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[2003] SASC 374
respondent. Appeal dismissed. The one-month term of imprisonment and the refusal to suspend it were undisturbed ([61]–[62]).
Perry J dismissed Parsons' appeal against a one-month prison sentence. The court found that Parsons knew his six-month disqualification was still in force when he drove, and that the breach was contumacious. It also considered his two earlier convictions for driving while disqualified and the dangerous manner of the current driving. The one-month term was not manifestly excessive, and the magistrate was not shown to have erred by refusing to suspend it.
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2,089 words · generated 30/09/2026
Parsons appealed to the Supreme Court of South Australia against a sentence imposed in the Magistrates Court. Perry J describes the appeal as concerning a single term of one month's imprisonment imposed after guilty pleas to hindering two police officers in the execution of their duty and driving while disqualified ([1]). The notice of appeal challenged only that imprisonment sentence. Other penalties imposed for offences arising from the same events, including a $400 fine and a nine-month licence disqualification for dangerous driving and failing to stop, were not under appeal ([2]–[3]).
No linked legislation citations have been extracted yet.
The driving took place at about 1.43 am on 4 October 2001. Police decided to stop Parsons' vehicle because of its condition. When officers activated their lights and used their high beams, he accelerated away. The pursuing police used their siren ([8]–[9]). Although the road was in a semi-rural area with a 100 km/h speed limit and Parsons was travelling at about 90 km/h, the judgment focuses on his manner of driving rather than speed alone. He drove erratically, cut corners, and other vehicles moved out of his path to avoid collisions ([10]–[12]).
The episode became more dangerous when Parsons made a U-turn and narrowly missed the pursuing police vehicle. He then forced another police vehicle coming from the opposite direction to leave the road. His vehicle eventually left the road and mounted an embankment. Parsons left the car, hid in nearby bushland, and was located by the police dog squad ([13]–[16]).
The disqualification issue was important to the appeal. Parsons said he thought the disqualification lasted three months and had expired in August 2001. The court considered the original notice, the court proceedings about his appeal from the disqualification, and a letter stating that the disqualification ran from 11 May to 2 November 2001 ([26]–[39]). Perry J rejected Parsons' assertion that he did not know he remained disqualified on 4 October.
The appeal was dismissed. The court concluded that the finding of contumacy was not erroneous, that the sentence was not manifestly excessive, and that the magistrate had not erred by refusing to suspend it ([40]–[61]).
The court's treatment of contumacy turned on Parsons' knowledge of the disqualification. Perry J noted that the original notice said the disqualification was for six months and would take effect on 10 April 2001 ([30]). Parsons lodged an appeal, and his notice of appeal recorded that notice of cancellation and disqualification had been served on him on 10 April ([31]). After the appeal was dismissed, the Registrar of Motor Vehicles wrote that the cancellation was effective from 11 May until 2 November 2001 and required him to surrender his licence ([33]).
Parsons then made a further application seeking leave for his appeal to be reheard or another order. The court found that he knew the further application had been dismissed ([34]–[36]). Against that documentary and procedural background, Perry J considered it inconceivable that Parsons was unaware of the period of the disqualification. The judge rejected his claim that he believed it had ended in August and found he knew he was driving while disqualified ([37]–[40]).
The judgment links that finding with the nature of the driving and Parsons' previous traffic history. He had two prior convictions for driving while disqualified. The sentencing magistrate had referred to a history of traffic offences and disregard for road safety ([19], [40], [44]–[46]). Perry J concluded that, taking those matters together, the breach was properly treated as contumacious in the sense discussed in Police v Cadd ([40]). The judgment does not set out Cadd's full reasoning, so the decision's explanation of the doctrine is limited to that reference and its application to the facts.
On manifest excess, the court found no identifiable error in the sentencing remarks other than the challenge to the contumacy finding, which it had rejected ([41]–[42]). Perry J considered the appellant's age, lengthy offending history, the two earlier disqualified-driving convictions, the dangerous episode, and his personal circumstances ([43]–[55]). A key consideration was that the one-month term was imposed for serious conduct and was far below the stated maximum of two years' imprisonment for the disqualified-driving offence ([19], [55]). The judgment's conclusion was case-specific: the sentence could not be characterised as manifestly excessive on the material before the court.
