JOHNS v POLICE No. SCGRG-98-578 Judgment No. S6729 [1998] SASC 6729

I am told, as was the Magistrate, that he complied with the notice until the day of the offence. He made arrangements in his employment for an apprentice to be available to drive him to and from places at which he had to work.

An eighteen year old friend drove the appellant and his two sons to Port Pirie for a BMX race meeting. That was by previous arrangement and consistent with his recognition that he was disqualified from driving. They remained at Port Pirie for three days. The young man won a BMX race, celebrated and drank alcohol to excess. The appellant drove the young man and two children back from Port Pirie and in the course of the trip was detected driving at 128 kilometres per hour in a 110 kilometres per hour zone. He told the Police he had a licence but when he arrived home he went to the Holden Hill Police Station and confessed that his licence had been disqualified.

The appellant, who was born in England, but has lived in Australia for twenty-six years, is aged forty-two years. He was divorced from his wife eighteen months ago. They have three children: a daughter aged fifteen, a son aged fourteen and another son aged nine years. His daughter and fourteen year old son live with him. The appellant is involved with his sons in BMX racing. His sons have achieved some success in that sport. The appellant is a member of the Committee of the Club for which the boys race.

The appellant's father died on 19 February 1998 and he has experienced some depression since that time.

The appellant has always been in employment. He is a qualified television video technician. For the past four years the appellant has been employed as an alarm technician by K & L Electrical and Security. He takes home $833 per fortnight. He has a significant commitment on his home loan for which he pays $520 per fortnight. He pays $130 per month child support for his younger son.

Traffic offences aside, the appellant is a first offender.

Whilst the appellant consciously drove the motor vehicle in the circumstances described he does not appear at first blush to be a candidate for immediate imprisonment. However the question is whether his behaviour was such that an immediate sentence of imprisonment, one as short as seven days, was warranted.

The learned Magistrate said in very short sentencing remarks:

"I take all those matters put by Mr Winter into account in imposing penalty on you. I do not regard suspension of the period of imprisonment as appropriate."

He did not say why he did not regard as appropriate suspension of the sentence of imprisonment of a first offender who is in regular employment and has custody of two children and supports a third. He did not say why he regarded it more appropriate that that person immediately serve the seven days.

The appellant submitted that his behaviour was not contumacious and in the alternative that the learned Magistrate erred in the exercise of his sentencing discretion in failing to suspend the sentence of imprisonment. The respondent, on the other hand, argued that the appellant's conduct in driving the motor vehicle was contumacious and therefore the sentence was appropriate. The respondent further submitted that I should follow the decision of Perry J in Bates v Police (Perry J, Supreme Court of South Australia, 19 November 1997, S6430, unreported) which has been approved and followed in Wood v Police (Matheson J, Supreme Court of South Australia, 29 January 1998, S6543, unreported) and Valentincic v Police (Olsson J, Supreme Court of South Australia, 4 December 1997, S6477, unreported), and decline to follow Harshazi v Police (Mullighan J, Supreme Court of South Australia, 1 May 1998, S6663, unreported).

It was submitted by the respondent that the decision in Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150 and those decisions to which I have referred have given rise to difficulties in application in the Magistrates Court.

"Nevertheless, each member of that majority accepts, as Mullighan J says, that the punishment should be imprisonment "in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment ...". Mullighan J goes on to explain what he means by that. Two members of the majority (Doyle CJ and Duggan J) would go further than Mullighan J. But the approach of Mullighan J is common to all three judgments.

That approach, therefore, commands majority support from the court and should be followed by magistrates and in appeals from magistrates."

'I use the word "contumacious" in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at 542-3. 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 in disobedience to the authority which imposed it.'"

There is no doubt that Mullighan J had in mind that mere driving of a motor vehicle whilst suspended would not be enough to make the offender liable to an immediate sentence of imprisonment.

Before such a sentence was appropriate, the offender would have to commit the offence in circumstances which displayed "a total disregard of the disqualification and disobedience to the authority which imposed it".

In a sense all persons who commit this offence show a disregard of the disqualification and disobey the authority which imposed the disqualification. In that sense nearly all offenders are defying the order and the authority. The offence cannot be committed without some element of disobedience or defiance.

Mullighan J, however, would reserve the penalty for those who show contumacy.

The difficulty is deciding whether the circumstances of the offence are such as to exhibit contumacy. Because the offence always requires a wilful disobedience of the order for suspension, it is difficult to determine the line between a wilful disobedience and a contumacious breach of the order.

I suppose in nearly all cases a second offence would demonstrate the degree of defiance necessary to make out a contumacious breach. However even with a subsequent offender driving in the case of a real emergency or in circumstances of duress may not indicate a contumacious breach.

However, it is not so easy in the case of a first offender to precisely identify the particular conduct which would warrant the description "contumacious".

That a first offender could be guilty of a contumacious breach cannot be in doubt. The section which creates the offence provides for a lesser period of imprisonment for first offenders than those who commit subsequent offences. To suggest that a first offender could not be imprisoned would be to rewrite the section. It therefore must be assumed that a first offender may be imprisoned and therefore it follows that a first offender can commit the offence in circumstances of contumacy.

In Harshazi v Police (supra) Mullighan J held that an error had been disclosed where a magistrate had described conduct as foolish and had imprisoned the offender without first concluding the conduct contumacious. That decision would suggest, as did his reasons in Police v Cadd (supra), that in every case a magistrate must determine whether the particular conduct giving rise to the offence was contumacious.

