WILLIS v Police - [2009] SASC 230

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
WILLIS v POLICE
[2009] SASC 230
Judgment of The Honourable Justice Nyland
12 August 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appellant charged on complaint with drive disqualified and driving unregistered motor vehicle – earlier conviction for drive disqualified and other driving offences – appellant unaware licence required to drive on bush track inaccessible to public – following altercation with another vehicle appellant drove on Government Road – offence of drive unregistered motor vehicle not punishable by imprisonment – Magistrate fell into error in applying s 18A Sentencing Act and impose sentence of imprisonment for both offences – failure by Magistrate to fully consider all circumstances of offending – lower level of contumacious offending – appeal allowed – sentence of imprisonment imposed for drive disqualified suspended on condition appellant enter into bond to be of good behaviour for 18 months – convicted without penalty on drive unregistered vehicle charge.
Motor Vehicles Act 1959 ss 9, 91; Sentencing Act 1988 s 18A, referred to.
Hermel v Police (2000) 76 SASR 336; R v Knowles [2007] SASC 185, applied.
Crafter v Police [2001] SASC 336; R J v Police [2006] SASC 153, distinguished.
Sheean v Police (1999) 106 A Crim R 590; Cadd v Police (1997) 70 SASR 150; Bates v Police (1997) 70 SASR 66; Lammeeren v Police (1999) 28 MVR 549; Harshazi v Police (1998) 71 SASR 316, considered.

WILLIS v POLICE
[2009] SASC 230
Magistrates Appeal

NYLAND J: The appellant was charged on complaint that on 17 August 2008 at Andamooka, he drove a motor vehicle on a road, namely Government Road, while he was disqualified from holding or obtaining a licence, contrary to s 91 Motor Vehicles Act 1959 (“MVA”). He was further charged that on the same date and at the same place, he drove a vehicle, namely a sedan, the registration of such motor vehicle not then being in force under the provisions of Part 2 MVA, contrary to the provisions of s 9 MVA.
On 8 April 2009 the appellant appeared before a Stipendiary Magistrate in the Whyalla Magistrates Court and pleaded guilty to both charges. He was represented by Mr Weiss of counsel, who made submissions on his behalf. The appellant admitted that on 7 August 2007 he had been convicted of the offences of drive disqualified, driving under the influence, attempting to drive with excess blood alcohol and driving without due care, all of which had been committed on 21 April 2007. On that occasion, the appellant was fined and disqualified from holding or obtaining a driver’s licence for a period of 16 months.
It appeared that about 6.30 pm on Sunday, 17 August 2008 the appellant was driving his motor car on Government Road at Andamooka when he was involved in a collision with another vehicle. He told the police that his reason for driving had been to go out and have some fun out bush. He was aware his licence had been disqualified by the Whyalla Court for drink-driving and understood he was prevented from driving at any time until his disqualification was completed.
Mr Weiss told the learned Magistrate that the appellant had previously lived and worked as an apprentice diesel mechanic at Roxby Downs but had lost his job as a result of the licence disqualification for the drink-driving offences. At the time of the commission of the present offences he was living at Whyalla, but had travelled with a friend to Andamooka for a few days to catch up with other friends. Until that date he had obeyed his disqualification and had not been driving. Mr Weiss told the court that on this occasion the appellant’s friend had driven him to Andamooka, then out of Andamooka to scrubland. When they got into that area, the appellant took over driving as he believed that the land they were driving on was part of land subject to a lease to BHP Billiton. They were driving around dirt tracks for a bit of fun. The appellant did not realise that a licence was required to drive on bush tracks that were accessible to the public. In the course of driving around the dirt tracks, they came across another vehicle following which there was an altercation, in the course of which the driver of the other vehicle threw bottles at the appellant’s car and tried to assault him.
Mr Weiss told the Magistrate that the appellant immediately headed to the main dirt road, that is Government Road, to get away from the area and had intended to hand over the driving to his companion when he got to the main road. The driver of the other followed them however and the appellant did not think it prudent to stop immediately. After driving a short distance along Government Road, the appellant pulled over to the side of the road. The other vehicle which was following close behind then collided with the appellant’s vehicle, pushing it off the road. Fortunately no-one was injured and the vehicles sustained minor damage. The driver of the other vehicle was subsequently charged with offences arising out of the collision.
Although the appellant left the scene, when spoken to later by the police he volunteered that he was driving the car at the relevant time.
Mr Weiss told the Magistrate that it was not disputed that the appellant’s driving was contumacious, although the appellant was not aware that a licence was required to drive on bush tracks that were accessible to the public. He pointed out that the appellant had not intended to drive on the main road, but did so following the altercation with the driver of the second vehicle in an effort to get away from a difficult situation.