The refusal to suspend the sentence was also upheld. The appellant argued that imprisonment could cause him to lose employment. Perry J accepted that authorities suggest a court should hesitate before imposing a short prison term if it may cause the loss of secure employment, but said employment was only one factor ([56]–[57]). The appellant had become unemployed by the appeal hearing, and the court considered it unrealistic to ignore that development. It nevertheless found that he had not been in secure employment at the time of sentence ([58]–[59]). The reasons also included his prior disqualified-driving offending: he had received the benefit of a suspended 14-day sentence on one occasion, and had served seven days' imprisonment after a second conviction ([45]–[46]). The court was not satisfied that refusal to suspend involved error ([60]).
This judgment applies, rather than announces a comprehensive new test. On the material supplied, its doctrinal contribution is a fact-specific application of the concept of contumacious disqualified driving and sentencing principles to a repeat offender whose knowledge of the disqualification was supported by documentary evidence.
Before this appeal, the judgment identifies Police v Cadd as defining contumacy in the relevant sense. It also names Bates v Police, Bradford v Police and Woodward v Police as examples of subsequent cases ([40] and footnote [3]). The judgment does not describe the facts or holdings of those decisions in detail. It would therefore go beyond the source to state exactly how each earlier case formulated the doctrine or how each treated particular factual variations.
As applied in Parsons, the relevant features were that Parsons had received notice of a six-month disqualification, had pursued proceedings relating to it, and had been told in writing that the operative period extended to 2 November 2001. The court found he knew the disqualification remained in force on 4 October 2001. His two prior convictions for driving while disqualified and the circumstances of the evasive driving reinforced the conclusion that this breach was contumacious ([29]–[40]).
The judgment also records a sentencing proposition about employment and prior leniency. Employment consequences may be relevant when deciding whether to impose or suspend a short prison term, but they are one factor among the circumstances to be considered ([57]). Further offending after a suspended prison sentence narrows the sentencing options compared with a case where the offender has not previously received that benefit ([45]). Perry J also treated a later term of actual imprisonment for a further disqualified-driving offence as important in assessing the significance of renewed offending ([46]).
The judgment's outcome confirms that those considerations did not, on these facts, establish error. It does not say that every repeat instance of driving while disqualified must result in imprisonment, nor that employment consequences are irrelevant. Rather, it explains why this appellant's record, knowledge and driving conduct supported the sentence imposed and refusal to suspend it ([45]–[60]).
At [38], Perry J reasoned that the original notice, the later letter giving the dates of the disqualification, and Parsons' further unsuccessful court application made it “inconceivable” that he was unaware of the term of the disqualification. In plain English, the court relied on the complete sequence of communications and proceedings, rather than accepting the claimed assumption that the ban lasted only three months.
At [40], the judge concluded that the driving should be regarded as contumacious, referring to the meaning in Police v Cadd. In context, the finding was that this was not a breach committed without awareness of the disqualification. The court had found that Parsons knew it remained in force, and considered his prior disqualified-driving convictions and the current dangerous driving.
At [45], Perry J said that sentencing options must be regarded as narrower where a defendant offends again after receiving the benefit of a suspended prison sentence. The practical point in this case was that an earlier suspended sentence had not prevented another disqualified-driving offence. The judgment describes this as a relevant sentencing consideration, not as a rule prescribing a fixed penalty.
At [55], the court said the one-month sentence could not be said to be manifestly excessive, noting that the maximum penalty was two years' imprisonment. This was the conclusion on the particular sentence and record before the court, not a general statement that any one-month sentence for this offence is necessarily appropriate.
At [57]–[60], the judge addressed employment consequences. The possibility of losing secure work could be relevant, but it was not the only factor. The court also considered that Parsons was no longer employed and had not been in secure employment when sentenced. It ultimately found no error in the refusal to suspend.
The judgment is most directly relevant to sentencing appeals involving driving while disqualified where the central question is whether the offender knowingly breached the disqualification. It illustrates the evidentiary significance of official notices, correspondence specifying the disqualification period, and a person's participation in proceedings about the disqualification ([29]–[39]).
