Winning v Police No. Scciv-03-1449

POLICE v WINNING
[2004] SASC 7
Magistrates Appeal
GRAY J
Introduction

This is an appeal against a sentence imposed by a magistrate. The appellant Lawrence John Winning was charged with two offences of driving whilst disqualified as well as offences of driving an unregistered uninsured vehicle. An order disqualifying the appellant from holding or obtaining a driver’s licence until further order had been made on 15 February 2001 On 19 April 2003 the appellant was apprehended driving an unregistered and uninsured vehicle. Two friends of the appellant’s children aged 12 and13 years were visiting the appellant’s home. Their parents had failed to pick them up as arranged. The appellant was unable to contact the parents. The appellant had arranged to visit his mother that afternoon and was anxious that the visiting children return home safely. He decided to drive the children to the nearest bus stop which was 6 kilometres away in McLaren Flat. The appellant was apprehended and charged with driving whilst disqualified.
On 14 June 2003 the appellant drove a short distance, approximately 200 metres, along a dirt road to get feed for his horses. Usually the appellant’s neighbour assisted with this task but they were unable to do so on this occasion. The appellant was again apprehended and charged with driving whilst disqualified.
The magistrate imposed an order of imprisonment of four months for the offence of driving whilst disqualified. Pursuant to section 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) the magistrate ordered the appellant to be released from custody after serving one month of that sentence. The balance of three months was suspended upon the appellant entering into a good behaviour bond for that period. The magistrate imposed a $400 fine for the offences of driving an unregistered and uninsured vehicle.
Magistrate’s Finding of Contumacy
The learned magistrate found that on both occasions the appellant drove in contumacious disregard of the court-ordered disqualification imposed on 15 February 2001. The magistrate rejected the suggestion that on either occasion the appellant had no alternative but to drive. The magistrate also rejected the suggestion that on both occasions the appellant felt he was doing the right thing or something that was relatively harmless. The magistrate observed:
You appear before the court as a 48 year old man who has a long history of driving offences. The number and nature of the offences committed by you in the past indicates a degree of irresponsibility. Included amongst your past offending are two prior convictions for driving disqualified.
A psychological report put before the magistrate revealed no evidence of any significant personality or psychopathological condition. In support of the submission that the driving was not contumacious, counsel for the appellant referred to the following extract from the report:
It is evident that he [the appellant] has tried to comply with the penalties set by the Court through the years, and I understand that he has successfully served a little over two years of the three year period of disqualification on this occasion, prior to the two breaches. In reviewing his decision making it is apparent that he gave more weight to immediate reasons and the need to drive as opposed to the potential long term consequences of driving and being apprehended…[t]here was no evidence of impulsivity or defiance directed at the court order, but more that he found himself in circumstances where there was a pressing need in his mind…
… Mr Winning’s lack of compliance is linked to a combination of his circumstances (ie, his rural setting with little alternate options and supports) and his decision making which gave relatively greater emphasis on these occasions to immediate needs rather than long term consequences. I find no evidence of personality or psychopathological factors that play in his case and also found no evidence of any deliberately defiant or malicious attempt to undermine the Court’s orders, but more ill-advised and poor judgement in each case.
The psychologist also noted that the appellant rationalised his decisions based on the fact that he was not driving on busy roads. He believed that there was a pressing need to drive and saw the driving as a minor breach of his restriction on driving.
The appellant’s offending and the psychiatric conclusion suggests that he was well aware that he was breaching the court order which disqualified him from driving and that his conduct was therefore in deliberate defiance of the court.
Criminal History of offending against the Road Traffic Act
The appellant has a long history of offending against the Road Traffic Act 1988 (SA). [1] His antecedents include two prior convictions for the offences of driving whilst disqualified. These offences occurred in 1993 and 1998. The appellant was imprisoned for 4 days for the 1998 offence.
[1] Offences Against Road Traffic Act 1988
1.20 May 1971 Illegal Use of a Motor Vehicle: No Conviction, $10.00 fine, Drivers Licence Disqualification (12 months).
2.17 November 1980 Drive With Excess Blood Alcohol: Convicted, $420.00 fine, Drivers Licence Disqualification (12 months).
