Wagnitz v Police
[2023] SASC 94
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
WAGNITZ v POLICE
[2023] SASC 94
Judgment of the Honourable Justice McDonald
22 June 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
The appellant pleaded guilty in the Magistrates Court sitting at Mount Barker to the offences of driving disqualified, hindering an authorised officer, driving unregistered, driving uninsured, and driving with a defaced number plate. In the commission of these offences, the appellant also breached a good behaviour bond, the terms of which included a sentence of imprisonment of 18 days be suspended for one year on the condition that the appellant be of good behaviour during that period. The Magistrate ordered that the appellant serve that term and imposed a further sentence of 21 days imprisonment and a $500 fine, to be served cumulatively resulting in an overall sentence of 39 days imprisonment.
It is against both sentences that the appellant seeks to appeal, on the basis that the Magistrate erred in revoking the suspended sentence bond, contending that proper grounds existed to excuse the breach, and that the further sentence of 21 days imprisonment was manifestly excessive.
Held, dismissing the appeal, that the Magistrate did not err in finding that there were no proper grounds to excuse the breach, and that the further sentence of 21 days imposed by the Magistrate was not manifestly excessive.
Motor Vehicles Act 1959 (SA) ss 9, 91, 102, 47D; Road Traffic Act 1961 (SA) s 41M; Sentencing Act 2017 (SA) s 114, referred to.
Coombe v Douris (1987) 47 SASR 324; House v King (1936) 55 CLR 499; Lowndes v The Queen (1999) 195 CLR 665; Norman v Lovegrove (1986) 40 SASR 266; Police v Cadd (1997) 69 SASR 150; Police v Chilton (2014) 120 SASR 32; Police v Heritage (2019) 135 SASR 1; Police v Nissen (2014) 120 SASR 50; Police v Peel (2021) 137 SASR 584; R v Buckman (1988) 47 SASR 303; R v Bui (2016) 125 SASR 137; R v Gannon (2009) 103 SASR 398; R v Ossitt [2011] SASCFC 23; R v Smith (2014) 118 SASR 487; R v Smith [2014] SASCFC 98; R v Wilton (1981) 28 SASR 263; Wittwer v Police [2004] SASC 226, considered.
WAGNITZ v POLICE
[2023] SASC 94Magistrates Appeal: Criminal
McDONALD J.
Mr Wagnitz pleaded guilty in the Magistrates Court sitting at Mount Barker to the offences of driving disqualified,[1] hindering an authorised officer,[2] driving unregistered,[3] driving uninsured,[4] and driving with a defaced number plate.[5] In committing these offences Mr Wagnitz also breached a good behaviour bond. The terms of that bond were that a sentence of imprisonment of 18 days was suspended for one year on the condition that Mr Wagnitz be of good behaviour for that period. Mr Wagnitz admitted the breach of that bond and became liable to serve 18 days imprisonment. The Magistrate ordered that Mr Wagnitz serve that term and sentenced him to a further 21 days imprisonment and a $500 fine for the fresh offending. The sentences were made cumulative resulting in an overall sentence of 39 days imprisonment.
[1] Motor Vehicles Act 1959 (SA) s 91(5).
[2] Road Traffic Act 1961 (SA) s 41M.
[3] Motor Vehicles Act 1959 (SA) s 9 (1).
[4] Ibid s 102 (1).
[5] Ibid s 47D(1) (b).
Mr Wagnitz has appealed that sentence on the basis that the Magistrate was in error in revoking the suspended sentence bond. It is contended that the Magistrate should have found that there were proper grounds to excuse the breach. Mr Wagnitz also appeals the imposition of the sentence of 21 days imprisonment as manifestly excessive.
Principles of an appeal against a sentence imposed in the Magistrates Court
This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA). Appeals from a Magistrate to a single Judge of the Supreme Court are by way of rehearing pursuant to r 191.1 of the Joint Criminal Rules 2022 (SA).
In order to interfere with the exercise of a sentencing direction, there must be a demonstrated error of the kind described in House v King.[6] The approach to be adopted was summarised by White J in Wittwer v Police:[7]
The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or if it has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly.
(Citations omitted)
[6] (1936) 55 CLR 499.
[7] [2004] SASC 226 at [16].
