WILLIS v Police - [2006] SASC 245

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
WILLIS v POLICE
[2006] SASC 245
Judgment of The Honourable Justice Perry (ex tempore)
15 August 2006
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
The appellant appealed against a custodial sentence of 4 weeks imprisonment imposed on a charge of driving whilst disqualified – after a long bout of drinking at a party, he gave a lift home to a relative, thinking that he was more sober than the relative and was fit to drive, although he knew that he was disqualified from driving – as well as the charge of driving whilst disqualified, he pleaded guilty to driving with the prescribed concentration of alcohol, namely 0.115% - the appellant, aged 30 years, had a long history of traffic offences, including 2 convictions for driving without a licence and 2 other convictions for driving whilst disqualified – held on appeal that whether or not the driving was properly characterised as contumacious, the sentencing magistrate did not err in refusing to suspend the sentence – observations against treating the answer to the question whether in such circumstances the driving was contumacious as some sort of litmus test or talisman which inevitably resolved the issue whether or not to suspend – all of the circumstances must be taken into account – even if contumacious, the court may not necessarily refuse to suspend, and if not contumacious, the court might nonetheless impose a custodial term – in all the circumstances, particularly bearing in mind the appellant’s prior record, the magistrate did not err in exercising his discretion not to suspend the sentence of imprisonment – further observations as to the relevance of the impact of a sentence of imprisonment on dependants, including small children – appeal dismissed.
Motor Vehicles Act 1959 s 91; Criminal Law (Sentencing) Act 1988 s 38; Road Traffic Act 1961 s 47a, referred to.
Neill v Police (unreported) [1999] SASC 270; R v Penno (2004) 236 LSJS 457, considered.

WILLIS v POLICE
[2006] SASC 245
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the penalty imposed upon him following his plea of guilty to driving whilst disqualified; driving an unregistered and uninsured motor vehicle; and driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol as defined in s 47a of the Road Traffic Act1961 (“the Act”).
All four offences relate to an occasion when the appellant was observed on 25 February 2005 whilst driving south on Victoria Parade at Port Augusta. When questioned by police the appellant admitted that his licence was disqualified. Further police checks revealed that the registration of the vehicle had expired on 21 January 2005 and that the vehicle was uninsured.
The police officers noticed a smell of alcohol. An alcotest proved positive. A subsequent breath analysis test returned a result of 0.115 grams of alcohol per 210 litres of breath.
After hearing submissions from counsel for the appellant and the police officer who prosecuted, the sentencing magistrate recorded convictions on all four counts.
On the charge of driving whilst disqualified he sentenced the appellant to a term of imprisonment of four weeks. He declined to suspend the sentence.
As to the charge of driving with the prescribed concentration of alcohol, he imposed a penalty of 64 hours community service to be performed within a period of five months. On that charge he also imposed a licence disqualification of 15 months to commence on 24 February 2008.
With respect to the charges of driving an unregistered and uninsured vehicle he imposed no further penalty.
The appeal is limited to the sentence of imprisonment imposed on the charge of driving whilst disqualified.
In his notice of appeal the appellant advances two grounds:
1.The learned stipendiary magistrate erred in not suspending the whole of the sentence of imprisonment.
2.The learned stipendiary magistrate erred in that he failed to give adequate weight to the appellant’s personal circumstances:
(a) Family responsibilities regarding care of sick child.
I have had the benefit of an affidavit sworn by the police prosecutor Mr Perry which summarises the facts as they were explained to the magistrate. I have already set out the substance of what was put to the magistrate in that regard.
The prosecutor also tendered to the court a record of the appellant’s antecedents.
The appellant is about 30 years of age. He has a history of prior offending, largely traffic offences.
In November 1995 in the Coober Pedy Children’s Court he was convicted of building break and felony with respect to which he was sentenced to perform a period of community service.
In October 1995 he committed offences of drive with excess blood alcohol, driving without a licence and other traffic-related offences. The penalty imposed on that occasion was a licence disqualification for 15 months commencing forthwith.
In August 1997 the appellant committed the offences of fail to truly answer and drive under disqualification. The penalty imposed was to perform 40 hours of community service within six months.
On 31 October 2000 the appellant estreated bail.
