W, NJ v Police - [2009] SASC 269

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
W, NJ v POLICE
[2009] SASC 269
Judgment of The Honourable Justice Sulan
3 September 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS - FIRST OFFENDERS AND JUVENILE OFFENDERS
Appeal against sentence - appellant pleaded guilty to offences of driving while disqualified contrary to s 91 Motor Vehicles Act 1959 (SA) and to failing to give way to an oncoming vehicle at traffic lights, contrary to r 62(c) of the Australian Road Rules - Magistrate sentenced appellant to 14 days' detention, suspended upon her entering into six-month good behaviour bond for the offence of driving whilst disqualified - appellant a first offender - whether sentence manifestly excessive - whether Magistrate erred in characterising offending as contumacious - consideration of personal circumstances of appellant - consideration of factors relevant in sentencing youths - consideration of factors relevant in sentencing offenders suffering from psychological or psychiatric condition.
Held: Appeal allowed - sentence of Magistrate set aside - offending could not be characterised as contumacious in circumstances.
Motor Vehicles Act 1959 (SA) s 91; Young Offenders Act 1993 (SA) s 3; Criminal Law (Sentencing) Act 1988 (SA) s 3A, referred to.
Police v Cadd & Ors (1997) 69 SASR 150; Johns v Police (Unreported, 24 June 1998, Judgment No. S6729); Valentincic v Police (Unreported, 4 December 1997, Judgment No. S6521; Bates v Police (1997) 70 SASR 66; Harshazi v Police (1998) 71 SASR 316; Sheean v Police (1996) 106 A Crim R 38; Nash v Police [2009] SASC 112; Hendy v Police (2008) 256 LSJS 30; Schulze v S (1995) 180 LSJS 371; TCN v Police [2002] SASC 409; R v Tomlinson [2007] SASC 222, considered.

W, NJ v POLICE
[2009] SASC 269
Magistrates Appeal
SULAN J.
Introduction

This is an appeal against sentence.
On 14 August 2008, the appellant drove a motor vehicle whilst she was disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the Motor Vehicles Act 1959 (SA). The maximum penalty for the offence is six months’ imprisonment for a first offence and two years’ imprisonment for a subsequent offence. The appellant was also charged with failing to give way to an oncoming vehicle at traffic lights, contrary to r 62(c) of the Australian Road Rules.
At the time of the offending, the appellant was disqualified from holding or obtaining a driver’s licence, pursuant to an order against her learner’s permit imposed by the Registrar of Motor Vehicles. The appellant is a first offender.
Turning to the subject matter of this appeal. On 14 August 2008, at about 12.42 am, the appellant was turning right from Torrens Road into South Road at Croydon when she failed to give way to an oncoming vehicle. The appellant was driving to a takeaway food outlet to purchase food. The appellant was 17 years of age at the time of the offending.
The appellant pleaded guilty to the two offences in the Youth Court. The appellant was sentenced to 14 days’ detention, suspended upon her entering into a six-month good behaviour bond for the offence of driving whilst disqualified. It is a condition of the bond that the appellant be under the supervision of an officer of Families SA. No conviction was recorded in respect of the offence of failing to give way, which was dismissed without penalty.
The appellant’s submission
The appellant complains that the sentence is manifestly excessive, and that the Magistrate erred in characterising the offending as contumacious. Her counsel submits that the Magistrate erred in not giving sufficient weight to the appellant’s age, background, mental health and the fact that she was a first offender. Counsel submits that considerations of personal and general deterrence are of little or no relevance in sentencing offenders suffering from some form of psychological or psychiatric distress and, further, that considerations of general deterrence are not relevant in the Youth Court. It is submitted that the effect of a sentence of imprisonment, albeit suspended, is crushing and not beneficial in the circumstances of the appellant. Counsel for the appellant further submits that a fine is an appropriate penalty.
Counsel for the appellant seeks to rely on a psychological report of Mr Allen Fugler, dated 23 July 2009, which was obtained after the appellant had been sentenced by the Magistrate. The appellant sought leave to tender the report. Counsel for the Crown consented to the application.
I have had regard to the report of Mr Fugler, which outlines the appellant’s background and personal circumstances in considerable detail. The report provides an insight into the appellant’s mental state, and assists in explaining her conduct.
