KHAMMASH v POLICE No. SCGRG-99-415 Judgment No. S225 [1999] SASC 225

Supreme Court of SA|1999-05-28|Before: Police Bleby J, Perry J

On Appeal from MAGISTRATES COURT (MR M E FREDERICK SM)

PERRY J. (ex tempore) The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Elizabeth following his conviction on a charge that on 1 September 1998 at Parafield he drove while disqualified from holding or obtaining a licence, contrary to s91 of the Motor Vehicles Act 1959.

He pleaded not guilty, but was found guilty by the learned trial magistrate, who imposed a sentence of 18 months imprisonment.

The offence operated as a breach of a bond upon which a sentence of five months imprisonment had previously been suspended. The magistrate saw no reason to ameliorate the consequences of the breach of bond, with the result that the sentence of five months imprisonment was activated, giving a total head sentence of 23 months, against which the learned magistrate set a non-parole period of 15 months. Further, he disqualified the appellant from holding or obtaining a driver's licence until further order.

The appeal is against sentence only. The appellant complains that both the sentence of imprisonment and the period of the licence suspension were manifestly excessive.

The magistrate's sentencing remarks indicate that he took a poor view of the appellant, particularly having regard to his record of prior convictions. Many of them were for traffic offences, but there were also offences involving dishonesty and violence stretching back to 1985.

There were no less than seven prior convictions for driving whilst disqualified. The dates upon which the prior offences were committed lie between 1988 and 1997. As to the last of them, the appellant was before the court on 18 February 1998, when he was disqualified for a period of 12 months. The present offence was a breach of that order of disqualification.

The circumstances of the present offending appear from the learned magistrate's reasons for judgment following the defended hearing.

It appears that at about 2.15 on the afternoon of the day in question, the appellant was seen driving a Rover sedan motor car on Main North Road by a uniformed police officer in a mobile patrol car. The police car overtook the appellant. As it drew alongside, the driver of the police car recognised the appellant from previous dealings which he had had with him. He noticed a female passenger in the appellant's car. The driver of the police car then pulled over to the side of the road, stopped and made a computer inquiry which indicated, in the first place, that the appellant's car was owned by him and, in the second place, that he had been disqualified on the occasion in February 1998 to which I have referred, that disqualification then still being current.

Armed with that information, the driver of the police car pursued the appellant's car, eventually catching up with it at some shops further down the road, where the appellant had pulled in and stopped his car.

When challenged about the matter, the appellant said that he had not been driving but that the woman in the car had been the driver. He maintained that story before the learned trial magistrate, but was disbelieved, as was his woman passenger, who was called by him to give evidence in his defence.

On his conviction, the appellant did not, through his counsel, say anything by way of an explanation as to why he might have been driving and, indeed, did not confess to being the driver. A concession, though, to that effect was made during the hearing of the appeal before me by Mr Boylan. Mr Boylan submitted that his client had not driven for months, that he had an urge to drive, and did so on the day in question against his woman friend's advice. It appears that he drove a short distance only.

During the course of his sentencing remarks, which were also ex tempore, the learned magistrate referred to the fact that the appellant had pleaded not guilty. He referred also to the fact that he had given sworn evidence and that he had, to use the magistrate's expression, "enjoined" his woman friend to lie in what the magistrate described as "the vain attempt to escape the conviction for his eighth offence of driving disqualified". Against that background, he stated that he needed to impose "a penalty which reflects the court's sanction upon anyone who shows such continuous defiance and contempt of court orders".

Looking at the sentencing remarks as a whole, it seems likely that the learned magistrate erred, as Mr Boylan suggested on the hearing of the appeal, in holding it against the appellant that he had pleaded not guilty, and in visiting some extra punishment upon the appellant for having done so.

It is sometimes said that it is a circumstance of aggravation for a defendant not only to plead not guilty, but to attempt to mislead the court in an endeavour to avoid a conviction.

One starts with the proposition that in exercising his or her right to plead not guilty and in obliging the prosecution to prove a charge, a defendant should not, if ultimately convicted, suffer by reason of having taken that course. But the case may be different if the defendant misleads the court in the process of doing so. I leave that question for another day, as the appeal may be disposed of on other grounds.