It also concerns circumstances where the court is asked to assess contumacy against a background of repeat disqualified driving and dangerous conduct during the offending episode. Here, the appellant had two earlier convictions for driving while disqualified, and the current driving involved evasive manoeuvres that created a risk of collision ([13]–[16], [40], [45]–[46]).
For sentencing, the case addresses an offender who had previously received a suspended sentence and later served a short term of imprisonment for similar offending. The judge regarded that sequence as relevant to the available sentencing options ([45]–[46]). It may therefore be useful when examining how a court reasons about repeat offending after earlier sentencing opportunities, while noting that the judgment does not establish an automatic sentencing outcome.
Finally, it addresses a claim that short imprisonment may affect employment. Its treatment is relevant where employment consequences are raised, but the judgment's reasoning is explicitly contextual: the employment was not secure, the appellant was later unemployed, and the court considered the broader sentencing circumstances ([49]–[50], [56]–[60]).
The supplied judgment contains no information about decisions after 6 November 2003 that considered Parsons. It is therefore not possible, from this source alone, to say whether later courts followed, distinguished, limited or otherwise treated this decision.
The judgment itself identifies three authorities as examples of cases subsequent to Police v Cadd: Bates v Police, Bradford v Police and Woodward v Police ([40] and footnote [3]). Those are authorities Perry J refers to in explaining the background to the contumacy issue. They are not later treatments of Parsons, which had not yet been decided. The judgment does not explain their individual reasoning or give enough information to assess their precise precedential relationship to each other.
A reliable account of later treatment would require later judgments or a case-citation source not included in the material provided. No claim about Parsons' subsequent precedential status is made here.
The judgment does not reproduce the detailed definition of contumacy in Police v Cadd. It states that the phrase was used in the sense defined there, then applies that concept to Parsons' knowledge, history and conduct ([40]). Without Cadd itself, the exact boundaries of the definition cannot be stated from this judgment alone.
The appeal was confined to the imprisonment sentence. Other penalties imposed for offences arising from the same driving were outside the notice of appeal ([2]–[3]). The court's reasons therefore do not determine any issue about those separate penalties.
The reasons also do not set out the full text of the sentencing authorities concerning employment and short prison sentences. Perry J reports that such authorities suggest hesitation where secure employment may be lost, but emphasises that employment is only one factor ([57]). The particular reasoning should not be expanded into a comprehensive test beyond what the judgment says.
Finally, the judgment provides no subsequent case history. Whether later courts have adopted or qualified its application of contumacy, the relevance of previous suspended sentences, or the treatment of employment consequences remains unresolved on the supplied text.
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1 PERRY J. The appellant appeals against the penalty imposed upon him in the Magistrates Court sitting at Christies Beach following his plea of guilty to charges that on 4 October 2001 he hindered two police officers in the execution of their duty, and drove while disqualified. Exercising his powers under s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing magistrate imposed one sentence, that is, one month's imprisonment, and declined to suspend it.
2 On two other charges arising out of the same passage of driving, namely driving in a manner dangerous to the public and failing to stop when requested by the police, the sentencing magistrate imposed a fine of $400 and a licence disqualification of nine months.
3 The notice of appeal relates only to the sentence of one month's imprisonment. The appellant complains that the sentence is manifestly excessive; that the sentencing magistrate erred in not suspending it; and that he erred in finding that the offence of driving whilst disqualified was contumacious.
4 Apart from the charges arising out of the course of driving by the appellant on 4 October 2001, the appellant was also dealt with for offences of driving an unregistered and uninsured motor vehicle on 28 February 2003, and on the same date driving whilst unlicensed and without due care.
5 Apart from that, he was charged also with breach of a bond, the breach having been committed on 23 June 2000.
6 As for the breach of bond, the sentencing magistrate made no order apart from excusing the breach.
7 As for the traffic offences committed on 28 February 2003, the sentencing magistrate entered a conviction and imposed a single fine, namely $300.
8 I have had the benefit of an affidavit sworn by the police prosecutor, Mr Fuss, who appeared for the complainant before the sentencing magistrate. It appears from his affidavit that at about 1.43 am of the morning of 4 October 2001, the attention of police officers on uniform mobile patrol was drawn to a motor car driven by the appellant, which was proceeding along Bains Road, Morphett Vale. Due to its condition, they decided to stop the vehicle.
