Wood v Police No. Scgrg-97-1597 Judgment No. S6543
[1998] SASC 6543
•29 January 1998
WOOD v POLICE
Matheson J (ex tempore)
The appellant was charged on a complaint in the Magistrates Court of Elizabeth with the following four counts:
On 7th day of May 1997 at SALISBURY in the said State
being the driver of a vehicle namely a motor vehicle on a road namely Emlyn Avenue turned the said vehicle to the left without giving a signal in accordance with the Road Traffic Regulations, 1962.
Section 74 of the Road Traffic Act, 1961.
This is a Summary Offence.
On the 7th day of May 1997 at SALISBURY in the said State, being a person who was required under Section 47e of the Road Traffic Act, 1961 to submit to an alcotest refused to comply with all reasonable directions of a member of the Police Force in relation to the requirement.
Section 47e of the Road Traffic Act, 1961.
This is a Summary Offence.
3. On the 7th day of May 1997 at SALISBURY in the said State, drove a motor vehicle on a road namely Dylan Court while he was disqualified from holding or obtaining a licence.
Section 91 of the Motor Vehicles Act, 1959.
This is a Summary Offence.
4. On the 7th day of May 1997 at SALISBURY in the said State, drove a motor vehicle on a road namely Dylan Court while there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act, 1961.
Section 47b of the Road Traffic Act, 1961.
This is a Summary Offence.
It is further alleged that the concentration of alcohol was 0.227 grams in a hundred millilitres of blood."
On the first count he was fined $100 with $138 costs. The second count was withdrawn. On the third count of driving whilst under suspension, he was imprisoned for 28 days. On the fourth count he was fined $1,500 with $28 costs and disqualified from holding or obtaining a driver's licence until further order. This appeal relates to the sentence of imprisonment imposed upon the third count.
There was no real dispute as to the facts which were as follows. At about 2.30 pm on Wednesday the 7th of May 1997, police were on patrol when as a result of information they received by police radio they went to the vicinity of Salisbury Highway and Middleton Street, Salisbury. The information related to a male adult who was driving a motor vehicle, registration number VEH-431 whilst under the influence of liquor.
Police located this vehicle travelling at about 40 kilometres an hour in Evan Avenue, Salisbury. The vehicle then did a right turn into Emlyn Avenue and a short time later braked, moved to the centre of the road and turned left into Dylan Court without indicating. Police followed the vehicle into a group of units at the end of Dylan Court. Police later checked the indicators and they appeared to operate correctly.
Police approached the driver of this vehicle, the appellant and had a conversation with him and detected a strong smell of liquor about his breath. He was requested to submit to an alcotest, and he became abusive and began to wave his arms about. Police then requested him to accompany them back to the Elizabeth Police Station for a breath analysis test and he said, "I'm, not fucking going nowhere." He then attempted to push past police and was arrested. He was taken to the Elizabeth Police Station.
Whilst en route to the police station it was established that the appellant was disqualified from driving in the Holden Hill Magistrates Court from the 20th November 1996 until the 19th May 1998 in relation to a charge of driving with excess blood alcohol.
Whilst at the police station the appellant was taken to the breath analysis room and submitted to a breath analysis test recording a result of 0.227 grams in a hundred millilitres of blood. The breath analysis operator described the appellant as moderately affected. He did not wish to answer any questions when spoken to by police.
Counsel for the appellant made submissions in the course of which he asked that any imprisonment imposed on the third count be suspended. Those submissions included the following matters.
The appellant was suffering from depression at the time of the offence in May of 1997 and he is presently suffering from depression.
This depression led to his abuse of alcohol.
This incident occurred whilst the appellant was under the influence of alcohol and his judgment was impaired.
The appellant had commenced drinking before noon on the day in question. He did not intend to drive a car and had not driven whilst disqualified. He ran out of alcohol and wished to go to a hotel to purchase more alcohol. He was at the home of his girlfriend, Chris Harris-Walker, at that time. She had gone to work. He saw her car keys on the table and without thinking, took her car to the hotel. He was apprehended on the wayback to his girlfriend's house."