The Court will not interfere merely because it would have exercised the sentencing discretion in a different way to the sentencing Magistrate.[8] It is not an appellable error that a Magistrate has placed too much or too little weight on one or more of the applicable sentencing considerations. It is in the very nature of a discretion that different judges will evaluate the relevant considerations in different ways. In Police v Chilton, Kourakis CJ made the following observation:[9]
Over familiarity with the decision in House v King can at times obscure the strictness of the limited ground for the appellate interference it prescribes. The judicial grounds on which a discretion can be set aside are analogous to the grounds of judicial review. Neither the exercise of a judicial discretion, nor the making of an administrative decision are vitiated by giving a relevant matter less or more weight than the judge before whom the decision is impugned would have given to it. The Magistrates Court is a court of Record. Its judgments are final orders. They are not provisional opinions subject to the approval of this Court. The sentences imposed in the Magistrates Court can only be set aside for error in accordance with House v The King.
The twin mischiefs which this court must avoid in sentencing appeals are, on the one hand, too readily imaging error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and rigorous application of, the prescripts in House v The King.
(Citations omitted)
[8] R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665 at [15].
[9] Police v Chilton (2014) 120 SASR 32 at [18]-[19].
The factual basis of the sentence
Before giving consideration to the grounds of appeal it is necessary to understand the basis upon which Mr Wagnitz was sentenced.
The circumstances of the offending
At about 6:30 pm on 28 April 2022 Mr Wagnitz was observed to be riding a motorcycle with the number plates S00ACH on Greenhill Road. He was seen to be manoeuvring in and out of traffic at a speed faster than the speed limit. As a consequence, police pulled him over. Once on the footpath Mr Wagnitz had a brief conservation with police however whilst the police officer was distracted in accessing his computer terminal Mr Wagnitz ran across the road into playing fields.
A chase ensued which involved Mr Wagnitz jumping wire fences however the police were unable to catch up with him.
Checks undertaken established that the registration plate showing S00ACH had been altered from the correct registration S89ACH and that Mr Wagnitz had been disqualified from driving from 2 June 2021 to 1 June 2024.
Following this incident police made numerous unsuccessful attempts to locate Mr Wagnitz. It was only on 13 September 2022 that the police were finally able to apprehend him when he was seen walking along Mount Barker Road in the Stirling area. Upon his arrest the police conducted an interview with Mr Wagnitz. In that interview he admitted that he was the driver of the motorcycle and was aware that he was disqualified from driving.
During sentencing submissions counsel for Mr Wagnitz put to the Court that the reason that he had driven the motorcycle was because he had received a telephone call from his then 15 year old son who had advised that four sheep had escaped from a paddock on the property at which they lived with Mr Wagnitz’s parents. Two had been hit by a truck and two remained on the road. His son told him that he had unsuccessfully attempted to contact his grandparents for assistance. Having received that information and in the heat of the moment Mr Wagnitz decided to ride the motor bike to the property.
No submission was made to the Magistrate about why the number plate on the motorbike had been altered.
Throughout the course of submissions on this appeal Counsel used emotive epithets in describing the reasons for Mr Wagnitz making the decision to drive. Phrases such as “an emergency at the family property”, “a dynamic and unfolding situation… which was posing a significant risk to livestock as well as the lives of other road users” and “a plea from his 15 year old son who was experiencing significant distress and concern for life” were used. With respect to the appellant’s counsel these submissions put an extreme gloss on sheep escaping from a paddock resulting in two being hit by a truck.
Significantly although a general submission was made that “there was not really anyone else that [Mr Wagntiz] could raise at the time, as his son had been attempting to contact his grandparents without success” it was not elaborated upon. Mr Wagnitz presumably had neighbours, were they not able to assist? From the submissions it was clear that he had friends, family and employers, could they not be called upon? Had he attempted to notify the police or the SES who often provide assistance in these sorts of circumstances?
In assessing how urgent and extreme the situation was it is also relevant to consider Mr Wagnitz’s reaction to being pulled over. There is no suggestion that he raised these concerns with police and perhaps requested their assistance in dealing with this unfolding emergency situation but instead he took flight abandoning the motorcycle and effectively remained at large until located by the police some months later.
In making these observations I do not challenge the factual basis of the plea that the Magistrate relied upon but rather consider that these matters are relevant to an assessment as to whether this was a true emergency of the type referred to in the authorities.
A final relevant factual consideration is that it was clearly not intended to be a short drive. Mr Wagnitz’s plan was to drive up to a property at Echunga in the Adelaide Hills presumably via the South Eastern Freeway.
Personal circumstances
The other relevant information before the Magistrate was Mr Wagnitz’s personal circumstances.
Mr Wagnitz was 46 years old at the time of sentencing. He has two sons aged 16 and 19. The younger of the two resides with him and his parents on rural acreage. Mr Wagnitz is employed full time as a renderer. He has previously been employed as a panel beater but has been a renderer for approximately 18 years.