9 The police officers activated blue and red lights and flashed the appellant with their high-beam lights. Instead of stopping, he accelerated away. The police officers followed, sounding their siren.
10 They followed the appellant through what they described as a "semi-rural area" where the speed limit was 100 kilometres per hour. The appellant's vehicle was travelling at about 90 kilometres per hour.
11 He was proceeding in an erratic manner, cutting corners in an endeavour to get away from the following police car.
12 A number of other motor vehicles moved out of the appellant's path to avoid a collision.
13 At one stage the appellant executed a U-turn, reversing his direction of travel along Bains Road. In the process of doing so, he narrowly missed colliding with the pursuing police vehicle.
14 At this stage the appellant was travelling west along Bains Road. While doing so, he forced another police vehicle travelling in the opposite direction to move off the road, to avoid a collision.
15 The appellant continued his erratic manner of driving until his vehicle left the road, mounting an embankment on the corner of Gates Road and Hepenstal Road.
16 The appellant, who was the sole occupant of the vehicle, left the vehicle and hid in nearby bushland. The police dog squad attended soon afterwards and located him.
17 On his arrest, the appellant was asked to comment about the incident, but was crying and distressed and declined to be interviewed.
18 With respect to the charge of driving whilst disqualified, the appellant had been disqualified by the Department of Transport from 11 May 2001 until 2 November 2001 for breaching his provisional licence.
19 In the course of his sentencing remarks the sentencing magistrate commented:
"It is not argued that his [the appellant's] offending is not contumacious and I find that it is. I have perused his antecedent history in detail. There have been numerous offences of driving without due care, speeding and the like. He has shown a complete disregard for the safety of the community and the road rules that bind those of us that use the road. On two occasions previously he has been dealt with for driving whilst disqualified. On the first occasion he was sentenced to a sentence of 14 days and he had the benefit of suspension of that sentence. On the second occasion he was imprisoned for 7 days. Accordingly, with respect to count 4 before me [driving whilst disqualified] he stands to be sentenced to a period of 2 years imprisonment."
20 Ms Demertzis, who appeared for the appellant before the sentencing magistrate and before me on the hearing of the appeal, took issue with the suggestion that no argument had been offered that the driving was not contumacious.
21 I admitted into evidence an affidavit sworn by her for the purposes of the appeal, in which she states, inter alia, the following:
"8. In relation to the offences of 4 October 2001 I made submissions, inter alia, as follows:
(a) That the defendant was driving his own vehicle travelling to his girlfriend's house where he was staying at the time;
(b) The defendant had been taking speed prior to that date and had been awake for 7 days straight;
(c) That the defendant attributes this lack of sleep to making poor decisions at the time;
(d) That the disqualification was not a Court imposed disqualification;
(e) The defendant had lodged two appeals against this disqualification both which were unsuccessful;
(f) The defendant had believed that this period of disqualification was only for 3 months and not 6 months;
(g) Therefore the defendant thought that the disqualification that had commenced in May of 2001 would have expired in August 2001;
(h) Further that this was an honest but not reasonable mistake of fact, thus making the offending not contumacious; .."
22 When I pointed out to Ms Demertzis that the magistrate's sentencing remarks were at odds with her account of the submissions which she made, she explained that after she had put her submissions as to the question whether the driving was contumacious, there were lengthy submissions in argument over whether or not any sentence of imprisonment to be imposed should be suspended. The sentencing magistrate went on to give ex tempore sentencing remarks, and Ms Demertzis suggested that by then the magistrate might have been distracted by the argument over suspension and overlooked the separate submission which had been made on the question of contumacy.
23 Whatever the explanation may be, against this somewhat unsatisfactory background, I suggested that if she now wished to pursue the submission as to contumacy, more particularly on the basis that the appellant did not believe at the time that his disqualification was still in force, it would be difficult to deal with that issue without hearing evidence from him. Indeed, I would have thought that the appropriate course to have been followed was for him to have given evidence on that topic in the Magistrates Court.
24 Be that as it may, in an endeavour to resolve the problem, I then suggested that Ms Demertzis might care to call her client to give evidence before me.[1]
25 She thereupon called him to give evidence. He was cross-examined by Mr Jacobi, who appeared as counsel for the respondent.
