Wilson v Police; Wilson v Department for Correctional Services No. Scciv-04-31, Scciv-04-91

WILSON v POLICE
WILSON v DEPARTMENT FOR CORRECTIONAL SERVICES
[2004] SASC 39
Magistrates Appeal: Criminal

BESANKO J: The defendant has lodged two appeals against two sentences imposed by a Magistrate on 19^th December 2003. The appeals are brought pursuant to s 42 of the Magistrates Court Act 1991. It is convenient to refer to the appellant as the defendant. The Magistrate delivered one set of reasons explaining his reasons for imposing the two sentences.
The first sentence of a term of imprisonment for three months to commence forthwith was imposed for two offences of driving a motor vehicle on a road while disqualified from holding or obtaining a licence contrary to s 91 of the Motor Vehicles Act 1959. The defendant pleaded guilty to the two offences which took place on 2^nd May 2003 and 2^nd August 2003 respectively. The Magistrate imposed one penalty with respect to the two offences, utilising the power in s 18A of the Criminal Law (Sentencing) Act 1988 (“CLSA”).
The second sentence of a term of imprisonment for 40 days to commence forthwith was imposed for a failure to comply with an order of a court requiring the performance of community service (s 71 of the CLSA). A breach of a relevant order was admitted by the defendant. The order in question required the performance of 320 hours of community service, and the term of imprisonment for 40 days was calculated in accordance with s 71(2) of the CLSA.
The Magistrate’s Reasons
Driving while Disqualified
The first of the two driving while disqualified offences occurred on 2^nd May 2003. About three weeks prior to that date the defendant appeared before a Magistrate charged with a number of driving offences, including driving while disqualified from holding a licence, driving an unregistered and uninsured vehicle and driving contrary to defect notices which had been issued. On 15^th April 2003, the Magistrate made an order disqualifying the defendant from holding or obtaining a driver’s licence for a period of six months commencing on that date. The period of disqualification expired on 15^th October 2003. In addition, the Magistrate made an order that the defendant perform 320 hours of community service.
The Magistrate in the matter under appeal noted that the first of the two offences before him was committed on 2^nd May 2003, and that that was less than one month after the disqualification had been imposed. The Magistrate said that the defendant would have been warned by the Magistrate who imposed the disqualification of the serious consequences of driving while disqualified.
The Magistrate referred to a psychiatric report prepared by Dr Nambiar of the Forensic Mental Health Service at the Royal Adelaide Hospital. The report is dated 27^th November 2003. The Magistrate made the following comments in relation to the report:
“The report highlights your dysfunctional upbringing, the problems that you have had with extensive abuse of illicit substances, the motor vehicle accident you had in 2000 and various other problems, including diagnosis of recent depression. You have been a heavy user of cannabis and you continue to do so. Also, you have used heroin and other illicit drugs in the past and in a fairly substantive way, and you are now on the methadone program and commencing to reduce the dosage of that drug.”
The Magistrate noted that the report highlighted the fact that the defendant was prone to disregard the law, a fact which he said was evident from her criminal history. That history involved driving contrary to the provisions of the Motor Vehicles Act 1959 (as the Magistrate put it) “time and time again: a total disregard for the road rules”. The Magistrate noted the following passage in Dr Nambiar’s report:
“Her prognosis with regard to future offending remains poor also, as her poor socialisation in her early years have laid the ground for disregard for rules in general, which would be further exacerbated by her almost constant intoxication.”
The Magistrate said that the report made it quite clear that the defendant did not have the motivation to help herself. The Magistrate noted what he considered to be “a total lack and disregard for any conditions” that the court may impose.
The Magistrate said:
“As I said, the Court, after you had pleaded guilty to numerous driving related offences, gave you 320 hours of community service and gave you the opportunity of being dealt with in the community. You totally disregarded that. You did not even bother to even go and report, and as far as the driver’s licence disqualification order that was imposed – less than a month after it was imposed, you were driving; and then after having been pulled over by the police in relation to that, on 2^nd August 2003, shortly after that, you were driving again. To me, that shows a blatant disregard for rules, court orders and anything else that is put in place.”