In September 1999 the appellant committed the offence of driving with excess blood alcohol and driving without a licence and other offences. A licence disqualification was then imposed for three years commencing on 25 February 2002.
In February 2002 the appellant again committed the offence of driving with excess blood alcohol. On that occasion a licence disqualification of 18 months was imposed commencing on 25 February 2005, that is, at the expiration of the three year disqualification which was imposed on 25 February 2002.
In October 2003 the appellant was detected driving whilst disqualified and was so charged together with other offences for which he was sentenced to 40 hours of community service.
In total the appellant has committed two offences of driving without a licence and two offences of driving while disqualified. He has been warned on a number of occasions as to the consequences of driving while disqualified.
I have had the benefit also of an affidavit from Ms Collins who appeared on behalf of the appellant in the court below. In her affidavit she summarises the effect of the submissions which she put to the magistrate. She said that on the day prior to the night in question the appellant had been to a birthday party with a number of friends and relatives and had consumed a considerable quantity of liquor throughout the day and night.
Just before the offence was committed one of the appellant’s cousins, who appeared very much intoxicated, expressed a determination to drive the car despite attempts by the appellant and others to deter him. In the mistaken belief that his blood alcohol content was much lower than it evidently was, the appellant resolved to drive a short distance across town giving his cousin a lift rather than allowing his cousin to drive. It was that act of driving which resulted in the charges and the conviction now in question.
It was put to the magistrate that the appellant is the father of four children who reside with him and his de facto partner. The children are of tender years, aged between one and four years. A two-year-old son suffered third degree burns in an accident some time beforehand and was in Port Augusta Hospital at the time of the hearing in the Magistrates Court. The appellant’s counsel submitted to the magistrate that it was incumbent upon the appellant to take the child to Adelaide for specialist medical treatment and any immediate custodial sentence would create serious difficulties in answering to that obligation. The submission was urged upon the magistrate that there were good grounds to be found for suspension of any term of imprisonment.
In his sentencing remarks delivered ex tempore, the sentencing magistrate emphasised the seriousness of the offence of driving under disqualification. He dealt with what he described as “clear guidelines from the Supreme Court which suggest imprisonment is the sentence which should be imposed for contumacious offending”.
I am not sure if that is perhaps pitching the matter too high. The word “contumacious” is not intended, and has not been said in the decisions of this Court, to my knowledge, to displace the statutory test, more particularly as to the penalty for driving whilst disqualified contrary to s 9 of the Motor Vehicles Act 1959 and the test under s 38 of the Criminal Law (Sentencing) Act (1988) as to suspension of a sentence of imprisonment. Rather, it is a guide to sentencing courts as to circumstances in which it may be thought proper to impose a sentence of imprisonment for this offence, that is, a custodial term.
There may nonetheless be circumstances which may properly be described as contumacious associated with the commission of the offence which, taken with other circumstances, may not lead to a custodial sentence of imprisonment.
Further, there may be cases which could not properly be characterised as an example of contumacious offending, but which, for various reasons might nonetheless deserve a custodial sentence of imprisonment.
At all events, the learned sentencing magistrate went on to say:
What I have some difficulty with in accepting is that with the blood alcohol reading of 0.155 you wouldn’t have been conscious of the fact that you were intoxicated. That, in my opinion, is an aggravated feature of this offending. In my opinion, the offending was contumacious.
The magistrate then referred to the appellant’s personal circumstances. He said that he had given consideration to the issue of whether he should suspend the sentence, but was not satisfied that he should do so. He referred to the fact that he would have to find good reason to do so, and that he was unable to find or identify such a good reason.
Mr Coates, who appeared for the appellant, contended that this was not a case of wilful disobedience, and that the sentencing magistrate erred in characterising the offence as contumacious. He submitted that to reach such a conclusion was inconsistent with another remark made by the magistrate in the course of his remarks on sentence, when he said:
I accept that you may have thought it was doing the right thing at the time but clearly you were not.
Mr Coates’ submission was that, if the appellant’s state of mind was that he thought he was doing the right thing by helping his cousin get home and to avoid going with two others that might have been present if he had been tempted to drive himself, this was hardly consistent with a flagrant or wilful disobedience of the licence disqualification.