26 The appellant said in evidence that he did not deny having received a letter notifying him of his disqualification sometime in 2001. He said he "assumed" that the disqualification was for three months but "obviously I didn't read it properly". He went on to say:
"My last disqualification was three months and I thought all point demerits were straightforward three months disqualification. I did appeal it and I missed the court date and I went back for another appeal and I had a child, sick child, which I didn't go again so I never actually got to go into court for the appeal and once the three months was up I believed that I wasn't disqualified any more. I was aware of the fact I didn't have a licence but I knew - I did not think I was disqualified."
27 The appellant added that at that time he was leading an unstable life and "was taking stuff I shouldn't be taking".
28 In answer to the question "On 4 October were you aware that you were disqualified" he said:
"No, not at all. I had already been to gaol for driving disqualified and there was no way I was stupid enough to do it again."
29 In the course of his cross-examination a number of documents were tendered relevant to the appellant's awareness that he was disqualified and the length of the disqualification. Amongst them was the original notice of disqualification dated 27 March 2001. Although he denied having received it, I have no doubt that in fact he did do so, as he lodged a notice of appeal against the disqualification in the Magistrates Court on 19 April 2001.
30 Furthermore, the notice of disqualification stated:
"Pursuant to Section 81b(2) of the Motor Vehicles Act, 1959, I hereby CANCEL the Learner's Permit AND Provisional Licence held by you and give notice that you are DISQUALIFIED from holding or obtaining a learner's permit or driver's licence for a period of six (6) months.
.......
The disqualification will be effective from 10/04/01."
31 In his notice of appeal dated 19 April 2001, the appellant states:
"Notice of cancellation of my driver's licence and disqualification was served upon me on the 10th day of April 2001."
32 The appellant concedes that he did not attend on the hearing of the appeal.
33 In the result, the Registrar of Motor Vehicles wrote to him by letter dated 25 May 2001. The letter reads as follows:
"Dear Mr Parsons,
It has come to the attention of this office that the appeal against the cancellation of your licence was dismissed on 11 May 2001.
Due to the dismissal the cancellation is effective from 11 May 2001 until 2 November 2001. Therefore, you are required to surrender your licence to any Transport SA, Customer Service Centre within seven (7) days.
At the end of your disqualification you will be required to attend any Transport SA, Customer Service Centre with $32.00 to be issued with a twelve month provisional licence." (emphasis added)
34 Following receipt of that letter, on 29 May 2001 the appellant filed an application in the Magistrates Court for an order which he expressed in the following terms:
".... leave to have appeal re-heard or any other order the court sees as fit."
35 It appears from an endorsement on the application that the appellant appeared in court when the application was listed on 13 June 2001. The matter was adjourned to 29 June 2001.
36 The appellant said in evidence that he could not remember that the matter was adjourned, and he was unclear as to whether he had attended a second time. He did admit, however, that the appeal (treating his application as a second appeal or re-hearing of the appeal) was dismissed.
37 After her client had given evidence, Ms Demertzis submitted that I should find that the appellant did not know that his disqualification was for the period of six months expiring on 2 November 2001. In the face of his evidence, I could not properly accede to that submission.
38 On the contrary, given the clear terms in which he was originally notified of the disqualification for a period of six months, the fact that he then lodged a notice of appeal which, when it lapsed, resulted in a letter advising him specifically that the cancellation was effective from 11 May 2001 until 2 November 2001, and that he then brought what was in effect a further appeal which was to his knowledge dismissed, I think that it is inconceivable that he was not well aware of the term of the suspension.
39 So that I would reject his suggestion to the contrary and his suggestion that at the time of the passage of driving on 4 October 2001 which resulted in his conviction on the charges now under appeal, he was not aware that he was driving whilst disqualified.
40 Given the history of is previous traffic offences, which, as was pointed out by the sentencing magistrate, included two previous convictions for driving whilst disqualified, and given the nature of the passage of driving now in question, the only possible conclusion is that the act of driving in breach of the licence disqualification should properly be regarded as contumacious, in the sense in which that expression was defined in Police v Cadd,[2] and subsequent cases.[3]
41 The appellant through his counsel did not suggest that there was any identifiable error in the magistrate's sentencing remarks, except as to his comments as to contumacy.
