ZAFRY v Police - [2009] SASC 191

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ZAFRY v POLICE
[2009] SASC 191
Judgment of The Honourable Justice Nyland
2 July 2009
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
Appellant charged on two separate complaints - one occasion of driving with excess level of blood alcohol (PCA) and driving unregistered motor vehicle - another occasion of driving unregistered and driving with excess level of blood alcohol and driving while disqualified - offences committed approximately six weeks apart - plea of guilty to all charges - immediate custodial sentence of 28 days imposed by Magistrate - whether sentence should have been suspended - test applied by Magistrate whether it was appropriate to suspend - whether there was good reason to suspend.
Appeal allowed - finding that the appellant's offending was contumacious BUT substantial changes in personal circumstances of appellant since commission of offences - question of rehabilitation of appellant - substantial impact upon dependants of appellant - good reason to suspend sentence of 28 days imprisonment upon condition that appellant enter into bond in his own recognisance in the sum of $200 to be of good behaviour for a period of two years.
Road Traffic Act 1961 s 47B(1)(a); Motor Vehicles Act ss 9, 91, referred to.
Police v Maxwell (1998) 102 A Crim R 374; Woods v Samuels (1974) 8 SASR 465; R v Fowler [2006] SASC 18; R v Locke (1973) 6 SASR 298, applied.
Mill v Police [2007] SASC 253; Nash v Police [2009] SASC 112; G v Police (1999) 74 SASR 165; Sheean v Police [1999] SASC 187; Bates v Police (1997) 70 SASR 66; Veen v R No 2 (1988) 164 CLR 465; Barnes v Police [2006] SASC 295; Crafter v Police [2001] SASC 336; Police v Cadd (1997) 69 SASR 150, considered.

ZAFRY v POLICE
[2009] SASC 191
Magistrate’s Appeal

NYLAND J: This is an appeal against sentence. The appellant was charged on two complaints. On the first complaint the appellant was charged with driving with an excess level of blood alcohol (PCA) on 11 August 2008, contrary to the provisions of s 47B(1)(a) Road Traffic Act 1961. On the second complaint the appellant was charged with three offences committed on 20 September 2007. First, a charge of driving unregistered, contrary to s 9 Motor Vehicles Act 1959, secondly, PCA, and thirdly, driving disqualified contrary to s 91 Motor Vehicles Act 1959.
On 24 October 2008 the appellant appeared before a Stipendiary Magistrate in the Magistrates Court at Adelaide. He pleaded guilty to all four offences. On the first complaint, that is the offence committed on 11 August 2007, the Magistrate fined the appellant the sum of $1,200 and he was disqualified from holding a driver’s licence for a period of four months. On the second complaint, the appellant was fined the sum of $1,200 with respect to the charges of driving unregistered and PCA. On the PCA charge, the appellant was also disqualified from holding or obtaining a driver’s licence for a period of 18 months, to be served cumulatively upon the four months imposed for the offence committed on 11 August 2007. On the offence of driving whilst disqualified, the appellant was sentenced to a period of imprisonment of 28 days, to commence forthwith, which the Magistrate declined to suspend.
This appeal relates only to the order for imprisonment imposed by the learned Magistrate with respect to the drive disqualified charge. The appellant asserts that the sentence is manifestly excessive as good reason existed to suspend the sentence of imprisonment, but the Magistrate failed to exercise her discretion so to do.
Background
On 11 August 2007, the appellant had been out drinking alcohol with a group of friends after work. He did not intend to drive but one of the members of the group did not want to leave his car in town. As the appellant believed that his friend was more intoxicated than he, the appellant decided to drive his friend’s car home. In due course the appellant was stopped by police. A blood alcohol reading disclosed a reading of .19. Due to that reading, the appellant was issued with an instant disqualification notice for a period of 12 months.
On 19 September 2007 the appellant was at his girlfriend’s house. He consumed some alcohol after celebrating obtaining a new job. He said he had some drinks as he believed he did not have to work the following day. Later that night, however, he received a text message advising him that he was required to be at work the next morning. He therefore decided to drive home in order to change and prepare for work. He made that decision, notwithstanding that he was at that time disqualified from holding or obtaining a driver’s licence as a result of the disqualification imposed on 11 August 2007. At about 4.45 am, as he was on his way home, the appellant was stopped by police who noticed that the appellant’s car registration had expired. The appellant was subsequently alco-tested and returned a reading of .172. He told the police that the vehicle was not his and he did not know it was unregistered until he was stopped by them. He admitted that he knew it was an offence to drive with PCA and also to drive when disqualified.