Mr Weiss told the Magistrate that the appellant had just turned 21 years of age and had just moved in with his fiancée of six months. He had a good work history and had been in regular employment since his later years at school. He was currently part way through a diesel mechanic apprenticeship when he lost his driver’s licence and had been unable to continue in that apprenticeship until his licence was reinstated. He had subsequently found work which did not require a licence and more recently had been helping his father, who was opening a tyre business in Whyalla. Mr Weiss said that the appellant’s father suffered a significant injury to his wrist in an accident some five months earlier and the appellant had been helping out, particularly with physical work that his father was unable to manage due to his injury.
Mr Weiss also referred to the offending which had resulted in the appellant losing his licence. It appeared that on 21 April 2007 the appellant was stopped by police and subjected to a breath analysis test, as a result of which he was charged with driving under the influence and issued with an instant licence disqualification. A short time later, however, the appellant drove his vehicle and was stopped again by the police, who charged him with a second offence of DUI and drive disqualified. Mr Weiss submitted that whilst the driving the second time was inexcusable, the appellant had not appreciated the seriousness of driving whilst disqualified as at that stage he had not had the benefit of a warning from the court, which he submitted was reflected by the decision of the court on 7 August 2007 not to impose a sentence of imprisonment for the drive disqualified offences.
The thrust of the submission made on behalf of the appellant was that the appellant now fully appreciated the seriousness of disobeying the order of the court not to drive and there were good reasons to suspend the sentence of imprisonment which the learned Magistrate would inevitably impose. The appellant had not been the subject of a bond nor had the benefit of a suspended sentence in the past. He was young and had a good history of attending school and employment. He had sought out casual and occasional work, despite the difficulty of doing that without the use of a driver’s licence. He was hoping to join the Army and continue his mechanic’s apprenticeship. Mr Weiss submitted that the circumstances of the appellant’s offending were somewhat out of the ordinary and while the appellant admitted that his behaviour was contumacious, the circumstances in which the offence had been committed, placed it at the lower end of the scale.
In the course of the hearing, the learned Magistrate referred to a pre-sentence report, which Mr Weiss had not previously seen. That report was supportive of the appellant and Mr Weiss submitted that it added weight to his submission that there were good reasons to suspend the sentence in view of the appellant’s personal circumstances, as they were elaborated upon in that report.
The sentencing remarks of the learned Magistrate are relatively brief. I do not criticise her for that as this undoubtedly was just one of many matters in a very busy list, but the limited reasons create a difficulty for this court in assessing whether she appropriately took into account all relevant matters. Although not referred to in her sentencing remarks, the endorsement on the file indicates that the learned Magistrate relied upon s 18A Sentencing Act 1988 (Sentencing Act) to impose one penalty for both offences, ie: imprisonment for a period of 14 days and she was not prepared to suspend that sentence. The appellant now appeals against that order. The grounds set out in the amended notice of appeal are as follows:
1.The learned Magistrate erred in imposing a term of imprisonment for the offence of driving an unregistered vehicle;
2.The learned Magistrate erred in imposing a term of imprisonment for the offence of driving whilst disqualified;
3.The learned Magistrate erred in failing to suspend the term of imprisonment, there existing good reason to do so.
Ground 1
The offence of driving an unregistered vehicle has a maximum penalty of a fine of $2,500 and is not an offence punishable by imprisonment. An offence punishable by way of a fine only cannot be included as one of the offences in respect of which a term of imprisonment is imposed. In Hermel v Police[1] Duggan J said:
It is my view that in those cases where a global term of imprisonment is imposed, the individual offences must be punishable by a term of imprisonment. An offence punishable by way of a fine only cannot be one of the offences in respect of which a term of imprisonment is imposed. It would be quite wrong for such an offence to contribute to a composite penalty of imprisonment. The effect would be to impose a term of imprisonment for an offence punishable by a fine, albeit that the sentence of imprisonment, being a global penalty, was passed in respect of a number of offences. A sentence of imprisonment is imposed in respect of each of the offences notwithstanding that the offences are grouped together for the purpose of the composite sentence and it is impossible to identify the contribution which each of them has made to the total.
[1] (2000) 76 SASR 336 at para [7].
These remarks were cited with approval by the Court of Criminal Appeal in R v Knowles[2].
[2] [2007] SASC 185 at para [29].
On the hearing of the appeal the respondent conceded that the learned Magistrate had fallen into error in applying a global penalty for both offences. This court was therefore entitled to intervene and exercise the sentencing discretion afresh. The respondent submitted however that the appropriate approach to penalty was to give substantive effect to the learned Magistrate’s intentions by maintaining the order of imprisonment with respect to the offence of drive disqualified and to record a conviction without further penalty in respect of the offence of driving an unregistered vehicle.
Grounds 2 and 3
Counsel for the appellant argued however that in addition to the incorrect use of s 18A Sentencing Act the sentencing process had further miscarried as the remarks made by the learned Magistrate indicated that she had sentenced on an erroneous factual basis. In the course of her remarks the Magistrate described the appellant as “bush bashing” and commented that it was “not the first time [the appellant] has driven while he was disqualified from driving and is by no means his first brush with the traffic laws.” The learned Magistrate commented that:
… general public deterrence is the paramount consideration, especially in respect of offences of this kind committed in and around Roxby Downs and Andamooka, where drink driving has been far too prevalent and driving while under disqualification all too common.