42 For the reasons which I have given, the magistrate did not err in his conclusion as to that aspect of the matter.
43 Ms Demertzis then advanced a number of submissions as to the appellant's personal circumstances, including the circumstances which led him to drive in the manner in which he did on that night, from which she submitted that the sentence was manifestly excessive, and further, that the sentencing magistrate erred in not suspending it.
44 The appellant is aged 24 years. He has a long history of prior offending, including offences of dishonesty and traffic offences, dating back to 1995. Most of the offending was relatively minor. But the nature and persistence of the traffic offences justified the comment by the sentencing magistrate that he has "shown a complete disregard for the safety of the community and the road rules".
45 The two previous offences of driving whilst disqualified are particularly significant. The fact that he had had the benefit of a suspension of the 14 days sentence of imprisonment on the first of those offences is important, as if a defendant offends again after earlier receiving the benefit of a suspension of a sentence of imprisonment, the sentencing options must be regarded as narrower than otherwise would be the case.
46 The fact that he was imprisoned for seven days following the second conviction for driving whilst disqualified should have brought home to him the seriousness of the offence and the likely consequences of further offending.
47 At the time of the offending the appellant was living with his parents and his sister, but he and his partner were planning to move into their own accommodation during the following week.
48 The appellant has three children, two by his present partner and one to a previous partner. The appellant's present partner was pregnant with their third child at the time the matter was before the magistrate.
49 Since leaving school, the appellant has worked on and off, but was unemployed for two years before securing work in January 2003. This was with Fibrelogic. A letter from the firm put before the sentencing magistrate confirmed that the appellant was employed on a casual basis and that Fibrelogic intended to continue to employ him if the workload continued.
50 This has not eventuated. I was informed by Ms Demertzis that the appellant's employment ceased some time ago. He is now unemployed.
51 As for the immediate circumstances of the passage of driving in question on 4 October 2001, Ms Demertzis repeated submissions to this Court which had been put to the magistrate to the effect that the appellant had been taking "speed" prior to that date and had been awake for seven days straight; that his lack of sleep led him to make what she described as "poor decisions"; that the disqualification was not a court-imposed disqualification; and that he had believed the disqualification to have expired in August 2001.
52 I have already dealt with the question of the appellant's belief as to a period of disqualification.
53 While the taking of "speed" may explain his lack of response to the police efforts to get him to pull over, and his responses when finally apprehended, those matters carry very little weight in determining whether it was appropriate in all the circumstances to impose a sentence of imprisonment.
54 The fact that the disqualification was not imposed by a court is irrelevant.
55 In my view, it has not been demonstrated that the magistrate erred in following the course that he did. Given that the maximum penalty was two years imprisonment, the sentence of one month's imprisonment could not be said to be manifestly excessive.
56 As for the question of suspension, Ms Demertzis urged the magistrate to take into account the personal circumstances of the appellant, including the fact that, as things stood at that stage, he was likely to lose his employment if imprisoned.
57 It is true, as Ms Demertzis pointed out, that there are authorities which suggest that the court should hesitate to impose a short term of imprisonment if the effect might be that the defendant will lose secure employment. But that is only one of the factors which must be taken into account. However, I do not think that much weight can be given to that now.
58 While in a strict technical sense, the question whether or not the magistrate was in error in failing to suspend should be determined on the basis of the material and circumstances as they existed at the time and as they were explained to him, it would be unrealistic for this Court not to take note of the fact that the appellant has since become unemployed.
59 In the events which have happened, the appellant cannot be said to have been in secure employment at the time he was sentenced.
60 Having regard to all of the circumstances, I am not satisfied that the magistrate erred in deciding not to suspend the sentence.
"On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence."
"On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence."
[3] See, for example, Bates v Police [1997] SASC 6749; (1997) 70 SASR 66, Bradford v Police (unreported) judgment S6943, 1998 (Debelle J) and Woodward v Police (unreported) [2000] SASC 246 (Lander J).
PARSONS
POLICE No. SCCIV-03-778 [2003] SASC 374
(1997) 69 SASR 150
(1997) 70 SASR 66
Appeal dismissed. The one-month term of imprisonment and the refusal to suspend it were undisturbed ([61]–[62]).