WRIGHT v Police - [2005] SASC 462

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WRIGHT v POLICE
Judgment of The Honourable Justice Duggan
6 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence imposed by a magistrate for offence of driving whilst disqualified contrary to Motor Vehicles Act 1959, s 91 - appellant sentenced to 4 months imprisonment - ordered to serve period of 1 month imprisonment and remaining 3 months was suspended upon condition that appellant enter into a good behaviour bond - held that the offending was contumacious but that sentence was manifestly excessive - sentence of imprisonment set aside and in lieu thereof the appellant sentenced to 21 days' imprisonment.
Motor Vehicles Act 1959 s 91, s 74(1), (2), referred to.
Police v Cadd (1997) 69 SASR 150; Rhodes v Police [1999] SASC 191, applied.

WRIGHT v POLICE
[2005] SASC 462
Magistrates Appeal

DUGGAN J. The appellant pleaded guilty to the offences of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence contrary to s 91 of the Motor Vehicles Act 1959 (“the Act”) and driving a motor vehicle while not wearing a seat belt. The offences took place at Seaford Rise on 4 March 2005. The appellant was convicted on each count. He was imprisoned for four months on the first count, but an order was made that he serve a period of one month imprisonment and that the remaining three months be suspended on condition that he enter into a bond to be of good behaviour. No penalty was imposed in relation to the second count. The appellant has appealed against the sentence imposed on the first count.
The appellant was 26 years old at the time of the offence. The disqualification from holding or obtaining a driving licence was imposed on 30 August 2004 when he was convicted of driving whilst unlicensed and failing to obey a red light. These offences had been committed on 25 June 2004. The appellant was fined $500 and disqualified from driving for a period of three years.
When the present matters were before the Magistrates Court the prosecution alleged previous convictions for the offences of driving with excess blood alcohol level and driving without a licence. These offences were committed by the appellant on 18 January 2001 and sentence was passed on 10 May 2002. The appellant was fined $700 on the first count and $50.00 on the second count. He was disqualified from holding or obtaining a driving licence for 12 months.
The appellant had also been convicted on 9 January 2001 for offences of driving while unlicensed and driving a motor vehicle contrary to a defect notice. He was fined $250 for these offences.
The appellant was warned as to the consequences of driving while disqualified when he appeared before the court on 30 August 2004 and 10 May 2002.
When making submissions on the present offences, counsel who acted for the appellant in the Magistrates Court told the magistrate that the appellant and a partner conducted a painting and decorating business which had been in operation for some years. On 4 March 2005 the appellant’s partner telephoned him to say that he was ill. A painting job had been arranged for the following day. The van which they used in the business was unregistered. It was parked at the appellant’s home.
Defence counsel told the magistrate that the appellant panicked. He felt that not only was the current painting and decorating job in jeopardy, but also the future of the business. She said he acted on the spur of the moment “in circumstances of perceived urgency and foolishly decided to drive”.
The court was also told that the appellant suffered from haemophilia and that, in the past, he had struggled to maintain regular employment.
The magistrate found that the offence was contumacious in the sense referred to in Police v Cadd (1997) 69 SASR 150 at 179. In that case it was said that contumacious offending is “committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it”.
On the hearing of the appeal Mr Katsaras, for the appellant, stressed the subjective nature of this test. He said that the court must determine the actual state of mind of the offender. It was conceded that the circumstances in which the appellant said he found himself would not have caused everyone to panic. However, it was submitted that it was open to the court to find that the circumstances in which this particular offender found himself were such as to cause him to panic.
Reference was made to Rhodes v Police [1999] SASC 191. In that case Nyland J concluded that the appellant’s conduct was wilful and foolish, but not contumacious. He had acted in circumstances which he perceived to be urgent. Nyland J held that, in the light of this consideration and the appellant’s personal circumstances, an immediate term of imprisonment was not warranted.
It goes without saying that each case will turn on its own circumstances. In my view, it is clear that the offending in the present case was contumacious. There was nothing in the circumstances which could be regarded an emergency so as to lead to panic. Furthermore, it is highly unlikely that the circumstances described by the appellant would have led him to believe that the situation was urgent and that he panicked as a result. The appellant was well aware of the nature of the disqualification order and he had been warned by the court of the consequences of disobeying such an order on two occasions. There is enough in the circumstances of the incident to establish that on this occasion his attitude was one of complete indifference to the order of the court.