On the hearing of the appeal I received three affidavits. The first affidavit is an affidavit of Ms Caroline Batten, police prosecutor, who appeared for the police on the two charges of driving while disqualified.
In relation to the first offence committed on 2^nd May 2003, the defendant admitted to driving while disqualified when she was questioned by the police, and she said that she realised that it was an offence to do so. In relation to the second offence committed on 2^nd August 2003, the defendant was driving a motor vehicle, and there were three small children in the motor vehicle. Ms Batten states that the Magistrate asked counsel whether it was agreed that the driving was contumacious, and she states that counsel agreed that on both occasions the driving was contumacious. A copy of the defendant’s prior criminal history was placed before the Magistrate. The defendant has a substantial criminal record, although that record consists mainly of driving offences and other offences which are not at the serious end of the scale.
The second affidavit is the affidavit of Ms Kate Veronique Annells sworn on 28^th January 2004. Ms Annells appeared as counsel for the defendant before the Magistrate. In relation to the two charges of driving while disqualified, Ms Annells made the following submissions, and I quote from paragraph 7 of her affidavit:
“7.(a) That the Appellant was to a large extent dependant upon her partner for guidance, decision making and the general day to day running of her life and that the earlier charge of drive disqualified occurred the day after her partner had been imprisoned, with the result that the Appellant had been unable to sleep the night before due to his absence and was emotionally and mentally overwrought at the time;
(b)     That the second charge of drive disqualified occurred when her partner’s mother had been driving the vehicle, in a circumstance where her partner’s mother had a bad ankle and that this had ‘acted up’, becoming swollen and extremely painful. The Appellant had taken over driving only the length of the street before being seen by a Police Officer, and that she then pulled over and the original driver again resumed control of the vehicle;
(c)     That the Appellant’s physical disability meant that she would never be able to walk without pain and that, for her, walking any distance was an extremely difficult and painful exercise. This disability rendered her almost unemployable, as stated in Doctor Maling’s report, and she therefore did not have the funds to catch taxis to attend appointments and necessary trips and errands, and that in Mount Gambier public transport is extremely limited, leaving her with no other practical transportation.
(d)     That the Appellant had been diagnosed as being clinically depressed and had been prescribed anti-depressant medication by her general practitioner and that her mental state ought to be taken into consideration when considering what sentence should be imposed.
(e)     That the Appellant had signed her community service order at the Court House at 4:45 pm and the community service order had directed her to report to Correctional Services that day, leaving her only fifteen minutes to travel from the Court House to the office of the Department for Correctional Services. In her physical condition and without access to a vehicle, there was no way that she could have obeyed that term of the order.
(f)     That the Appellant had been making a concerted effort to remain out of trouble and that for the last six months, except for the single charge of the drive disqualified in August, she successfully avoided criminal activity.
(g)     That the Appellant had made full and frank admissions in regards to her drive disqualified charges and had co-operated fully with the Police in relation to them.
(h)     That the Appellant had had a difficult childhood which had been fully set out in the psychiatric report of Dr. Nambiar and that since her accident she had become addicted to morphine, and after she was unable to obtain more morphine, she had moved on to using harder drugs.
(i)    That the Appellant had been on the methadone program for approximately two years at a dosage of 130 milligrams of methadone a week. This dosage was now being reduced and that over the last two months she had come down to a dosage of 115 milligrams of methadone a week.
(j)    That the Appellant was suffering from what she described as ‘blackouts’ which had been tentatively diagnosed as perhaps a form of epilepsy, and that these symptoms were still being explored.”
