Wait v Police No. Scgrg-99-234 Judgment No. S192

[1999] SASC 192

WAIT  v  POLICE
[1999] SASC 192

Magistrates Appeal
Nyland J

1. This is an appeal against sentence.  The appellant (hereinafter referred to as “the defendant”) was charged on complaint with four driving offences.  It was alleged that on 9 October 1998 at Seaford Rise he drove a vehicle, namely a car, on a road, namely Main South Road:

   1....... whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle;

   2.while there was present in his blood the prescribed concentration of alcohol as defined in s47a of the Road Traffic Act 1961;

   3.     while he was disqualified from holding a licence; and

   4.     without due care.

2. The defendant appeared before a stipendiary magistrate at the Christies Beach Magistrates Court on 17 February 1999 at which time he was represented by Ms Barnett of counsel.  The defendant pleaded guilty to counts 1, 3 and 4 of the complaint, following which count 2 was withdrawn.

3. The circumstances giving rise to the charges against the defendant are set out in the affidavit of Stephen Hawkins, the police prosecutor.  He told the court that at about 10 pm on 9 October 1998, police were travelling north on Main South Road at Seaford Rise.  They saw the defendant driving a Sigma station wagon on the same road about 50 metres in front of the police vehicle travelling in the same direction.  The defendant’s vehicle was swerving from the far left of the dual lane carriageway, putting the driver’s side wheels over the centre broken line of the road until an oncoming vehicle approached.  The defendant’s vehicle crossed the broken line for a duration of about 50 metres, doing so on several occasions.

4. The vehicle was stopped and the defendant alighted from the vehicle, staggering toward the police.  Police speaking with the defendant noticed slurred speech and a strong smell of liquor and formed the opinion that the defendant had driven under the influence of alcohol.  The breath analysis result of 0.174 supported the driving under the influence of alcohol charge.  The defendant stated that he had been drinking at a friend’s place, that he had not held a licence for years and that he would not answer any more questions.  The defendant had been disqualified from driving by an order of the Port Adelaide Magistrates Court made on 10 November 1995.

5. The criminal record tendered by the prosecutor disclosed an extensive history of offending which included four prior convictions for driving while disqualified. 

6. Ms Barnett then made submissions in mitigation of penalty.  She told the court that the defendant was aged 37 years.  He was born in England and his family immigrated to Australia in 1963.  He was educated at a number of primary schools, leaving school after completing year 10 to take up employment at Pool Constructions.  He remained employed at Pool Constructions for six months before the company was declared insolvent.  Thereafter he was employed at Metro Meats and Tile Art Roofing.  For the most part the defendant had done labouring and construction type work.  In more recent years the defendant had been unemployed due to lack of a driving licence.  He was currently on unemployment benefits which caused him to be both humiliated and depressed.  He received an income of $160 per week and paid rent of $35 per week.  Ms Barnett said that the defendant was diagnosed as suffering from alcoholism by the Elura Clinic in 1995 and more recently from depression.  He first commenced drinking at the age of 15 on a social basis, this having been exacerbated by guilt over his offending and depression stemming from lack of employment.  She said that he was currently in a stable relationship of some three years and that it was the support of his partner which had prevented him from sustaining more serious self-destruction.  In relation to the offence Ms Barnett told the court that she was instructed that the defendant had been repairing his sister’s car at a friend’s premises.  His emotional state was so low that he began crying and could not stop.  He described that point of his life as the lowest he had ever felt.  He began to drink and became intoxicated and it was at that point that he attempted to drive the car to his own premises.

7. As part of her submissions, Ms Barnett provided the court with a psychological report prepared by Mr Fugler, a forensic psychologist.  That report confirms that the defendant first began using alcohol at the age of 15 and thereafter exhibited a steady pattern of drinking behaviour.  Mr Fugler reports that the defendant’s guilt over a conviction for manslaughter in 1991 resulted in a greater dependence on alcohol.  Mr Fugler expresses the opinion that the defendant is an alcoholic and refers to the diagnosis to that effect from the Elura Clinic in 1995.  At that time the defendant’s driver’s licence was suspended indefinitely.  Mr Fugler goes on to say that the defendant has periods “where concern for his welfare and the consequences of illegal behaviour is absent”.  Mr Fugler concludes that

   “Unless immediate and sustained treatment occurs for both ... alcoholism and depression he is likely to have a gloomy prognosis, not only in relation to offending behaviour and imprisonment, but also in terms of longevity. ... A considerable amount of responsibility rests with [the defendant] to initiate treatment, although without professional assistance to relieve his depressed state [the defendant’s] low levels of energy and motivation are likely to negatively interfere with his ability to take the appropriate action.”