The appellant’s mental health
The appellant suffers from a chronic post-traumatic stress disorder, resulting from her having been raped when she was about 14 years of age. The Magistrate observed:
You knew you were disqualified and that you shouldn’t be driving. You, through your counsel I’m told, are still suffering the effects of a rape which occurred in 2005; sadly you have not had any counselling or support to help you deal with what must have been a dreadful, dreadful experience. I do hope in the future that you listen to your mother whom I expect has been hoping [sic]. Listen to what mum has to say. Do you think you might move along? It’s very difficult to move forward from a situation like this all on your own and obviously you’re having some difficulties because with your driving, I’m told by your counsel that you freeze in certain circumstances, you absolutely freeze [sic]. Well, heaven only knows in what other situations that could occur and you must learn to deal with it.
At the age of 14, the appellant was accosted and raped by seven men in the vicinity of the Rosewater Railway Station. Three offenders held her down, one of whom held a knife to her throat whilst others sexually assaulted her. At the time of the rape, the appellant believed that she would be murdered. Two months after the rape, she attempted suicide.
The appellant has been severely psychologically affected by her previous ordeal. She has attributed blame to herself for the rape, because she was alone near a train station at night. Following the rape, the appellant ceased regular contact with her family and friends. She left home. She has experienced visual recollections since the rape. These are associated with anxiety, physiological hpyerarousal and a feeling of “panic”. She continues to experience difficulties blocking out thoughts of the rape. The appellant has developed a strong fear of walking and going out alone at night.
The appellant has very low self-esteem. As a consequence, she is unconcerned for her personal welfare. She suffers mood swings and irritability. She has a sleeping disorder. After the rape, her academic performance suffered. She ceased her part-time job. She began to experiment with alcohol and drugs, such as ecstasy and methylamphetamine, in order to relieve her feelings of distress. She has abstained from drug abuse since January 2009.
Mr Fugler observed that the appellant has not been able to resolve her grief from the recent death of her father. The appellant’s low level of psychological functioning has interfered with her ability to deal appropriately with loss. Mr Fugler is of the view that the appellant’s psychological condition and personal circumstances are causally related to her offending.
Mr Fugler concluded that the appellant should be referred to an experienced practitioner specialising in the treatment of stress disorders and sexual assault to assist her in resolving the trauma associated with the rape and grief relating to the recent death of her father. Counsel for the appellant informed me that Families SA is able to refer the appellant to a specialist counselling service for victims of rape and sexual assault. If she receives appropriate treatment, the appellant has good prospects of returning to more normal functioning and participation in ordinary activities.
Other matters
The appellant is currently undertaking studies at a suburban TAFE college. She has obtained stable part-time employment, in which she is expected to work shifts at night. The appellant, who has obtained her provisional driver’s licence since the date of the offending, needs to be able to drive in order to attend these commitments.
The Magistrate, in sentencing the appellant to a suspended term of imprisonment, did not disqualify the appellant from holding or obtaining a driver’s licence. Counsel for the appellant submits that the Court should not now suspend her driver’s licence, given her personal circumstances, and the fact that she has continued to drive and is now driving as a “P” plate driver.
Contumacious conduct
The Magistrate observed:
You were driving because you wanted to get some food. You knew you were disqualified. You knew that you have a condition which sometimes causes you difficulties. All of those things were well known to you and you chose to go out and get food. I’m satisfied that in all the circumstances, the driving was contumacious and I’m satisfied that a period of detention should be imposed.
Counsel for the appellant contends that the offending was not contumacious. Contumacious offending means conduct which displays a flagrant disregard for the disqualification in force.[1]
[1]    Police v Cadd & Ors (1997) 69 SASR 150, 169.
In Police v Cadd, Mulligan J said[2]
… I use the word “contumacious” in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at 542-543. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. …
In Johns v Police,[3] Lander J observed:[4]
… If the driving exhibits an attitude of defiance then that would usually amount to contumacy and may call for a sentence of imprisonment.
To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance …
In Valentincic v Police,[5] Olsson J said that driving will be held to be contumacious where there has been:[6]
… 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 …
[2] (1997) 69 SASR 150, 179.
[3]    Unreported, 24 June 1998, Judgment No. S6729.
[4]    Ibid, 7.
[5]    Unreported, 4 December 1997, Judgment No. S6521.
[6]    Ibid, 4.
In Bates v Police,[7] Perry J considered that, for conduct to be contumacious, it must involve some element of defiance over and above being merely wilful. He said:[8]
Be that as it may, I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.