On appeal counsel for the defendant sought to withdraw the concession that the second act of driving while disqualified was contumacious. He referred to the submission made by Ms Annells as set out in paragraph 7(b) of her affidavit which he said was not challenged by counsel for the prosecution. After I had indicated to counsel for the defendant that, in the absence of sworn evidence, I would not accept the version of events set out in paragraph 7(b) of Ms Annells’ affidavit in view of the concession that the driving while disqualified was contumacious, he applied to call further evidence on the hearing of the appeal. Counsel for the prosecution did not oppose the calling of further evidence. I have a discretion to allow further evidence (Rule 97.18(b) of the Supreme Court Rules 1987), and the guiding principle is whether it is in the interests of justice to allow further evidence to be called (Lewis v Holder & Ors [2003] SASC 397). I think it is an appropriate case to permit further evidence. Arguably, the concession that the second act of driving was contumacious and the submissions made by Ms Annells as set out in paragraph 7(b) of her affidavit are inconsistent, and it seems to me that in all the circumstances it is desirable that the defendant be given the opportunity to establish the matters asserted on her behalf.
For the defendant I heard evidence from the defendant and her partner’s mother, Ms Sylvia McKinnon. They gave evidence that they went from 14 Peake Street, Mount Gambier to the Swallow Drive Shopping Centre on 2^nd August 2003. They went in a motor vehicle owned by the defendant’s partner, and Ms McKinnon was driving. Ms McKinnon’s three young children were in the rear of the vehicle. Ms McKinnon slipped in a pothole when coming out the shopping centre and injured her right ankle. The defendant decided to drive back to 14 Peake Street. On the way back, they realised that they had forgotten to purchase milk, and they were going back to the shopping centre when the defendant was seen driving the motor vehicle by an off duty police officer, Constable Timothy McGregor.
For the prosecution I heard evidence from Constable McGregor and Sergeant Derek Long. Constable McGregor said that while off duty on 2^nd August 2003, he saw the defendant driving along Lake Terrace East with three young children in the vehicle. There were no other adults in the vehicle. Sergeant Long went to the premises at 14 Peake Street, Mount Gambier after Constable McGregor had reported his observations, and when he arrived the defendant was standing near the vehicle and there were three children inside the vehicle. While speaking to the defendant Sergeant Long saw Ms McKinnon come out of the house and ask what was going on.
The defendant conceded that if her version of events is not accepted then the second act of driving was contumacious, and the prosecution conceded that if the defendant’s version of events is accepted that the second act of driving was not contumacious.
I accept Constable McGregor’s version of events. He was a truthful witness, and he was not shaken in cross‑examination. The evidence of Sergeant Long supported his version of events, albeit to a limited extent.
I reject the evidence of the defendant and Ms McKinnon. It is inconsistent in significant aspects with the submissions put on the defendant’s behalf to the Magistrate. Furthermore, it does seem to me to be odd that Ms McKinnon did not seek any medical treatment for the injury which she allegedly suffered.
Community Service Order
As I have said, the Magistrate dealt with the breach of the community service order in the same reasons as he dealt with the two driving while disqualified offences and I have already set out a relevant passage from his reasons. He noted that the admitted breach consisted of not reporting to the Department for Correctional Services in order to “sign up and perform the required community services hours”. The Magistrate said that he was told that there were three letters sent to the defendant requiring her to report to the office of the Department for Correctional Services. There was no response by the defendant, and the matter was referred to the Court as a breach. The Magistrate imposed a sentence of imprisonment for 40 days to commence forthwith which was one day for each eight hours of community service remaining to be performed under the order as required by s 71(2) of the CLSA.
A different prosecutor appeared before the Magistrate in relation to the charge of breaching the community service order, and the third affidavit is from that prosecutor (Ms Josephine Mary Duigan). I admitted this affidavit over the objection of the defendant who objected to three letters from the Department for Correctional Services to the defendant being put before me when those letters were not before the Magistrate. It seemed to me that as the letters were referred to by the Magistrate, it was appropriate that they be put before me. The three letters are dated 17^th April 2003, 28^th April 2003 and 12^th May 2003 respectively. Ms Duigan states that the breach of the order was admitted by the defendant. She also states that she did not make any submissions. At some point during the hearing, the Magistrate referred to correspondence between Ms Duigan and Ms Annells, and to three letters sent to the defendant asking her to report to the Mt Gambier Community Correctional Centre.
