Wilson v Police No. Scgrg-99-515 Judgment No. S244

[1999] SASC 244

WILSON  v  POLICE
[1999] SASC 244

Magistrates Appeals:  Criminal

1. DOYLE CJ.               This is an appeal against a sentence imposed by the Magistrates Court.

2. The appellant pleaded guilty to a charge of driving while disqualified from holding or obtaining a licence, and to a charge of driving an unregistered motor car.  On the first charge the magistrate sentenced the appellant to imprisonment for 14 days.  He disqualified him from holding or obtaining a driver’s licence for six months.  On the second charge the appellant was fined $200.

3. The appellant complains that the penalty is excessive.  The circumstances of the offence are as follows:

4. The appellant lived with his girlfriend.  He and his girlfriend had an argument.  After a bad night’s sleep he overslept the next morning.  He was running late for work.  He apparently accepted his girlfriend’s offer to let him drive her car.  He did not know that it was unregistered.  He was detected by police at a petrol station at 6.30am.  He was due at work at 7am.  It would have taken him about 45 minutes, as best I can tell, to get from his home to his place of work by car.  The appellant is 21 years of age, he was employed at the time.

5. He has a poor driving record.  On 1 September 1998 he was disqualified from holding or obtaining a licence for six months.  He had served three months of that period when the present offences were committed.  The offences of 1 September 1998 were driving with the prescribed concentration of alcohol, and driving an unregistered and uninsured vehicle.  On 13 June 1997 and 5 June 1997 he was convicted on charges of driving without a licence.  On 6 March 1997 he was convicted for speeding and driving without a licence.  As I said, this is a poor record.  Three convictions for driving without a licence suggests that the appellant has no regard for the law.  Granted, he was younger when he committed these offences, but they did not occur much before the offences in question.  He would have been less than two years younger at the time of the earliest of these earlier offences.  The number of convictions in a relatively short period of time suggests that the appellant has not learned a lesson from his experience.

6. The then counsel for the appellant submitted to the magistrate that on the morning in question the appellant’s judgment was clouded, as a consequence of the argument with his girlfriend and the lack of sleep.  Counsel referred to the appellant’s employment history and sought a suspended sentence.  Those matters are taken from the affidavit filed in support of the appeal.

7. The magistrate took the view that the offence was quite deliberate.  He took the view that the defendant simply decided to take the chance, knowing the consequences.  He said that this displayed a contempt for the law.  I do not mean by this that I read the magistrate as having rejected the explanation, but rather that the magistrate did not consider that the explanation was an adequate one.  The magistrate said there was no emergency justifying the action of the appellant.  He referred to the appellant’s poor driving record.

8. I agree with the magistrate’s assessment of the facts.  The appellant must have known full well the significance of what he did that morning and the consequences that he risked.  He could have caught a taxi to work.  That would be expensive, but not prohibitively so.  He did not say in the submissions to the magistrate that he could not have asked his girlfriend to drive him to work, or at least to a place at which he could catch a bus or get a taxi.  His girlfriend does not work.

9. I accept that his judgment may have been somewhat affected by the argument the night before and the lack of sleep.  But in my opinion those bare facts of themselves do not provide an adequate explanation for the offending.  They do not substantially minimise the seriousness of the offence.

10. I interpolate here that the appellant did not give evidence before the magistrate.  Some of the submissions in support of the appeal appeared to me to go beyond the facts that had been put before the magistrate and amount to further factual submissions as to the appellant’s subjective state of mind on the occasion.  That is, they went to the extent to which the lack of sleep had affected him.

11. I repeat, as has been said in earlier cases, that when the matters put in mitigation depend heavily, as they do here, upon the subjective state of mind of the offender, it is most desirable, and sometimes would be essential, that the offender give evidence in support of the ground of mitigation advanced.

12. Returning to the case in hand, I would class this as the case of a person who appears to have simply taken a calculated risk no doubt, not expecting to be caught.  I accept the circumstances in which the offence was committed, that is that the appellant had overslept and was late for work and I accept that his judgment might have been somewhat affected by the events of the night before.  But in my opinion, on their face they do not provide any reasonable or good excuse for what the appellant did. 

13. A court is always reluctant to send a person to prison for the first time, but this is a prevalent offence.  Its commission in circumstances like this undermines the court order which it breached.  The courts must make it clear that the offence itself and the defiance of a court that is involved is a serious matter.  I consider that the circumstances of the offence indicate that the appellant simply disregarded the court order in question, albeit for the reason he offered.  He is not a person with a record that supports the court affording leniency.  In my opinion the sentence was appropriate. 

14. Separate consideration is required of the question whether the imprisonment should have been suspended.  I find it difficult to say that the magistrate was wrong in declining to suspend the sentence.  In fact, in my opinion it cannot be said that he was wrong.  Granted, the appellant is a young man with employment, but his record suggests that he needs to be taught the seriousness of such conduct.  His poor record also makes it more difficult to justify the exercise of the discretion in his favour and the extending of leniency. 

15. Assessing the matter for myself, and that is without simply considering whether it has been shown that the magistrate was wrong, I can find no good or proper reason to order suspension.

16. At this stage I mention that counsel for the respondent conceded that, as a matter of principle, the magistrate’s approach to the exercise of the sentencing discretion had miscarried.  I must say I am not completely satisfied that the magistrate’s approach was erroneous.  His reasons, no doubt given ex tempore, were very brief.  There is no criticism of that.  I understand the circumstances under which magistrates deal with these matters.  However, if one looks at what the magistrate said in relation to the decision in Police v Cadd (1997) 69 SASR 150 it is fair to say, as Mr Hinton pointed out, that the magistrate’s very brief reference to that case is not an accurate statement of the principle that it embodies.

17. Mr Hinton made the point that while he understood the circumstances under which the reasons were given, the decision in Cadd states a principle which must often be applied by magistrates.  It is important that magistrates both understand what the case stands for and express the decision accurately.  If the principle behind Cadd is not stated accurately, the court has little choice other than to proceed on the basis that the magistrate has not applied the appropriate principle.

18. As I said, making all allowance for the circumstances in which the reasons were given and their brevity, I am not entirely satisfied that the magistrate did err.  However, in light of the concession made I have considered the matter afresh, as if I were imposing sentence.  As I have already indicated, in my opinion this was a case in which a sentence of imprisonment was required and under those circumstances a 14 day sentence of imprisonment seems to me to be appropriate.  It is also the case, as I have indicated, that considering the matter for myself I do not consider that there is good reason for suspending the sentence.

19. For those reasons the appeal will be dismissed.

    ORDER:

    1.... Appeal dismissed.

    2.... That there be no order as to costs of the appeal.