I am not so sure that there is any tension between that observation by the magistrate and his conclusion that the driving was contumacious. I think it may well be that in particular circumstances, a person may deliberately defy an order of disqualification, so as to render his conduct contumacious, while thinking that the immediate circumstances justified that course.
At all events, I do not think that the case necessarily turns upon the question whether or not the offending was correctly characterised as contumacious. All of the relevant circumstances must be taken into account in the sentencing process and, as I have indicated, the question whether or not the offending was contumacious is not some sort of litmus test or talisman which indicates without qualification one way or another whether or not a custodial term should be imposed.
Mr Coates suggested that there were at least three circumstances which amounted to good reasons to suspend the sentence.
The first is the question which I have just dealt with, namely whether the offending was contumacious, as to which he submitted the magistrate erred.
The second was that, given the situation of the children, particularly the child with burns for whom medical attention was needed, to imprison the appellant would be to cause undue hardship on that child, the other children and their mother.
The third reason was that the appellant had always complied with the orders for community service and was a good candidate for rehabilitation.
I have already commented on the first of those points.
As to the second point, it is almost always the case that where a young family in particular is involved, there will be a degree of hardship which will be suffered by dependents.
In R v Penno,[1] Gray J pointed out:
As some degree of hardship will invariably be suffered by dependants upon imprisonment, hardship to those dependants will not generally be taken into account in the defendant’s favour except in extreme or extraordinary circumstances. In other words, the hardship must be of such a serious character as to call for a merciful approach to sentencing.
[1] (2004) 236 LSJS 457 at [46].
In Neill v Police,[2] Doyle CJ observed:
The process of sentencing does not become one in which the impact on the offender’s family controls the outcome, or even is a dominating factor. The true position is that the interests of the offender’s family may be given effect to by reducing an otherwise appropriate sentence.
[2] (Unreported) [1999] SASC 270 at [24].
As to the third point, I have some difficulty in accepting the proposition that the fact that the appellant has previously complied with orders for community service should lead to the conclusion that he is a good candidate for rehabilitation. The court is not looking at rehabilitation in this case in a general sense. It is looking at a sentencing process designed to deter the appellant from continually breaching the road traffic laws in a serious way, more particularly by failing to comply with orders for disqualification and by persistently driving with excess blood alcohol.
Given his record, I have some hesitation in thinking that unless a sentence is imposed which impacts more severely upon him than has previously been the case, it is unlikely that the trend which is clearly apparent from his record of defiance of the penalties imposed for traffic offences, serious ones at that, is likely to be reversed.
As to the effect on the children, I point out that the appellant is clearly unable to drive to Adelaide while he is under suspension. There may well be other options. Others may mind the children other than the child who needs medical attention while that attention is given in Adelaide, and there may well be others who may assist in any event in transporting that child to Adelaide.
In her submissions, Ms Hanson, who appeared for the respondent, emphasised that the appellant’s record of prior offending did not give much buoyancy to the suggestion that he should be granted further leniency in terms of a suspended sentence.
As to the immediate circumstances of the offending, she suggested that a taxi might have been used. The fact that he drove with the prescribed concentration of alcohol is a circumstance of aggravation. She also drew attention to the appellant’s manner of driving, which attracted the attention of the police to the appellant in the first place.
She submitted that the offending was contumacious, and that a custodial term of imprisonment was inevitable. She submitted that previous lenient sentences had not proved to be a deterrent.
As I have said, I think that one can sometimes be distracted by placing too much weight on the word “contumacious” and by failing to look at the broader circumstances in which the offending has been committed. In this case I am of the view that there is very little to be said for the appellant, and that his record suggests that the time has come when, in order to deter him from further offences of this kind, there was very little option but to impose a custodial term of imprisonment.
I am unable to detect any error in the reasoning adopted by the sentencing magistrate.
Before leaving the matter, counsel agreed that the imposition of the term of the disqualification of 15 months to commence on 24 February 2008 appears to be erroneous, in that previous periods of suspension extend only to 25 August 2006. Counsel agreed that I should correct that error and vary the starting date for the commencement of the period of 15 months licence disqualification to 25 August 2006.
In all other respects, the sentence under appeal is confirmed and the appeal is otherwise dismissed.
[FOLLOWING DISCUSSION AS TO COSTS]
I order that the appellant pay the respondent’s costs of and incidental to the appeal fixed in a lump sum of $150.