Three character references were provided to the sentencing Magistrate. Each of the authors of the references was aware of Mr Wagnitz’s offending. They describe their observations of him as someone who is hard working, community spirited and genuinely ashamed of having committed these offences.
Mr Wagnitz’s has prior convictions. These are as set out in the table below:
Offence date Offence Penalty 09/11/1998
Driving unregistered
Fine: $30
20/10/2000
Exceed speed limited by 30‑44 km/h
Fail to comply with request to stop vehicle
Fine: $120
08/02/2009
Unlawful possession
Fine: $500
Driving unregistered
Driving uninsured
Fine: $200
Providing a false name
Hinder police
Fine: $300
Cultivate cannabis
Fine: $300
26/11/2017
Drive disqualified
15 days imprisonment suspended on a 6-month good behaviour bond
Driving under the influence of methamphetamine
Fine: $900
3-month licence disqualification
24/04/2020
Cultivate cannabis
Possess cannabis
Possession of prohibited weapon
Possession of a dangerous article
Fine: $1,000
06/05/2021
Driving unauthorised after a drug driving disqualification
Failing to stop
18 days imprisonment suspended on a 12-month good behaviour bond
3-year licence disqualification.
I turn then to consider the grounds of appeal. It is logical and convenient to deal with them in reverse order.
Ground 2 – Manifestly excessive
Central to this ground of appeal is the submission that the Magistrate was in error in describing Mr Wagnitz’s conduct as demonstrating a deliberate disregard for the order of disqualification. The effect of the submissions on this topic was that in so finding the Magistrate placed Mr Wagnitz’s conduct in “the narrow definition of contumacious offending this Court has explained before”.[10]
[10] FDN 5 at [17].
In Police v Cadd,[11] the Full Court (constituted of five Judges) was required to consider the question of the proper approach to be taken in sentencing offenders convicted for driving a motor vehicle while disqualified from holding or obtaining a driving licence. The Court was divided on the issues raised on the appeal. In an addendum judgment Doyle CJ attempted to provide some clarity and some authoritative guidelines to the Magistracy on the approach to be taken when sentencing for this offence. In that context, his Honour said the following:[12]
Nevertheless, each member of the majority accepts, as Mullighan J says, that the punishment should be imprisonment “in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment….” Mullighan J goes on to explain what he means by that. Two members of the majority (Doyle CJ and Duggan J) would go further than Mullighan J. But the approach of Mulligan J is common to all three judgments.
That approach, therefore, commands majority support from the court and should be followed by Magistrates and in appeals from Magistrates.
[11] (1997) 69 SASR 150.
[12] Ibid at 171.
In Police v Nissen,[13] Kourakis CJ expressed the view that this passage was an attempt by Doyle CJ to identify a minimum position in the judgments of the majority in that case given the differences between them. Kourakis CJ went on to say:[14]
… It most certainly does not elevate a finding of contumacy to a necessary precondition to a sentence of imprisonment… Moreover the addendum sets that minimum for the guidance of Magistrates. It is not the ratio of the decision and is not the only proposition for which Cadd is authority. Given the restrictive definition of ‘contumacious’ proffered by Mulligan J, that minimum standard will apply to very few cases because there are very few disqualified persons who continue to drive precisely as they did before the orders were made. An order for disqualification will usually moderate a defendant’s driving behaviour at least to some extent. However, as I have already observed, any disregard for orders of disqualification must be deterred. It is not for the subject of the order for disqualification to judge when his or her personal circumstances justify a refusal to comply with a judicial, legislative or administrative order.
The identification and the minimum position for contumacious offenders leaves the sentencing of offenders generally to be determined in accordance with sentencing principles. Those principles are correctly identified in the judgments of Doyle CJ and Duggan J. They can be summarised as follows.
The financial and human cost of personal injury and property damage caused by traffic offences weighs heavily on the community. The most effective measure for deterring serious and persistent traffic offenders and thereby protecting the public are licence disqualifications and suspensions. As King CJ observed in Coombe v Douris,[15] those orders are ineffective if they are generally disregarded. Driving in contravention of a licence disqualification or suspension is difficult to detect and, for that reason, it is critical that when an offender is apprehended the disqualification and suspension orders are strongly enforced.
The feature of an offence of driving whilst disqualified from holding a licence, or whilst a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving whilst holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender’s personal circumstances.
The measure of an offender’s attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach.
It can generally be inferred that a person who drives when disqualified, or whilst holding a suspended licence, after having been convicted of an earlier offence, has a contempt for or, at least, a dismissive attitude to orders of disqualification or suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence.