3.28 April 1987 Drive Under The Influence: Convicted, $50.00 fine; Unregistered Vehicle: Convicted, $100.00 fine, Drivers Licence Disqualification (15 months); No Insurance: Convicted, $450.00 fine.
4.13 July 1989 Due Care: Convicted, $100.00 fine; Fail to Comply With Direction – Alcotest/Breath Analysis: Convicted, $4000.00 fine, Drivers Licence Disqualification (12 months); No Licence: Convicted, $100.00 fine.
5.03 October 1991 Drive With Excess Blood Alcohol: Convicted, $1200.00 fine, Drivers Licence Disqualification (2 years 6 months); Disobey Provisional Licence Condition: Convicted, Discharged without Penalty.
6.22 April 1993 Drive Under Disqualification: Convicted, $200.00 fine.
7.27 November 1995 No Licence: Convicted; Fail to Comply With Provisions in Relation to Convicted: $200.00 fine plus $155.00 costs.
8.03 July 1998 Drive with Excess Blood Alcohol: Convicted, $700.00 fine plus $138.00 costs, Drivers Licence Disqualification; Due Care: Convicted, Levy Only $28.00; Unregistered Vehicle: Convicted, Levy only $28.00; No Insurance: Convicted, Levy Only $28.00.
9.03 December 1998 Drive Under Disqualification: Convicted, Imprisonment (4 days), Costs Only $124.00.
10.27 July 2000 Unregistered Vehicle, No Insurance, No Licence: Convicted, $400.00 fine, $203.00 costs, Drivers Licence Disqualification (1 month).
11.15 February 2001 Drive Under the Influence: Withdrawn; Drive With Excess Blood Alcohol, Fail to Give Sufficient Warning Before Turning Right, No Licence: Convicted, $1500.00 fine plus $205.50 costs, Drivers Licence Disqualification (Until Further Order).
12.22 May 2002 Drive Unregistered Vehicle on a Road, Drive Uninsured Vehicle on a Road: Convicted, $125.00 fine plus $179.70 costs.
As earlier observed in February 2001 the appellant was disqualified from holding or obtaining a licence until further order. The appellant will be eligible to apply for a drivers licence in February 2004. The appellant was also fined for this offence. The appellant appears to have been undeterred by these and other earlier penalties.
Issues on Appeal
Counsel for the appellant submitted that the magistrate erred in finding the appellant’s driving to be contumacious. It was said that the magistrate failed to consider penalties other than imprisonment and in particular failed to consider the provisions of section 11 of the Sentencing Act. Counsel submitted the magistrate failed to give sufficient weight to the circumstances of the offending and the personal antecedents of the appellant. It was further submitted that the sentence was manifestly excessive.
Counsel for the Crown submitted that the Magistrate did not err in finding either offence contumacious. Counsel contended that the appellant was in Court when his licence was disqualified. On both occasions he was driving an unregistered and uninsured motor vehicle. The offences were the third and fourth offence committed by the appellant of driving whilst disqualified. The appellant committed the fourth offence two months after committing the third offence. He had at that time been served with a summons to attend court for the first offence and was due to appear in court two days after the date of the fourth offence. Counsel submitted that on both occasions the appellant knew that he was not entitled to drive and that it would be breaking a court order to do so.
Counsel for the Crown submitted that on both occasions there were other alternatives available to the appellant. His conduct was said to be in deliberate defiance of the Court. It was contended that the appellant’s two previous convictions of driving whilst disqualified demonstrated contumacy.[2]
[2] Woodward v Police [2000] SASC 246, [19] (Lander J); Johns v Police (Lander J, 24 June 1998, unreported).
Counsel for the Crown submitted that the magistrate expressly considered section 11(1)(d) of the Sentencing Act as evidenced by his statement ‘I am firmly of the opinion that imprisonment is the only appropriate penalty’. It was said that different considerations should apply to an offender before the court on a second or subsequent occasion.[3] Counsel argued that notwithstanding the appellant’s personal circumstances the sentence imposed was within the magistrate’s sentencing discretion having regard to the appellant’s prior convictions. The magistrate acted within the limits of his sentencing discretion.
[3] Police v Cadd (1997) 69 SASR 150, 180 (Mullighan J), 201 (Lander J).