The appellant has three prior convictions for PCA offences, recorded on 10 January 1996, 27 March 1997 and 12 February 2002. The appellant also has a prior conviction for driving disqualified, which was committed on 6 October 1996. On 10 January 1997 he was convicted with respect to that offence and was ordered to serve five days imprisonment.
Reasons of Magistrate
In her remarks on penalty, the learned Magistrate noted the appellant’s earlier convictions and commented:
It is quite plan (sic) you must have been aware of the risk you ran at the time when you drove on that second occasion, given you previously had a period of imprisonment imposed upon you for driving whilst disqualified.
She noted that the appellant had now stopped drinking and had disassociated himself from the people with whom he had been drinking and that he had become a father a few months earlier. She referred to the fact that since the commission of these offences the appellant had commenced a new position of employment and had a key role in a number of multi million dollar projects. She was aware that a lengthy period of disqualification would have an impact on his employment. She had regard to a number of character references which indicated that the appellant more recently had a change of attitude and was putting a great deal of energy into overcoming his problems. She also took into account his plea of guilty. She considered however that in all the circumstances it was “not appropriate” to suspend the period of imprisonment she was about to impose. The learned Magistrate referred to the fact that the appellant had previously been before the court for driving disqualified and on that occasion had also been drink driving. She pointed out that this was not a case of someone being involved in an urgent situation and commented that the appellant could have arranged alternative transport, be it by taxi or with assistance from his girlfriend. The fact that the appellant had driven deliberately in contravention of the disqualification order in her view made it necessary to impose a penalty which deterred not only the appellant but other persons from similar offending. She pointed out that but for his guilty plea, she would have imposed a sentence of six weeks imprisonment. She then imposed the penalty to which I have earlier referred, that is a sentence of imprisonment for a period of 28 days, and she declined to suspend that sentence.
Appellant’s Submissions
On the hearing of the appeal, Mr Dadds appeared as counsel for the appellant. He acknowledged that the appellant’s act of driving on 20 September 2007 involved some level of contumacy. He submitted however that the appellant’s offending on that occasion, and the alcohol intake which facilitated it, were brought about by some difficult personal circumstances, including uncertainty at work, relationship strife and financial concerns. He acknowledged that the appellant had three prior convictions for drink driving, but said that since 20 September 2007 the appellant’s personal circumstances had significantly changed. The appellant was now established in secure employment, had become a father and had generally developed a more responsible attitude. He further submitted that the appellant’s relationship with his girlfriend had gained strength and become settled. The appellant was the sole provider for his small family and he had consciously disassociated himself from personally destructive relationships. Of particular relevance was the fact that he had entirely stopped consuming alcohol, a problem which had underpinned a great deal of his prior offending .
He submitted that the appellant was contrite, had pleaded guilty and had cooperated with police. Mr Dadds submitted that the practical effect of an immediate custodial sentence on the appellant, his dependents and his employer was likely to be considerable.
Mr Dadds also submitted that the learned Magistrate had fallen into error in a number of ways. First, by having regard to the driving disqualified offence, as aggravated by the drink-driving offence. The PCA offence was a separate offence and the appellant’s intoxication was irrelevant to the question of penalty for the offence of driving disqualified. Secondly, the learned Magistrate erred in having regard to the appellant’s previous conviction for driving disqualified, which had occurred 11 years earlier. Thirdly, the learned Magistrate had paid insufficient regard to the appellant’s personal circumstances generally and, in particular, with the improvement in the appellant’s behaviour and the corresponding wide-ranging negative effect that an immediate custodial sentence would have on him and his dependants. Fourthly, she had failed specifically to consider whether “good reason” existed to suspend the term of imprisonment, by expressing the test as whether it would be “appropriate” to suspend.