In this case, in my opinion, there is much to be said for the argument advanced by Mr Boylan that the sentence of 18 months imprisonment, viewed apart from those considerations, was nonetheless too severe, so much so that intervention by this Court is justified.

In the course of advancing that submission he referred to some unreported decisions of this Court.

18 In Maxwell v Police,[1] Bleby J considered an appeal against a sentence of imprisonment for 18 months imposed upon the appellant, who had a bad driving record which included fourteen prior offences of driving whilst disqualified. His Honour allowed the appeal, set aside the sentence and substituted for it a head sentence of 12 months. Bleby J observed in the course of that case:

"I have not regarded this as being in the very worst category of offending, but the disregard for the law evidenced by his past record puts it very close."

19 In Johnson v Police,[2] Lander J considered an appeal by an appellant who had pleaded guilty to three separate counts of driving whilst disqualified. He had seven prior convictions for that offence, as well as convictions for other driving offences. Lander J considered a total head sentence in that case of 30 months to be excessive and reduced it to 13 months, with a non-parole period of eight months.

20 Ms Lee-Justine quite properly has drawn my attention to the fact that in both of those cases the appellant had pleaded guilty, which means that some discount must have been allowed for that circumstance. Even allowing for that, however, it seems to me that the penalty which was imposed in this case is not in line with sentencing standards for this offence. In making that observation, I have not overlooked the fact that the passage of driving now in question was in breach of the bond, which is clearly a circumstance of aggravation. But on the other hand, for breach of the bond, the appellant is punished by having to serve the suspended prison term.

21 Neither the appellant's prior record nor his plea of not guilty should ordinarily be regarded as aggravating circumstances justifying a heavier penalty than otherwise would be imposed, as opposed to allowing for a discount for a plea of guilty.

22 During the course of his remarks on penalty, the learned sentencing magistrate referred to what he described as recent decisions of the Supreme Court, including Police v Cadd and Ors.[3]

"There (in Cadd) Mullighan J said - again words to the effect - that a penalty of imprisonment should not be imposed on an offender in relation to drive disqualified unless the offending can be demonstrated to have been contumacious. In this regard the word 'contumacious' has been interpreted by the learned judge and others as to mean an absolute defiance and in contempt of a court order knowing that you are disqualified, to deliberately with forethought and without any justification or excuse whatsoever, drive a vehicle."

With respect to the learned magistrate, there are at least two errors in the passage which I have quoted. The first sentence in that quotation is indicative of an error of approach which was the subject of some general comments made by me in Sheean v Police[4]

"... 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."

Certain comments by Mullighan J in Cadd have been accepted by the majority in that case as an appropriate statement giving "authoritative guidance" for courts of summary jurisdiction in dealing with cases of this kind.[5]

The relevant passage in the judgment of Mullighan J is:[6]

"I think there should be a standard fixed ... given the seriousness of the offence and its apparent prevalence.

That standard ... 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 such as a substantial fine or community service in the appropriate case. I use the word 'contumacious' in the sense that it is understood in the law: see Witham v Holloway.[7] 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. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in ss10 and 11 of the Criminal Law (Sentencing) Act and established sentencing principles are sufficient further guide to the sentencer." (emphasis added)

26 In Bates v Police,[8] with reference to that formulation of the test, I 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 the street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress."

27 Subsequently, in Sheean, I observed:[9]

"In Bates, I was simply endeavouring to indicate my view of circumstances which might ordinarily be regarded as 'contumacious' for the purposes of the principle expounded in Cadd. In that respect, I remain of the view which I expressed in Bates, namely, that the necessary element of defiance may properly be found to exist if the evidence discloses a deliberate act of driving by a person who well knows that he or she is disqualified from driving, which is a significant act of driving in the sense that it involves a more than momentary passage or episode of driving, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress'. I have emphasised the words 'such as' to make it plain that I was not suggesting that the particular circumstances of emergency or duress were to be taken as exhaustive. Other circumstances may well serve to ameliorate the seriousness of the passage of driving, so that it might then cease to be 'contumacious' in the relevant sense.

Defiance is, after all, an attitude of mind. Its existence is hardly likely to be proved by direct evidence, as opposed to drawing an inference from the facts and circumstances surrounding the commission of the offence. My observations in Bates were intended to suggest that the circumstances which I there postulate should normally lead to the necessary inference being drawn."