Consideration of Issues
Contumacious Driving
Contumacious driving in the circumstances of this case means deliberate driving with knowledge of disqualification in circumstances where that driving was not momentary or ameliorated by an emergency. The assessment is one of ‘…the attitude of the driver at the time when the motor vehicle was driven.’[4] Driving which is merely foolish is not contumacious.[5] Counsel for the appellant put to the court that the appellant’s decision to drive on each occasion was merely foolish. This is difficult to accept when consideration is given to the appellant’s prior offending. As Lander J observed in Johns v The Police[6]:
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.
[4] Bates v Police (1997) 70 SASR 66; Bradford v Police (Debelle J, 9 November 1998, unreported); Woodward v Police [2000] SASC 246, 16 per Lander J.
[5] Harsharzi v Police (1998) 71 SASR 31.
[6] Johns v Police [1998] SASC S6729 (Unreported, Lander J, 24 June 1998).
As earlier observed, the appellant has a history of offending against the Road Traffic Act. He was well aware of the consequences to be incurred by breaching the court order. The history and account of events recorded in the psychological report support the conclusion that the appellant deliberately and wilfully breached the disqualification order.
In regard to the 19 April 2003 offence, the appellant ‘prioritised’ a social arrangement over his obligation to the law. This was not an occasion where it was necessary for the appellant to drive. There were plainly other alternatives available to the appellant. The appellant could have instead arranged for the person who was driving him to his mother’s home to take the children to the bus stop. A taxi could have been arranged. If all else failed the appellant could have walked with the children to the bus stop. Although the appellant claimed that his action was justified, it was not an occasion of emergency which required him to drive.
In regard to the 14 June 2003 offence the appellant again had alternatives available. No emergency existed. The appellant made a decision to breach the disqualification order with knowledge of the consequences if he were to be apprehended. At the time of this offence the appellant had been served with a summons only seven days beforehand with respect to the 19 April 2003 offence. He was due to appear in court two days later for that offence. The appellant’s actions were taken in total disregard of the disqualification order and disobedience to the authority that imposed it.
Consideration of penalty
Section 11 of the Sentencing Act requires the court to consider options aside from imprisonment. It specifies that imprisonment should not be imposed except in certain circumstances:
(1) A sentence of imprisonment may only be imposed--
(a) if, in the opinion of the court--
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b) if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).
The requirement of section 11(1)(iii) was satisfied. The fact that the appellant had previously been imprisoned for a like offence supports the magistrate’s decision to impose a penalty of imprisonment. A sentence of imprisonment was within the magistrate’s sentencing discretion.
Consideration of personal circumstances
The appellant’s personal circumstances at the time of the recent offending were quite different to circumstances when the appellant was imprisoned in 1998. At that time he was experiencing marital conflict due to his wife’s psychiatric problems. Counsel for the appellant submitted that mitigating circumstances should be considered. These included that the appellant had responsibility as the sole carer for his teenage children. The appellant lived in a rural area without ready access to public transport. It was pointed out that the appellant successfully complied with the court order for the two years prior to the offences. Furthermore the appellant had taken steps to reduce his consumption of alcohol and had been recently assessed by Drug and Alcohol Services as a “social drinker” and no longer “alcoholic”.
Counsel for the appellant submitted that insufficient weight had been given to these factors when considering the suspension of the sentence. Section 38 (1) of the Sentencing Act provides:
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond--
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
The magistrate’s conclusion that good reason did not exist to wholly suspend the sentence of imprisonment was justified by the circumstances of the offending and the appellant’s antecedents. It has not been demonstrated that the magistrate erred in his application of sentencing principles. He has had regard to all relevant circumstances. No irrelevant material was considered.
The magistrate extended appropriate leniency to the appellant by partially suspending the sentence of imprisonment. Section 38(2a) of the Sentencing Act provides:
However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order--
(a) direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b) suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
It is to be observed that the magistrate ordered that the appellant serve the minimum time in custody pursuant to section 38 (2a).
Conclusion
It was appropriate for the magistrate to conclude that the appellant’s driving was contumacious. No error has been shown in the exercise of the magistrate’s sentencing discretion. The sentence imposed by the magistrate was appropriate having regard to the appellant’s repeat offending and disregard of his legal obligations.
The appeal is dismissed.

[2004] SASC 7

14 January 2004