Respondent’s Submissions
Ms Hughes appeared for the respondent on the hearing of the appeal. She submitted that no error had been identified on the part of the learned Magistrate. She submitted that the sentence imposed by the Magistrate fell within the accepted standard for offences of this type and was not manifestly excessive. The offence of driving disqualified is a difficult offence to detect and deterrence was an important factor which the Magistrate was required to take into account. In this case it was a subsequent offence. Ms Hughes submitted that the learned Magistrate had taken into account all of the appellant’s personal circumstances, including the submissions put to her with respect to the impact on the appellant’s employment as well as his dependants. Although the impact of a sentence of imprisonment upon the appellant’s employment was a relevant matter, it was not such as should be given greater significance over and above other aspects of sentencing for this type of offence. She submitted that it was incumbent on the appellant to satisfy the court that the Magistrate had acted on some incorrect principle or taken into account an irrelevant matter, or failed to have regard to a relevant matter. If no precise error could be identified, the appellant was obliged to demonstrate that the sentence was nevertheless so unreasonable that it could not be regarded as a proper exercise of the sentencing discretion. Ms Hughes submitted, however, that no error had been demonstrated by the appellant and the sentence of imprisonment imposed by the learned Magistrate was well below the prescribed maximum penalty, which was a term of imprisonment not exceeding two years. The fact that the learned Magistrate had imposed a modest sentence, was a recognition of the personal circumstances of the appellant which she had properly taken into account.
Although the appellant’s prior conviction for driving disqualified was recorded in 1997, Ms Hughes pointed out that s 91 Motor Vehicles Act 1959 did not place a time limitation on the date of a previous offence in order for a later offence to be classified as a “subsequent offence”. Ms Hughes acknowledged that there were aspects of the personal circumstances of the appellant which might have permitted the learned Magistrate to exercise her discretion to suspend the sentence. There were however cogent reasons in this case to find that personal considerations were outweighed by the circumstances in which the offence was committed.
Relevance of PCA offence and previous conviction
In Police v Maxwell[1] counsel for the defendant argued that the defendant’s offence of drive disqualified was mitigated by the absence of circumstances of aggravation, such as intoxication, excessive speed, recklessness or dangerousness and lack of embarrassment caused to other road users. He did however have previous convictions for driving disqualified. Bleby J pointed out however that those matters described by counsel as aggravating features would normally constitute offences in themselves for which an offender would be separately punished and said:
Here the offence is driving whilst disqualified. All that is required is an act of driving. The circumstances of aggravation or otherwise will relate to the circumstances in which the defendant came to be driving, whether the act of driving was trifling or substantial, and the reasons and the purpose for which the defendant was driving. Above all, it will depend on whether the offence can be said to be contumacious, in the sense discussed by Mullighan J in Police v Cadd and Others, (1997) 69 SASR 150 at 179. That is, whether the defendant was driving with an attitude of total disregard of a disqualification in disobedience to the authority which imposed the suspension.[2]
[1] (1998) 102 A Crim R 374.
[2] Ibid at para 18.
In Maxwell Bleby J considered no mitigating circumstances had been advanced relating to the reasons for, or purpose of, driving. The defendant was driving for his own personal convenience in circumstances where he knew, or must be taken to have known, that he was still disqualified. It was therefore a blatant breach. Bleby J went on to discuss the relevance of previous convictions[3] by reference to the dicta of the majority of the High Court in Veen v R No 2[4] in which the court said:
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.[5]
[3] Ibid at para 21.
[4] (1988) 164 CLR 465.
[5] Ibid at para 22.
Bleby J went on to say:[6]
… Unlike many other offences, the offender’s previous record may well indicate a continuing attitude of disobedience to the law which is directly relevant in assessing the gravity of the offence in question.
[6] (1998) 102 A Crim R 374 at para 24.
These remarks were cited with approval by Gray J in Barnes v Police[7]. In that case, Gray J also cited Crafter v Police[8] in which Mullighan J said:
The learned Magistrate obviously took a very serious view of the manner of driving of the appellant. It is fair to say that he behaved as a lout and he is fortunate that he was not charged with a more serious offence. However, as he must be separately punished for the offence of damaging a road, this conduct should not be regarded as a matter of aggravation when considering the sentence for driving disqualified. He is not to be punished twice for the same conduct: Long v Police (1998) 72 SASR 515.
[7] [2006] SASC 295 at para 18.
[8] [2001] SASC 336 at para 15.