It follows that on a proper understanding of what fell from the Full Court in Cadd, the learned magistrate in this case erred when he said that a penalty of imprisonment "should not be imposed on an offender in relation to drive disqualified unless the offending can be demonstrated to have been contumacious". That pitches the test too high.

In any event, the reference to the question whether the offending was or was not "contumacious" is in this case otiose as it was made clear in Cadd that the sentencing standard there discussed was in the context of a first offence. The distinction was emphasised in the judgment of Mullighan J in Sheean v Police[10]

"I adhere to what I said in Cadd at page 180: 'Of course, a different consideration must apply to the offender who is before the court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.'"

Notwithstanding the observations which I have made with respect to the decisions of the Full Court in Cadd and Sheean, in this case, the question is whether a sentence of 18 months imprisonment for an eighth offence of driving whilst disqualified was, in all the circumstances, manifestly excessive.

In all the circumstances, the appellant has discharged the onus of proving that to have been the case.

I would reduce the sentence of imprisonment on the driving disqualified charge to 12 months, to be served cumulatively upon the activated sentence of 5 months, giving an overall sentence of 17 months, against which I would set a non-parole period of 10 months.

33 As to the licence suspension, Mr Boylan relies upon the authority of Sadler v Crossman,[11] in which Von Doussa J made the following observations:

"These observations, however, do not lead to the conclusion where immediate imprisonment is ordered, that a period of licence disqualification should be coupled with the sentence. Generally speaking, I think it should not be. Where a sentence of immediate imprisonment is imposed, that sentence should be punishment enough for the contempt which the defendant has shown for the order for disqualification which he has disobeyed. The punishment contemplated by s91 has been inflicted. I say 'generally speaking' as the particular penalty is a matter for the sentencing tribunal which must exercise its discretion unfettered by absolute rules. There may be cases where the circumstances lead the court to impose a sentence of imprisonment which is shorter than the norm, and to balance that fact by increasing the punishing by adding a period of licence disqualification. I would think that such cases would be rare."

There seems to have been very little authority on the point since then, although in Clancy v Haynes,[12]

another single judge of this Court, Debelle J, made the following observations in the context of an appeal against the sentence imposed on a drive disqualified charge:

It is important also to ensure that, when ordering a period of disqualification in addition to a period of imprisonment, the orders when viewed as a whole do not result in a double penalty for the offender. The order of disqualification is in every respect a penalty as much as the order of imprisonment."

While Von Doussa J did not go so far as to suggest that, where a sentence of imprisonment is imposed, a licence disqualification should never be added to the penalty, in my opinion, the reasoning behind his observations in that case is sound. In particular, where there are no other circumstances of aggravation associated with the manner of driving and where the sentence of imprisonment is not reduced for some reason below the norm, that is, below what the circumstances of the offence and of the offender deserve, it is inappropriate to impose a term of suspension as well as the term of imprisonment.

Ms Lee-Justine contended in answer to this aspect of the matter that a suspension until further order leaves it open for some other court at another time to restore the licence, but I do not think, with respect, that that is an answer to the point. A question of principle is involved, and I would answer it in the way in which I have indicated. More particularly, given the imposition of a lengthy term of imprisonment, I do not think that it was appropriate to superimpose upon that a further order for suspension of licence.

In the result, I would also quash the order of suspension.

The appeal will be allowed. I substitute for the order of imprisonment imposed by the learned trial magistrate a term of 12 months imprisonment on the charge of driving whilst disqualified, which, together with the activated term of five months imprisonment which was suspended, makes a total head sentence of 17 months. I fix a non-parole period of 10 months against the adjusted head sentence. The order for disqualification is quashed.

HIS HONOUR: The respondent will pay the appellant's costs of and incidental to the appeal fixed in the sum of $150.

4. Full Court (Prior, Perry and Mullighan JJ), 18 May 1999, unreported, judgment No [SASC187].

5. See Doyle CJ, 69 SASR 171.

7. (1995) 183 CLR 525 at 542-543.

11. (1988) 47 SASR 331 at 338.

[4] Full Court (Prior, Perry and Mullighan JJ), 18 May 1999, unreported, judgment No [SASC187].

[5] See Doyle CJ, 69 SASR 171.

Motor Vehicles Act 1959

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