In her affidavit, Ms Annells states that Ms Duigan told the Magistrate from the bar table that from the records of Correctional Services there had been letters sent to the defendant directing her to report for community service. Ms Annells submitted to the Magistrate that there was no mention of any such letters in Ms Duigan’s affidavit, and that in fact the affidavit specifically said that there had been no, what are called, warning of suspension or notice of suspension letters sent. Ms Annells states that in response to this submission, Ms Duigan submitted that the letters that had been sent were not warning of suspension or notice of suspension letters because the defendant had not yet started community service, and that there was no place in the proforma affidavit to refer to letters directing attendance to commence community service.
Issues on Appeal
Driving While Disqualified
The maximum penalty for driving while disqualified in the case of a first offence is imprisonment for six months, and for a subsequent offence the maximum penalty is imprisonment for two years (s 91(5) Motor Vehicles Act 1959).
Although he did not expressly say so, the Magistrate proceeded to sentence the defendant on the basis that her two acts of driving while disqualified were contumacious. On appeal (as in the Court below), it was accepted by the defendant that the first act of driving was contumacious, and, as I have said, it was accepted by the defendant that the second act of driving was contumacious if I accepted the prosecution version of events on 2^nd August 2003. I have accepted the prosecution version of events. Irrespective of the concession, I think that it is clear that both acts of driving while disqualified were contumacious. The driving was deliberate, it was not momentary or for a short distance and there were no circumstances suggesting an emergency or duress (Bates v Police (1997) 70 SASR 66 per Perry J at 73). The offence committed on 2^nd August 2003 is not strictly a second offence, but the fact that a further offence occurred after the defendant had been reported for the offence on 2^nd May 2003 is a relevant matter.
In Police v Cadd (1997) 69 SASR 150 a majority of the Court said that in the ordinary case of contumacious offending by a first offender the punishment should be imprisonment, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment. Even if it is decided that imprisonment is the appropriate punishment, the Court must still go on to consider if good reason exists to suspend the sentence, and at that point the circumstances of the offending and the offender are again to be considered.
The defendant made two submissions. First, she submitted that imprisonment for three months for two first offences of driving while disqualified was manifestly excessive. She submitted that in light of Police v Cadd (supra), a sentence of imprisonment for one month for a first offence of drive while disqualified was at the higher end of the scale. I do not think one can be very precise about the range of appropriate penalties (see Police v Cadd (supra) per Doyle CJ at 169‑171). In this case the penalty is high but it must be remembered that the defendant had a deplorable record in terms of driving offences. The Magistrate said that her criminal record revealed a total disregard for road rules.
In the circumstances, I do not think that a sentence of imprisonment for three months is manifestly excessive. There were two acts of driving while disqualified, the first took place within three weeks of the order being made and the second took place after the defendant had been reported for the first. Both acts of driving while disqualified were contumacious. The defendant’s record in relation to driving offences was such that a stiff penalty was the only option. A sentence of imprisonment for three months was high, but not outside the appropriate range of penalties.
The defendant also submitted that the Magistrate did not take into account properly, her psychiatric condition and that if he had taken it into account, he would not have imposed a sentence of imprisonment or he would have suspended the sentence of imprisonment which he imposed. Dr Nambiar proffered the opinion that the defendant suffers from a chronic post traumatic stress disorder and mild or major depression of more recent origin. There are elements of an anti‑social personality disorder. He expresses the opinion that a custodial sentence would not help the defendant very much and that the defendant needs more support if she is to remain in the community.
The defendant’s unfortunate childhood, physical disabilities, apparent mental problems and, what I might call her general life circumstances, excite sympathy. She is a young woman. She was about 19 years old at the time the offences were committed. In the ordinary case these factors might have led to the conclusion that the sentence of imprisonment should be suspended. However, I do not think the Magistrate erred in not suspending the sentences in this case not only because of the circumstances surrounding the offending and the defendant’s past attitude to the rules of the road, but also because (as the evidence before me makes clear) the prospects of the defendant staying out of trouble in the future are poor.

The Magistrate did not make any error in relation to the driving while disqualified offences which would justify the intervention of this Court (House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 per Gleeson CJ and Hayne J at [3]-[4]).