8. Ms Barnett urged the magistrate not to impose an immediate term of imprisonment for the offence which she submitted was “clearly not contumacious”.  She asked the court to take into account the plea of guilty, and that the defendant was suffering from an illness for which he was willing to seek help.  He was currently residing in a Housing Trust residence and if he received a term of imprisonment of over six months it was likely that he would be evicted from those premises. 

9. The magistrate rejected those submissions.  He indicated that in his view there was only one penalty that could be imposed and that was immediate imprisonment.  He then sentenced the defendant to be imprisoned for a period of six months with respect to the charge of driving under the influence.  He said that he appreciated that this was the “maximum period of imprisonment for a drive under the influence charge but that is somewhat academic given the penalty I propose on count three”.  He then disqualified the defendant from driving until further order.  On the charge of drive while disqualified he ordered imprisonment for a period of six months to be served concurrently with that imposed for the driving under the influence charge.  He imposed a fine of $200 with respect to the charge of driving without due care.

10. The defendant now appeals against the sentence on the grounds that:

    1.     the sentence imposed was manifestly excessive;

    2....... in all of the circumstances the sentences should have been suspended.

11. At the hearing of the appeal the defendant was represented by Mr Petraccaro of counsel. Ms Olsson appeared for the respondent. The first criticism levelled against the learned magistrate relates to the penalty imposed for the charge of driving while under the influence. This was the defendant’s third conviction for this particular offence. In 1991 he received penalty by way of a fine. In 1995 he received a total sentence of four months (which included the penalty for a charge of driving under disqualification and failing to truly answer questions). Obviously, therefore, as a matter of deterrence this present offence called for the imposition of a severe penalty. Nevertheless, it is difficult to see the basis upon which it was appropriate to impose the maximum penalty. The magistrate, in his sentencing remarks, appears to have justified the imposition of the maximum penalty by reference to the penalty he was about to impose with respect to the charge of driving disqualified. That, however, was an error. It was necessary for the magistrate to consider the penalty with respect to each of these offences quite separately and then, having determined those sentences, decide whether to make them cumulative or concurrent. Even if the magistrate was purporting to impose a single sentence pursuant to s18A of the Criminal Law (Sentencing) Act 1988, it was still necessary for him to consider the sentence that was appropriate to each separate offence before deciding whether they should be concurrent or cumulative: (see R v Major (1998) 70 SASR 488).

12. The magistrate has therefore erred in setting the term of imprisonment with respect to the driving under the influence charge by reference to the sentence he was about to impose for the charge of drive disqualified.  The sentencing discretion has therefore miscarried with respect to this penalty.  In my opinion, a sentence of four months imprisonment was appropriate.  I now turn to the drive disqualified offence.  Most of the submissions on appeal were, in fact, directed to the sentence imposed with respect to this offence.

13. The standard for sentencing for offences of drive disqualified is now that set out in Police v Cadd (1997) 69 SASR 150. Mr Petraccaro referred to the comments of Mullighan J (at 178-179):

    “I think there should be a standard ... given the seriousness of the offence and its apparent prevalence.

    That standard, accepting these matters and giving appropriate emphasis to general deterrence 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 such as a substantial fine or community service in the appropriate case.  I use the word ‘contumacious’ in the sense that it is understood in the law:  see Witham v Holloway (1995) 183 CLR 525 at 542-3. 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 other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in ss10 and 11 of the Criminal Law (Sentencing) Act and established sentencing principles are sufficient further guide to the sentencer. 

    If the circumstances dictate that the sentence must be imprisonment, the length of the term must also be determined by the circumstances of both the offence and the offender.  Also, it will then be necessary to consider suspending the sentence.  It is well accepted that a suspended sentence of imprisonment is nonetheless a sentence of imprisonment and is a very significant punishment:  Wood v Samuels (1974) 8 SASR 465 at 468 per Walters J and Elliott v Harris (No 2) (1976) 13 SASR 516 per Bray CJ at 527. Pursuant to s38 of the Act, the sentence of imprisonment may be suspended if the court ‘thinks that good reason exists for doing so’. Such reason may be found in the circumstances of the offence or the offender and Parliament has not laid down any particular matters which may agitate the exercise of the discretion to suspend. Nevertheless when exercising the discretion to suspend a sentence of imprisonment, the judges and magistrates must have regard to all the relevant matters and principles.”

14. Mr Petraccaro also referred to the decision of Johns v Police (24 June 1998, SASC S6729 unreported) wherein Lander J said (p4):

    “... in every case a magistrate must determine whether particular conduct giving rise to the offence was contumacious.”

15. This, he submitted, accorded with the position taken by Mullighan J in Harshazi v Police (1988) 71 SASR 316 wherein it was held that a magistrate had erred in imposing a sentence of imprisonment with respect to offending behaviour which the magistrate described as foolish without concluding that it was contumacious.