Notwithstanding factors personal to the appellant, she considered there was no alternative but an immediate sentence of imprisonment. She went on to say:
When you were disqualified, you were disqualified in court. You were told by a magistrate that it meant gaol if you drove while you were disqualified. It is that simple. This is not just about you. It is also about everybody else who might think about doing what you did. You have been driving disqualified, breaching the traffic laws and being a danger to other people.
That is why you are doing fourteen days gaol, not just to get it into your head, but to get it into everybody else’s head as well, that magistrates are serious when we warn people that if they disobey court orders they will go to gaol. When we tell people they will go to gaol if they drive disqualified, we mean it. If you choose to ignore what you are told, that is your bad luck. You chose to drive. You are going to gaol for fourteen days because you did.
The learned Magistrate understandably took a serious view of the fact that the appellant was before the court as a second offender with respect to the charge of drive disqualified and for that reason thought it necessary to make it clear to the appellant that the court would not tolerate continued breaches of its orders.
It does not however follow as a matter of course that a sentence of imprisonment will be imposed as a result of a second or subsequent offence of drive disqualified, although it is clear that a person who comes before the court charged with a subsequent drive disqualified offence will find it more difficult to escape imprisonment than would a first offender. This is an issue which has most recently been considered in Nash v Police[3]. In that case the Chief Justice referred to the meaning of “contumacious” as defined by Mullighan J in Cadd[4] and discussed a number of cases decided thereafter, in which the courts have discussed what would amount to a contumacious breach[5]. The Chief Justice went on to say at [38] that:
… I consider that the attitude of the offender to the disqualification or licence suspension is of particular significance. The attitude of the offender is to be determined by an assessment of the circumstances of the breach and the reason given by the offender for the breach.
and at [47]:
… the justification for an order suspending a sentence of imprisonment (if imprisonment is appropriate) can be found only in the personal circumstances of the offender, and it will be more difficult in such a case to find good reason to suspend the sentence in respect of a subsequent offence.
[3] [2009] SASC 112 – unreported judgment delivered on 4 May 2009.
[4] (1997) 69 SASR 150.
[5] Bates v Police (1997) 70 SASR 66 per Perry J at [73]; Lammeren v Police (1999) 28 MVR 549; Olssen J at [24]; Harshazi v Police (1998) 71 SASR 316; Mullighan J at [319] to [320]; Sheean v Police (1999) 106 A Crim R 590 Perry J at [15] to [17].
In this case, the Magistrate does not appear to have fully considered the circumstances of the offence in considering whether she could take a more merciful approach to sentence and to find whether good reason existed to suspend the term of imprisonment. Even in situations of contumacy, the court has held that imprisonment ought only to be imposed if no other penalty is appropriate: Crafter v Police[6] and RJ v Police[7].
[6] [2001] SASC 336 Mullighan J at para [14].
[7] [2006] SASC 153 (Full Court) at para [32] per Layton J.
The Magistrate included in her remarks a reference to the prevalence of drink-driving offences in the general area but there was no evidence that the appellant was affected by alcohol when he committed this offence. The learned Magistrate referred to the appellant as “bush bashing”, breaching the traffic laws and being a danger to other people. The reference to the breach of the traffic laws suggested that the Magistrate was proceeding on the assumption that the appellant had a more extensive prior history than that which he in fact had. Although the appellant said he was driving to have “some fun” there was no evidence before the court that there was anything untoward in his manner of driving. Although his vehicle was involved in a collision the responsibility for that appears to have been attributed to the other driver and not the appellant, nor was there any evidence that any other person had been embarrassed or affected by his driving, nor that he created a situation of danger for anyone. It did not appear to be disputed that the appellant had not appreciated that a licence was required to drive on bush tracks nor that he had not intended to drive on the main road until the incident happened with the other driver.
The circumstances in which the appellant committed this offence, as outlined by his counsel, support his counsel’s submission that this was a case which could be treated as being at the lower level of contumacious offending. The need for general and personal deterrence can appropriately be reflected in the imposition of a custodial sentence but in my opinion there are a number of matters arising out of the personal circumstances of the appellant which provide good reason to suspend. He is a young man with a good work history, he is part-way through an apprenticeship and he has not previously had the benefit of a suspended sentence. He is behaving in a responsible manner by assisting his father run his business following his father’s injury. In the circumstances, the rehabilitation of the appellant should be encouraged. The appeal will therefore be allowed and the sentence imposed by the learned Magistrate will be set aside. In lieu thereof on the charge of driving while disqualified, there will be a sentence that the appellant be imprisoned for a period of 14 days, but that sentence will be suspended on condition that the appellant enter into a bond in his own recognisance in the sum of $500 to be of good behaviour for a period of 18 months. On the charge of driving an unregistered vehicle, the appellant will be convicted without penalty.