and general deterrence.

The appeal will be allowed for the purpose of setting aside the two periods of disqualification imposed.  In lieu there will be a single period of two years, to run from 11 November 1997.