[7] (1997) 70 SASR 66.
[8] Ibid, 73.
In Harshazi v Police,[9] Mullighan J considered that Perry J’s approach in Bates was too restrictive. He said:[10]
… The offending may not be contumacious even though the driving is over more than a short distance and in circumstances which do not involve an emergency or duress. The present case is an example. The offending was foolish, not contumacious. If the meaning of contumacious in the present context was defined in that way as to exclude only very few types of cases from its reach, there would be a very different sentencing standard than that expressed by the majority in Cadd.
[9] (1998) 71 SASR 316.
[10] Ibid, 320.
In Sheean v Police,[11] Perry J referred to his decision in Bates and made it plain that his views in Bates were not intended to detract from the majority’s views in Cadd. He said:[12]
In Bates, I was simply endeavouring to indicate my view of circumstances which might ordinarily be regarded as “contumacious” for the purposes of the principle expounded in Cadd. In that respect, I remain of the view which I expressed in Bates, namely, that the necessary element of defiance may properly be found to exist if the evidence discloses a deliberate act of driving by a person who well knows that he or she is disqualified from driving, which is a significant act of driving in the sense that it involves a more than momentary passage or episode of driving, and “is not ameliorated by reference to circumstances such as an emergency or some other form of duress”. I have emphasised the words “such as” to make it plain that I was not suggesting that the particular circumstances of emergency or duress were to be taken as exhaustive. Other circumstances may well serve to ameliorate the seriousness of the passage of driving, so that it might then cease to be “contumacious” in the relevant sense.
Defiance is, after all, an attitude of mind. Its existence is hardly likely to be proved by direct evidence, as opposed to drawing an inference from the facts and circumstances surrounding the commission of the offence. My observations in Bates were intended to suggest that the circumstances which I there postulate should normally lead to the necessary inference being drawn.
I make it plain, therefore, that the observations which I made in Bates, with the qualification to which I have adverted, were not intended to detract from the authority of the approach in the majority in Cadd.
[11] (1999) 106 A Crim R 38.
[12] Ibid, 41-2, [15] – [17].
In Nash v Police,[13] Doyle CJ considered it unnecessary to resolve the differences in the views of Mullighan J and Perry J to which I have referred. Insofar as there is a divergence of views, I prefer the approach of Mullighan J. I consider that, for offending to be contumacious, it must exhibit an attitude of defiance. There are many circumstances in which an offender can be said not to have exhibited the necessary mental attitude to satisfy the characterisation of their conduct as contumacious. It is not possible to contemplate every such circumstance. However, one factor which is relevant in considering whether conduct is contumacious is the mental state of the offender at the time.
[13] [2009] SASC 112.
In Hendy v Police,[14] the appellant, who had little support, had been sexually assaulted on public transport as an adolescent. As a consequence, she developed a fear of public transport and going out alone. With respect to the personal circumstances of the appellant, Kelly J observed:[15]
Although the magistrate commented that there were other alternatives available, in the end she agreed that the obvious alternative of catching public transport was not open to the appellant. The magistrate accepted that the appellant had a psychological problem preventing her from catching public transport as a result of a sexual assault upon her as a young child while on a bus.
…
Even accepting that the magistrate may have had reservations about some of the submissions which were put to her, there does not seem to be any doubt that she accepted that the appellant believed it was necessary to drive and pick her four young children up from school. She stated that she did so because her partner was too ill to drive, that she had no family or friends to call upon, and she had psychological issues associated with travelling on public transport.
On the basis of those facts, I respectfully disagree that the material before the magistrate enabled her to make a positive finding that those circumstances amounted to contumacious driving in the sense explained by Mullighan J in Cadd. The fact that the police who stopped the appellant on the date in question, thereupon went with the appellant to pick up the children from the school, underscores the genuineness of the appellant’s instructions about the circumstances which confronted her on that day.
[14] (2008) 256 LSJS 30.
[15] Ibid, 4, [22], [24] – [25].
In concluding that the appellant’s conduct was contumacious, the Magistrate stated that the appellant knew she had been disqualified from driving. The appellant knew she had a psychological condition. Nevertheless, chose to drive to get food.
The Magistrate did not have the benefit of the opinion of Mr Fugler, who has diagnosed the appellant as suffering from a post-traumatic stress disorder, which has had an effect upon her behaviour, and has resulted in a low level of psychological functioning. The appellant’s psychological condition is a relevant factor in determining whether her conduct was contumacious.