16. In the light of those decisions, Mr Petraccaro submitted that there was an obligation upon a sentencing magistrate, in each case, to make a positive determination as to whether the particular offending was contumacious.  In this case, the magistrate had fallen into error by failing to make any finding to that effect.

17. I agree that a magistrate, in deciding to impose a custodial sentence, has an obligation to determine whether the particular offending was contumacious, I do not think, however, that it can be said that, in this case, the magistrate failed to do so simply because he failed to make express reference to that matter in his sentencing remarks.  It must be remembered that these were ex tempore  remarks made by an experienced magistrate in the course of what was undoubtedly a busy list.  It is, in my view, implicit in his comments that he turned his mind to this issue and concluded that the offending in this case was contumacious.  It is therefore necessary to consider whether, in reaching that conclusion, he fell into error. 

18. The remarks of Mullighan J in Cadd cited above were specifically directed to a first offender.  The situation becomes less clear when considering second or subsequent offenders.  As Mullighan J went on to say in Cadd at 180:

    “... different considerations must apply to the offender who is before the court on this charge for a second or subsequent offence.  Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind but that is not to say that they cannot exist.”

19. And as Lander J said (at p201):

    “For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing magistrate that good reason exists for suspending the sentence, increase.  A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence.  That is because a second offence would ordinarily exhibit contumacy on the part of the offender.  So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence.”

20. In Johns v Police Lander J said (at p4):

    “I suppose in nearly all cases a second offence would demonstrate the degree of defiance necessary to make out a contumacious breach.  However, even with a subsequent offender driving in the case of a real emergency or in circumstances of duress may not indicate a contumacious breach.”

21. And (at p7):

    “Because the test is contumacy the inquiry must be more directed to attitude.  The reasons for driving a motor vehicle, in circumstances where the offender well knew that he or she had been ordered by a Court or by administrative action not to drive a motor vehicle, are important.  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.  It rather suggests that it does not suit the driver to obey the order of the court.  If the offender’s attitude exhibits defiance that would suggest contumacy.

    However, even if it is contumacious behaviour it will not necessarily give rise to an immediate sentence of imprisonment.  There will still need to be an inquiry into whether good reason exists for suspending the sentence (s38 Criminal Law (Sentencing) Act).”

22. Can it be said that the driving in this case was contumacious?  The significant issue in this case is the fact that this was the fifth offence of driving disqualified committed by this defendant.  He had been disqualified from driving until further order by the Port Adelaide Magistrates Court on 10 November 1995.  On 8 September 1997 he was sentenced to a term of imprisonment for four months for driving under disqualification.  The present offences were committed approximately seven months after his release from prison for this same offence.  Despite Mr Petraccaro’s submission that the defendant’s state of inebriation may have rendered him incapable of turning his mind to the possibility of being in contempt of court, it is difficult to see, in the light of his prior history, how he could have been so overborne as to not be aware of his disobedience of the specific court order.  The defendant drove his vehicle on public roads for a substantial distance.  There was no suggestion that there was any emergency or other catalyst relevant to his decision to drive. 

23. On the hearing of the appeal I was informed that subsequent to the hearing in the Magistrates Court, counsel had ascertained that the defendant had been the person to seek out Mr Fugler with a view to obtaining treatment for his alcohol problem and that had not been placed before the sentencing magistrate.  I do not, however, believe that this particular matter would have had any particular impact on the sentence imposed by the magistrate.  Mr Petraccaro also referred to the magistrate’s reference in his sentencing remarks to the defendant’s prior conviction for manslaughter (which did not arise out of any driving matter) which he suggested may also have caused him to fall into error.  This was a matter which did cause me some concern but, having considered the whole of the circumstances of the defendant’s offending, I consider that the defendant’s driving on this occasion could appropriately be described as contumacious.  I also believe the imposition of a penalty for a fifth offence, which equates to about one quarter of the maximum available, was not manifestly excessive.

24. As all of these offences arose out of one course of driving, the magistrate correctly ordered that the sentences of imprisonment be served concurrently.  As I have said, the charge of driving under the influence was the defendant’s third offence and warranted a sentence of four months imprisonment.  In view of the order for the sentences to be served concurrently, and the failure of the defendant to persuade me that the sentence with respect to the driving disqualified charge was manifestly excessive, there has been no miscarriage of justice with respect to the term of imprisonment imposed by the magistrate.

25. Having determined to impose a custodial sentence with respect to these two offences.  I do not, however, consider that it was appropriate to impose a further penalty by way of a fine with respect to the charge of driving without due care.  In my view the appeal should be allowed to the extent that the fine imposed with respect to that offence be quashed.  In lieu thereof I will record a conviction without penalty.