Perry J said in Bates v Police (supra), that to regard imprisonment as being reserved for cases which involved contumacy would be to add words to the section creating the offence and penalty. Mullighan J disagreed with those remarks in Harshazi v Police.

Whether the decision in Police v Cadd does or does not add words to the section, or creates a test for imprisonment not provided for in the section, is probably not so much to the point for judges at first instance or for magistrates. The fact is the Chief Justice has been able to identify a majority for the prepositions he has enunciated and judges at first instance and magistrates must sentence in accordance with those propositions.

Therefore, on each occasion that a court is called upon to consider the penalty for this offence, whether for a first or subsequent offender, the court will have to determine whether the circumstances of the offending evidence a contumacious breach of the section.

"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.

Applying that approach to the circumstances of this case, I have no doubt that the driving of the appellant was contumacious in the sense in which that expression has been adopted in Cadd. The appellant well knew that he was disqualified from driving; the passage of driving was not insubstantial; and the appellant was not pressured to drive by reason of any emergency or other situation of duress."

Mullighan J was critical of these remarks in Harshazi v Police (supra). He said:

"Before parting with the matter I feel it is necessary to make some observations about remarks of Perry J in Bates v Police (unreported, 19th November 1997, Jd No S6430). After considering the meaning of contumacious and concluding, correctly in my view, 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", which is the view expressed in Cadd, Perry J went on to say at p9:

"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 action, 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 from of duress.'

I regret that I am unable to agree with those observations. One would not normally expect to see a sentencing standard of the type discussed in Cadd expressed in the legislative provision creating an offence and fixing a maximum penalty. It is not appropriate, in my view, in effect to circumscribe the circumstances which amount to contumacious offending in the manner expressed by Perry J. The offending may not be contumacious even though the driving is over more than a short distance and in circumstances [which] do not involve an emergency or duress. The present case is an example. The offending was foolish, not contumacious. If the meaning of contumacious in the present context was defined in that way so as to exclude only very few types of cases from its reach, there would be a very different sentencing standard than that expressed by the majority in Cadd."

With respect I disagree with Mullighan J. I do not agree that the remarks of Perry J circumscribe the circumstances which amount to contumacious offending.

If this Court is to lay down a sentencing standard, and that was the view of the majority in Police v Cadd, it must be able to describe with some particularity what does or does not amount to contumacious offending. It is not enough to say that a person should not be imprisoned unless his or her conduct is contumacious. To do no more will give rise to the expression of idiosyncratic views on what amounts to contumacy which will lead to wide divergence in sentencing for this offence. This Court must, for the guidance of magistrates and the consistency of decision in this Court, identify what conduct is contumacious. In my respectful opinion, it is not a question of circumscribing the circumstances which amount to contumacious offending to describe particular conduct, without more, as being contumacious.

One would usually not describe driving a motor vehicle in an emergency or in circumstances of duress as indicating defiance of the order for suspension or the authority which imposed the order. Those circumstances would be at one end of the spectrum. On the other hand, an offender who walked out of court having heard that he was disqualified from driving and having been warned of the consequences, and then drove his motor vehicle to Adelaide Oval to watch the football (a Friday night match), would probably be guilty of a contumacious breach of the section.

In between those two examples the line is more difficult to draw. Driving a short distance may or may not amount to contumacious breach. Driving a long distance may not. It is not possible to define contumacious behaviour necessarily by reference to the distance travelled.

Because the test is contumacy the inquiry must be more directed to attitude. The reasons for driving a motor vehicle, in circumstances where the offender well knew that he or she had been ordered by a Court or by administrative action not to drive a motor vehicle, are important. If the driving exhibits an attitude of defiance then that would usually amount to contumacy and may call for a sentence of imprisonment.

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.

However, even if it is contumacious behaviour it will not necessarily give rise to an immediate sentence of imprisonment. There will still need to be an inquiry into whether good reason exists for suspending the sentence (s38 Criminal Law (Sentencing) Act).

In this case the appellant had put in place a regime whereby he was driven in the course of his employment. He deliberately avoided driving to Port Pirie and made arrangements for a friend to drive him and his two children. He was not to know that his friend would over-indulge and make himself unavailable to drive the appellant and his two children home. Of course, the appellant could not have allowed his friend to drive if, in fact, his friend was incapable of driving. More particularly, he could not have allowed his children to travel as passengers in a vehicle being driven by someone who was affected by alcohol.

The appellant's behaviour does not suggest defiance on his part. Indeed, his behaviour up until the point of time when he drove the motor vehicle, suggests appropriate obedience to the administrative authority which suspended him from driving a motor vehicle.

I am not prepared to categorise his behaviour, in the circumstances, as contumacious. His behaviour, in my opinion, does not indicate an attitude of total disregard of and disobedience to the authority which ordered his disqualification.

In those circumstances the learned Magistrate was not obliged to impose a sentence of imprisonment. Indeed, an immediate sentence of imprisonment, in my opinion, was an inappropriate penalty for this offender. In my opinion, a sentence of imprisonment was inappropriate because the offending was not contumacious. Because of the appellant's financial circumstances because a fine would unduly prejudice the welfare of his dependents and therefore a fine would be inappropriate. (s13 of Criminal Law (Sentencing) Act).

In my opinion, the appropriate penalty for this offender was an order that he perform community service. I believe that a sentence of community service is an appropriate alternative in circumstances where the appellant's dependents would suffer by reason of the imposition of a fine: Wood v McDonald (1988) 46 SASR 570.

I therefore allow the appeal and set aside the order for the appellant's imprisonment and upon his conviction substitute an order that he perform 60 hours of community service within a period of twelve months.