The Community Service Order
The community service order was made by a magistrate on 15^th April 2003. It appears that it was signed by the defendant at 4.45pm on that day. The terms of the notice of the order which was signed by the defendant were as follows:
“1.Defendant to perform 320 hours of community service within 12 months from the date of this order.
2.Defendant advised that she is required to report by 5.00 pm today to the office of Correctional Services Department at Mount Gambier.
3.Defendant further advised that she is required to obey the lawful directions of the Community Services officer to whom the defendant is assigned.”
The affidavit of Ms Duigan which was filed in support of the application alleging a breach of the order stated that the non‑compliance was the failure to report within two working days to sign conditions. The affidavit also contained the following allegations:
“1.     ABSENCES:
Regina WILSON failed to report to the Mount Gambier Community Correctional Centre on the following dates; 17/04/2003, 24/04/2003, 01/05/2003 and 16/05/2003.
2.     WARNING OF SUSPENSION LETTER:
No Warning of Suspension letters were sent to Regina WILSON’S last known address of 11 Orr St. Mount Gambier 5290 as she had not started community service.
3.     SUSPENSION LETTER
No Notice of Suspension letter was sent to Regina WILSON’S last known address of 11 Orr St. Mount Gambier 5290 as she had not started community service.”
I have already referred to the three letters which were sent to the defendant requiring her to report to the Mount Gambier Community Correctional Centre to sign the conditions of her community service.
Before the Magistrate, a breach of the order was admitted by the defendant.
The defendant submitted that the Magistrate should have found that the failure to comply with the community service order was trivial, or that there were proper grounds on which the failure to comply should have been excused. (See s 71(7) of the CLSA.)
The defendant submitted that the failure was trivial because she could not have reported to the office of the Department for Correctional Services at Mount Gambier by 5.00pm on 15^th April 2003, that is to say within 15 minutes of signing the order. She was physically incapacitated and she was disqualified from driving. She could not have travelled from the courthouse at Mount Gambier to the office of the Department for Correctional Services within 15 minutes. There was no evidence of the distance between the courthouse to the office of Correctional Services although perhaps the Magistrate was aware of this fact. There was medical evidence before the Magistrate that the defendant has a significant problem with her left knee and left leg and that she has difficulty walking. The Magistrate did not make a finding that it was impossible for the defendant to comply with the order, a fact which if proved, might have provided her with a defence to the charge. The fact is the defendant admitted a breach of the order. This is not a case where the defendant arrived at the office of the Department for Correctional Services late on 15^th April 2003, or even the next business day. The fact is she made no effort whatsoever to report. Despite the defendant’s submissions to the contrary, I think I can take into account the fact that she was sent three letters asking her to report and that she ignored these letters. Having regard to all the circumstances it cannot be said that the breach was trivial.
The defendant submitted that there were proper grounds to excuse the breach because she could not have performed community service. Her physical condition and lack of qualifications prevented her from doing so. It is true that there was medical evidence before the Magistrate in the form of a report from Mr William Maling, a surgeon, to the effect that:
“I believe she is unable to work in any position which would necessitate standing and indeed it would be difficult for her to work in any sedentary position, as her education has not been sufficiently prolonged.”
It is also true that a court has power to vary the terms of an order for community service (s 50A CLSA) and that the Chief Executive Officer of the Department for Correctional Services is to notify the Court if he is of the opinion that suitable community service work cannot be found for a defendant because of his or her physical or mental infirmity (s 45 CLSA).
However, I think that there is a short answer to the defendant’s submission. Leaving aside the fact that the defendant never reported to the Department for Correctional Services, and therefore there was never any opportunity for any of the above procedures to be considered and activated, I am not satisfied on the evidence before me that suitable community services work could not have been found for the defendant. In those circumstances I do not think that there were proper grounds to excuse the breach.
The defendant’s challenge to the sentence imposed by the Magistrate in relation to the community service order must fail.
Conclusion
For these reasons I would dismiss both appeals.

[2004] SASC 39

22 March 2004