Next it was submitted that the magistrate erred in identifying certain matters as circumstances of aggravation in the following passage of his sentencing remarks:
The defendant has a number of relevant court appearances but the one that gives rise to the disqualification was imposed on 30 August 2004 for the offence of driving unlicensed. I am told that was a Section 74(2) offence and I am told that the defendant had a relevant prior court appearance, namely in May 2002 for driving unlicensed, again a Section 74(2) matter, which means that the defendant has never held a licence. So on 4 March 2005 the defendant not only was driving whilst disqualified, contrary to the terms of the order of this court on 30 August 2004 (and the disqualification there applied from that date until 29 August 2007) but he was also driving a vehicle in circumstances where again he evidently had no licence. So clearly there are two at least egregious blunders on his part, three if you count the seatbelt matter (but I think that falls into the background in terms of the seriousness of offending on 4 March 2005).
At the time of the present offences, the appellant was disqualified from holding or obtaining a driver’s licence. It was argued that it cannot be an aggravating factor that, at this time, he “had no licence”. Under the terms of the order he was prevented from holding or obtaining a licence. The comment that the appellant drove while disqualified and, at the same time, drove without a licence is to state the obvious. It seems the point which the magistrate wished to make was that the appellant did not have a licence at all in the sense that he had never been licensed to drive. It was relevant to sentencing that the appellant had never held a licence and yet chose to drive. His driving record as disclosed by these and other road traffic offences which I have not mentioned, suggest that he is not an infrequent driver on public roads. These matters are relevant to the issue of personal deterrence.
The other error which is alleged is the magistrate’s reference to the court appearance in May 2002 as being a “section 74(2) matter”.
Section 74 of the Motor Vehicles Act 1959 creates two classes of offences of driving while disqualified. Section 74(1) relates to a person who drives a motor vehicle of a particular class on a road and is not authorised to drive a vehicle of that class, but has previously been so authorised (emphasis added). The maximum penalty for this offence is a fine of $1250.
Section 74(2) creates an offence of driving a motor vehicle of a particular class when the driver is not and has never been authorised to drive a motor vehicle of that class on a road. The maximum penalty for a first offence is $2500 and, for a subsequent offence, $5000 or imprisonment for one year.
These sections came into operation on 15 December 2003. The previous legislation provided for a single offence of driving without a licence. It did not distinguish between a driver who had never been authorised to drive and a driver who was not authorised to drive, but who had previously been authorised to drive a vehicle of the relevant class. The maximum penalty was a fine of $1250.
Accordingly, it was incorrect to say that the offence of driving unlicensed in May 2002 was a s 74(2) matter. There was no offence under s 74(2) at that time.
However, it is difficult to see how this error could have affected the sentence which the magistrate imposed. Again, the inference which he drew from the mistaken view that it was a s 74(2) offence was that the appellant had never held a licence. The assumption made by the magistrate was correct. It is not in dispute that the appellant has never been licensed to drive.
In my view none of these matters vitiate the sentence which was imposed.
There remains the argument that the sentence was manifestly excessive. Although part of the sentence was suspended, the appellant was sentenced to imprisonment for four months. This is the first occasion on which he has been sentenced to imprisonment. It was also his first conviction for an offence of this nature. On the other hand, he has never held a licence and his offence demonstrates a clear contempt of the court.
The maximum sentence for a first offence of driving whilst disqualified is imprisonment for six months. In my view the sentence of imprisonment for four months was manifestly excessive in the circumstances of the present case.
The sentence of imprisonment for four months will be set aside and, in lieu thereof, the appellant will be sentenced to imprisonment for 21 days. The other orders imposed by the magistrate will remain.
I have had regard to the matters relevant to suspending the sentence, but it is my view that no ground exists for suspending the sentence in whole or in part.