Counsel for the appellant also tendered a report from a psychiatrist, Dr Helen Tingay, dated 3 September 1997. Dr Tingay referred to a serious accident in which the appellant was involved on 1 January 1994 and, in the opinion of Dr Tingay, the appellant, at the time of her examination, was suffering from a post-traumatic disorder, anxiety and depression. Counsel also tendered a report from a psychologist, Mr John S Cheetham, in which he concluded as follows:
"I would be confident, given his education training and prior work experience, willingness to find other solutions to depression and use of alcohol, that he has every chance of succeeding in his role."
Mr Vadasz also tendered a reference from a Mr Doug Redpath. According to Mr Vadasz, who appeared for the appellant on the appeal, after Miss Lindquist had made the submission in the Magistrates Court that any term of imprisonment be suspended, she advised the court that the prosecution did not oppose any such suspension. That aspect is not covered in the affidavit filed by the prosecutor Mr Mark Wright, and counsel for the respondent before me is not in a position to either admit or deny what was said. However, in view of the remarks of this court in Malvaso's case (1989) 50 SASR 503 at p.509, I do not think that matters in all the circumstances of the case.
In his short reasons, the learned magistrate said that he took into account all the matters put by counsel for the appellant in mitigation and I see no reason to question what he said. His remarks included the following passage:
" I appreciate that you have your own problems but it is not for you to potentially share them with innocent members of the community by taking them on to the roadway through drink driving. Features of aggravation of your offending are that the offences were committed less than six months after the period of disqualification was imposed and more particularly you were driving under the very circumstances that the court sought to protect the public from. I cannot see my way clear to suspending the sentence. In fixing the term I give you credit for your plea of guilty. "
I am aware of what has recently been said by various members of this court upon on a charge of driving whilst under suspension in Police v Cadd & Others (1997) 69 SASR 150. I have also been referred to the judgment of Perry J in Bates v Police unreported judgment S6430 delivered on 19 November 1997. At pp8-9, his Honour said:
" In his reasons for judgment Mullighan J said that he used the word "contumacious" in the sense explained in Witham v Holloway. He said further:
‘It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification and disobedience to the authority which imposed it.’
The passage referred to by Mullighan J in the judgment of the High Court in Witham v Holloway is in the judgment of McHugh J, who delivered a separate judgment from that jointly delivered by Brennan, Deane, Toohey and Gaudron JJ. In his judgment, McHugh J adopted the dictum of Lord Wilberforce speaking on behalf of the House of Lords in Heatons Transport (St Helens) Ltd v Transport & General Workers Union, where Lord Wilberforce ‘was at pains to point out that wilful breach was not the same as "contumacious or insulting behaviour or interference with the administration of justice"’.
In the judgment of the majority in Witham v Holloway, it was put this way:
‘However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.’
In AMIEU and Ors v Mudgimberri Station Pty Ltd, in their joint judgment, Gibbs CJ and Mason, Wilson and Deane JJ spoke of ‘wilful disobedience to a court’s order, especially if it occurs in circumstances where the conduct amounts to public defiance.....’.
Although contumacy has been defined as "wilful disobedience to the summons or order of the court", it appears from these authorities that the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance. At least, that is the position in cases of contempt of court.
Be that as it may, the words in s91 of the Motor Vehicles Act 1959 are relevantly:
‘5. A person must not drive a motor vehicle on a road while his or her licence is suspended or while he or she is disqualified from holding or obtaining a licence.
Penalty: for a first offence - Division 7 imprisonment’
Unassisted by the authority of the decision of the Full Court in Cadd, one might have thought that to regard the penalty of imprisonment as reserved for cases involving a contumacious breach of the section, would be to add words which do not appear in the section, even when considered in conjunction with s11 of the Criminal Law (Sentencing) Act.
Be that as it may, I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress."
I agree with what Perry J there said and, in my opinion, counsel for the respondent was correct in referring to the appellant's conduct in this case as contumacious. The background and circumstances of the appellant did justify some compassion. However, the maximum penalty for a first offence of driving whilst under suspension is six months imprisonment. I think, in all the circumstances, a sentence of 28 days was appropriate and I am not persuaded by Mr Vadasz's submission that his Honour erred in not suspending it. The appeal will be dismissed. There will be no order as to costs.
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