In this case the fact that the appellant had a prior conviction for drive disqualified was relevant to the assessment of his conduct on this occasion and a consideration of whether it could be regarded as contumacious. The reference however by the Magistrate to the fact that the appellant was intoxicated on this occasion as he had been in the past, suggests that she treated that aspect of the matter as a circumstance of aggravation, when imposing the penalty for the offence of driving disqualified.
Contumacy
Counsel for the appellant acknowledged however that there was a degree of contumacy surrounding the circumstances in which the appellant committed this offence and that is evident from the fact that the period of disqualification had been imposed less than six weeks prior to the commission of the present offence. Although the appellant also had a previous conviction of driving disqualified, which indicated an attitude of ‘disobedience to the law’, Mr Dadds pointed out that conviction had been recorded some 11 years earlier. Nevertheless, there was no situation of emergency or any other particular circumstance to explain the appellant’s behaviour on this occasion. As the Magistrate indicated in her reasons, the appellant could easily have obtained alternative means of transport or obtained assistance from his girlfriend. The question which therefore arises is whether the level of contumacy demonstrated by the appellant’s conduct was such as to require the imposition of an immediate custodial sentence. This is an issue which has been the subject of considerable debate since the decision of the court in Police v Cadd[9].and was most recently considered by Doyle CJ in Nash v Police[10] in which he held that
… the attitude of the offender to the disqualification or licence suspension is of particular significance. The attitude of the offender is to be determined by an assessment of the circumstances of the breach and the reason given by the offender for the breach.
[9] (1997) 69 SASR 150.
[10] Unreported Judgment delivered 4 May 2009.
In Bates v Police[11] Perry J said:
… 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.
[11] (1997) 70 SASR 66 at p 73.

In Sheean v Police[12] however, Perry J referred to his comments in Bates and went on to say:
However, those observations prompt me to draw attention to an undesirable tendency which I think has emerged since the decision of the Full Court in Cadd. The impression which I have gained from a number of appeals in such cases which since then have come to my attention, is that magistrates have seized upon the word "contumacious" as indicating in the first place that, if the circumstances of an offence can properly be characterised as such, imprisonment is more or less inevitable, but if not, imprisonment is then effectively disregarded as an appropriate sentencing option. Such an approach is clearly not what the majority of the Full Court in Cadd intended.
While it is obvious from my remarks in Bates that I would not have agreed with the decision of the majority had I been part of the Court which decided Cadd, the authority of the Full Court must be respected. More particularly, it is important that the precise formulation put forward by Mullighan J in the passage which I have cited from his judgment is strictly adhered to, and the tendency to which I have referred, resisted.
If that is done, it will follow that in a particular case, "contumacious" offending will normally be visited by an unsuspended term of imprisonment. But in such a case it may nonetheless be appropriate to adopt a sentencing option short of a that, either where "good reason" exists to suspend a sentence of imprisonment within the meaning of s38 of the Criminal Law (Sentencing) Act, or where some other course might be appropriate, having regard to relevant sentencing principles based on other statutory provisions, or at common law.
Furthermore, even in cases not involving "contumacious" offending, it may nonetheless be appropriate to impose a custodial term of imprisonment, although as Mullighan J pointed out in Cadd in the passage from his judgment which I have cited, in such cases "the starting point need not necessarily be imprisonment"[13].
[12] [1999] SASC 187.
[13] Ibid at para [11] to [14].
Suspension of sentence
There does not appear to be anything about the circumstances of the appellant’s breaching behaviour to support an argument that he should receive other than an immediate custodial sentence for that offence. Nevertheless, Mr Dadds submitted that there were matters arising out of the appellant’s personal circumstances which provided “good reason” to suspend, but the learned Magistrate had failed to consider whether “good reason” existed to suspend the sentence when she expressed herself in terms of whether it would be “appropriate” to do so. The sole test in relation to suspension however is whether or not the court considers that “good reason” exists for so doing[14]. In G v Police[15] Perry J discussed the question of general deterrence, which he said must always play a part, but he went on to say that there will be cases in which the question of general deterrence will yield to personal factors or other matters which might amount to good reason to suspend. In Nash CJ also said:[16]
…if the offences under consideration result from, and evidence, an attitude to a disqualification order of the kind that I have described, the justification for an order suspending a sentence of imprisonment (if imprisonment is appropriate) can be found only in the personal circumstances of the offender, and it will be more difficult in such a case to find good reason to suspend the sentence in respect of a subsequent offence …
[14] R v Fowler [2006] SASC 18 para 58.