It follows that, as a matter of principle, sentences of immediate imprisonment will often be justified in the case of first offenders who show little regard for orders of disqualification or suspension. As for repeat offenders like the appellant, it is difficult to contemplate circumstances which, consistently with the matters of general principle to which I have referred, would justify a non‑custodial sentence.
(Emphasis added, footnote in original)
[13] (2014) 120 SASR 50.
[14] Ibid at [24]-[30].
[15] (1987) 47 SASR 324 at 325.
In Police v Chilton,[16] a judgment handed down on the same day as Nissen, Kourakis CJ expressed a view about the lack of utility of an approach focussed on whether conduct can be categorised as contumacious. His Honour said:[17]
The emphasis on the binary classification of offences of drive disqualified as either contumacious or not is unfortunate.
[16] (2014) 120 SASR 32.
[17] Ibid at [14].
Kourakis CJ went on to make some further observations about the addendum judgment of Doyle CJ in Cadd:[18]
The addendum to the judgment of Doyle CJ in Cadd was meant as a simple rule of thumb. However, the distinction between contumacious and non-contumacious offending on which it is founded has been overlaboured. The point of the addendum was to give guidance to Magistrate to the effect that in the narrow band of contumacious offending, as defined by Mullighan J, imprisonment should ordinarily be imposed. However, in sentencing for offences of this kind more generally, it is the attitude of the offender to the order of disqualification, as shown by the circumstances of, and the reasons for the offending which is significant. The culpability of the offender and relative weight which should be given to punishment and personal and general deterrence will be much affected by that attitude for the reasons that I recently gave in Police v Nissen.
(Footnote omitted)
[18] Ibid at [15].
In this case the Magistrate did not attempt to go down the fraught path of determining whether Mr Wagnitz’s conduct fell within the narrow band of contumacious offending. I reject the submission by the counsel for the appellant that a finding that the driving was in deliberate disregard of the order for disqualification that had been imposed equated with a finding that the conduct was contumacious. It was open for the Magistrate to find that the conduct was in deliberate disregard of the order. Mr Wagnitz knew of the order and he chose to disregard it.
Further this was not the first time that he had committed the offence of driving disqualified. In 2017 Mr Wagnitz had been sentenced to 15 days imprisonment which was suspended upon him entering into a good behaviour bond for committing the very same offence. In 2021, he was sentenced to 18 days imprisonment for the offence of driving unauthorised after a drug driving disqualification. He again received the benefit of a suspended sentence. Mr Wagnitz was on notice of the consequences of his conduct.
A further relevant factor in the assessment of Mr Wagnitz’s culpability is that at the time of the most recent offences Mr Wagnitz was still on the 2021 suspended sentence good behaviour bond.
The circumstances in which Mr Wagnitz came before the Magistrates Court points strongly towards the need for a sentence of imprisonment. In terms of the length of the sentence it cannot be suggested that a sentence of 21 days falls outside of the range of appropriate sentences for offences of this nature. I also place some weight on the observation made by Lander J in Cadd that:[19]
… [i]n the end the appropriate penalty will be a matter for the good sense of the sentencing Magistrate, who has the advantage of experience in dealing with persons who offend by driving whilst disqualified.
[19] Police v Cadd (1997) 69 SASR 150 at 201.
The sentencing Magistrate is a very experienced Magistrate who is, in many respects, better placed than I to determine where this sentence of 21 days sits with sentences for other comparable offending.
This ground has not been made out. The sentence is not manifestly excessive.
Ground 1 – Proper grounds
Mr Wagnitz has admitted breaching the good behaviour bond. It follows that he is liable to serve 18 days imprisonment unless he can establish the existence of proper grounds to excuse the breach pursuant to s 114(1) of the Sentencing Act 2017 (SA). The relevant provisions in that section read:
114–Orders that court may make on breach of bond
(1)If the court is satisfied that the probationer has failed to comply with a condition of the bond the court –
(a) may, if the bond requires the probationer to pay a sum in the event of non-compliance with a condition of the bond, order the probationer to pay the whole or a part of that sum; or
(b) may order a guarantor to pay the whole or a part of the amount due under the guarantee; or
(c) may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii)if the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds on which the failure should be excused, refrain from taking any action in respect of the failure; or
(d) if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended – must, subject to subsection (3) revoke the suspension and order that the sentence be carried into effect.
(2)The court may not order a person to pay an amount pursuant to subsection (1)(a) unless the court is satisfied that—
(a) the person has, or will within a reasonable time have, the means to pay the amount; and
(b) payment of the amount would not unduly prejudice the welfare of dependants of the person.