Although she understood that she was disqualified from driving, the appellant’s fear of being alone in the street at night, her response to stressful situations, and her psychological profile is such that her conduct is not to be regarded as contumacious. The Magistrate was in error in concluding that the appellant’s conduct was contumacious.
General and personal deterrence
In considering the appropriate sentence for the offences of driving whilst disqualified, in the case of an adult offender, general and personal deterrence are a significant factor. However, in the case of a youth who is sentenced pursuant to the Young Offenders Act 1993, that Act prevails over the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act), insofar as there may be any conflict between them.[16]
[16] Section 3A of the Sentencing Act provides:
3A – Application of Act to youths
(1)Subject to any provisions of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.
(2)However, in the event of conflict between a provision of this Act and a provision of the Young Offenders Act 1993 or the Youth Court Act 1993, the latter provisions prevail to the extent of that conflict.
In the case of offenders who are sentenced pursuant to the Young Offenders Act 1993 (SA), different considerations apply when considering personal and general deterrence.
In Schulze v S,[17] the Full Court considered whether general deterrence was relevant in sentencing young offenders, pursuant to the Young Offenders Act. Cox J, with whom Mullighan J agreed, considered that, in the case of young offenders, the reference to deterrence in the Young Offenders Act 1993, was confined to personal deterrence.
[17] (1995) 180 LSJS 371.
Section 3 of the Young Offenders Act 1993 was amended in 1996. The amended section states that general deterrence is not a relevant consideration when sentencing a young offender.
Section 3 now reads:
3 – Objects and statutory policies
(1)     The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.
(2)     The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:
(a)a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
(c)the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a)   In imposing sanctions on a youth for illegal conduct –
(a)regard should be made to the deterrent effect any proposed sanction may have on the youth; and
(b)if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth’s conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to –
(i)the deterrent effect any proposed sanction may have on other youths; and
(ii)the balance to be achieved between –
(A)    the protection of the community; and
(B)    the need to rehabilitate the youth.
(3)     Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a)compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b)family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;
(c)a youth should not be withdrawn unnecessarily from the youth’s family environment;
(d)there should be no unnecessary interruption of a youth’s education or employment;
(e)a youth’s sense of racial, ethnic or cultural identity should not be impaired. (Highlighting is mine)

The reference in s 3(2a)(b) to the requirement that when a youth is sentenced as an adult, regard should be had to the detrimental effect any proposed sanction may have on other youths is to be contrasted with sub-s (2a)(a) which refers to the deterrent effect on the offender only when dealing with the offender as a youth.
I agree with the observations of Nyland J in TCN v Police.[18] Her Honour said:
Of particular significance, however, are the provisions of s 3(2)(a) of the Young Offenders Act 1993. That section provides that the concept of general deterrence is to be excluded from the sentencing process when a youth is sentenced pursuant to the provisions of the Act. …
In re-sentencing the appellant, I have not had regard to general deterrence.
[18] [2002] SASC 409, [13]. See also: AVK v Police (2002) 135 A Crim R 1, 8 [44].
As to personal deterrence, for a person such as the appellant who suffers from a mental illness, I refer to my judgment in R v Tomlinson[19] (with which Bleby J agreed):
The relevance and weight to be given to general and personal deterrence will vary from case to case. However, in circumstances which a person’s mental illness is causative of his offending, that is a feature which lessens the importance of general and personal deterrence in the sentencing process. This is particularly so if the person’s mental illness has not been diagnosed or if there has been a failure to treat or address properly a person’s mental illness.
[19] [2007] SASC 222, [52].
Conclusion
This was the appellant’s first offence. In my view, a sentence of detention, albeit suspended, is not appropriate, having regard to the appellant’s age, background and, in particular, her psychological condition. The threat of an order for detention in the case of this appellant places an unnecessary burden upon the appellant and her family, having regard to her psychological profile.
I would allow the appeal. The sentence imposed by the Magistrate is set aside. In lieu thereof, the appellant is to enter into a bond to be of good behaviour for 12 months upon conditions that she:
(1)come up for sentence if called upon;
(2)be under the supervision of an officer of the Department of Families SA and undergo counselling, or psychological or psychiatric treatment, as directed by that officer;
(3)participate in any programs, projects or activities as directed by the supervising officer.