[15] (1999) 74 SASR 165 at 170.
[16] [2009] SASC 112 at para 47.
In this case there was a large body of evidence before the learned Magistrate to the effect that in the 12 months since the commission of the offence, the appellant had effected significant changes in his personal situation. The learned Magistrate was provided with three character references, one of which was from the appellant’s current employer which indicated that he had taken up a position of considerable responsibility and was occupying a responsible, productive role in the community which included carrying out volunteer work at Minda on a regular basis, where his mother was employed. He had a new family dependent on his income and it appeared that a sentence of imprisonment would severely compromise not only his welfare, but that of his dependants and would affect his ability to continue effectively in his current employment.
The circumstances in this case are not dissimilar to that which arose in Barnes v Police[17], in which Gray J said:
Given the appellant’s progress made toward rehabilitation in recent times and, in particular, his positive response to the conditions imposed upon him pursuant to the good behaviour bond with respect to the July 2004 offending, I do not consider that immediate imprisonment is appropriate. Immediate imprisonment at this stage in the appellant’s life is likely only to frustrate the rehabilitative progress made to date (footnote omitted). This consideration weighs particularly heavily in light of the fact that the appellant committed the subject offence some two years ago, prior to the progress just outlined, and that the appellant has not offended in any way since August 2004.
[17] [2006] SASC 295 at para 26.
Similarly, in Mill v Police[18] White J commented that although the case for suspension was not strong:
When regard is had to the very short period of imprisonment which was ordered, together with the significant impact which that short period, if served, is likely to have on the appellant’s employment, I am satisfied that good reason to suspend the sentence has been shown.
[18] [2007] SASC 253 at para 20.
In this case, I believe the Magistrate fell into error in that she gave undue weight to the circumstances which demonstrated that the appellant’s driving behaviour was contumacious and by so doing failed to have any or sufficient regard to whether there was “good reason” to suspend the sentence that she intended to impose. In this case, even a short period of imprisonment was likely to have a significant and long reaching impact on the appellant, his family and his employment, it would compromise the future of his partner and child and his rehabilitation would be seriously compromised.
It should also be borne in mind that a suspended sentence is not to be taken lightly, as Walters J said in Woods v Samuels:[19]
I reject any suggestion that a suspended sentence has been used as a “soft option”, or as what might be described as a mere loophole in a case where a Judge has not been quite certain what to do. After all, a sentence of imprisonment, followed by a suspension, remains a sentence of imprisonment (R v O’Keefe per Lord Parker LCJ at p.32; Kennedy v Spratt per Lord Reid at p.91); and an offender dealt with in this way will continue to be at risk, during the period of suspension, of having his suspended sentence reactivated on reconviction, with the original term unaltered. … Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case.
[19] (1974) 8 SASR 465 at 468.
Further, as Bray CJ said in R v Locke:[20]
(I)n the case of a suspended sentence the operation of that sentence is automatic on the defendant being brought before the court and proved to have broken the bond, either by committing some other offence or by failing in any of its other conditions. The court in such a case has no discretion. It must decree the automatic operation of the suspended sentence. Anyone released under a suspended sentence therefore knows, or ought to know that the sword of Damocles hangs over his head and that only his continued good behaviour and observance of the bond can prevent his automatic incarceration under the suspended sentence.
[20] (1973) 6 SASR 298 at 301.
Despite the appellant’s prior record and the degree of contumacy associated with the commission of this offence, there appears to have been a substantial turn around in the appellant’s personal situation. The appellant cooperated with the investigation, he pleaded guilty and was clearly contrite. There are excellent prospects for his rehabilitation which would be substantially affected by the imposition of an immediate custodial sentence. There have been fundamental and substantive changes in the appellant’s personal circumstances and attitude since the offence was committed. On the balance, I have decided that there is good reason to suspend the sentence to facilitate the continued rehabilitation of the appellant.
The appeal will therefore be allowed to the extent that there will be an order that the sentence of imprisonment of 28 days imposed by the learned Magistrate on 24 October 2008 be suspended upon condition that the appellant enter into a bond on his own recognisance in the sum of $200 to be of good behaviour for a period of two years.