(3)If a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds on which the failure should be excused, the court may refrain from revoking the suspension and –
(a) in the case of a bond requiring performance of community service—may—
(i)extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or
(ii)extend the period within which any uncompleted hours of community service must be performed by not more than 6 months; or (iii) if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted hours of community service must be performed; or
(iii)if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted hours of community service must be performed; or
(iv)cancel the whole or a number of any unperformed hours of community service; or
(v)revoke or vary any other condition of the bond; and
(b) in the case of any other bond—may—
(i)extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or
(ii)impose a condition on the bond requiring the probationer to perform a specified number of hours of community service; or
(iii)revoke or vary any other condition of the bond; and
(c) if the bond has expired in any case—may require the probationer to enter into a further bond, the term of which must not exceed 12 months.
(4)Section 105 applies in relation to a bond in respect of which a condition requiring the performance of community service is imposed under subsection (3)(b)(ii).
(5)If a court revokes the suspension of a sentence of imprisonment, the court may make any of the following orders:
(a) if it considers that there are special circumstances justifying it in so doing—an order reducing the term of the suspended sentence;
(b) an order directing that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(c) in the case of a probationer whose sentence of imprisonment was partially suspended under section 96(5) and even if the term of the sentence now to be served in custody is less than 12 months—an order fixing or extending a non-parole period taking into account the time spent in custody by the probationer before being released on the bond;
(e) an order directing that—
(i)in the case of a sentence partially suspended under section 96(4) or (5)—any part of the sentence that the probationer has not served in custody; or
(ii)in any other case—the suspended sentence, be cumulative on another sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(6)If a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.
In this matter there is no suggestion that the breaching offence was trivial, such that the Magistrate could, on that basis, excuse the breach. The only issue under consideration was whether there were ‘proper grounds’ for the Magistrate to refrain from taking any action in relation to the suspension of the term of imprisonment.
There has been much judicial consideration of what may amount to proper grounds to excuse a breach of a good behaviour bond. It has been authoritatively decided by this Court that those grounds are confined to the nature and the circumstances of the breach; they do not extend to the personal circumstances of the offender or to the circumstances occurring after the breach.[20]
[20] Norman v Lovegrove (1986) 40 SASR 266 at 267 (per Prior J, with whom King CJ agreed); at 271-272 (per Olsson J, with whom King CJ and Prior J agreed); R v Buckman (1988) 47 SASR 303 at 304 (per King CJ); at 307 (per Jacobs J, with whom King CJ agreed); R v Gannon (2009) 103 SASR 398 at [31]; R v Ossitt [2011] SASCFC 23 at [30]; R v Smith (2014) 118 SASR 487 at [70] (per Blue J, with whom Nicholson J agreed); R v Smith [2014] SASCFC 98 at [25] (per Kourakis CJ, with whom Vanstone and Blue JJ agreed); R v Bui (2016) 125 SASR 137 at [60], [66] (per Kelly, Blue and Nicholson JJ).
The approach to be adopted by the Court in considering whether proper grounds exist involves firstly a consideration of the nature of the breach and the circumstances in which it was committed. This includes factors relating to the breach itself and to the circumstances existing at the time of the offence which bear on the culpability of the offender in committing the offence which involves a consideration of the offender’s state of mind and any history of similar offending.[21]
[21] R v Buckman (1998) 47 SASR 303 at 308; Police v Heritage (2019) 135 SASR 1 at [31]; Police v Peel (2021) 137 SASR 584.
The Court must also consider the question of any disproportionality between the nature and extent of the breach and the severity of the consequences of revoking the suspension and requiring the original sentence to be served.[22]
[22] Police v Peel (2021) 137 SASR 584 at [28] (per Doyle J).
In determining that there were no proper grounds to excuse the breach the Magistrate relied on Mr Wagnitz’s deliberate disregard for the order of disqualification that had been imposed. He went on to say:[23]
… orders for disqualification form an important part of the system for road safety. People do not commit road traffic offences because they know that if they do, they will be disqualified, and it undermines that important sanction if orders for disqualification are not enforced.
[23] Sentencing remarks of Magistrate Fisher (MCCRM-22-009371 & MCCRM-22-008852).
In determining the question of the existence of proper grounds the Magistrate also took into account that this was the third occasion on which Mr Wagnitz had ignored a court order that prohibited him from driving.
Although the Magistrate did not expressly consider the question of proportionality it cannot reasonably be suggested that the consequences were disproportionate to the breaching conduct. It was offending of the very same type for which Mr Wagnitz was on the good behaviour bond.
This ground has not been established. The Magistrate did not err in finding that there were no proper grounds to excuse the breach.
Order
1.The appeal is dismissed.
0
18
0