must be determined on its own facts. I prefer to
classify the seriousness of driving whilst under
disqualification on broader
grounds.
1. The disqualification power is a vital weapon in
the armoury of courts of summary jurisdiction.
Magistrates,
amongst their many responsibilities,
judicially administer statutes such as the Traffic Act
which are designed, not only to regulate traffic, but
to combat the appalling toll of killed and injured on
our roads.
2. It is only an effective weapon if it is
strictly enforced, but such orders are, by
circumstance, difficult to
supervise and enforce.
3. The only practical method of obtaining maximum
compliance with such orders is to ensure that
those
subject to such orders understand that the consequences
of a breach will almost inevitably be grave and
imprisonment
must, in this regard, be the general
sanction."
17. In that case the appellant had previously been convicted by the same
court
less than two months previously of driving whilst having a blood alcohol
concentration of 170 milligrams and had been fined $250
and disqualified from
driving for 9 months.
18. His Honour concluded his judgment at page 13 by saying:- "Keeping the
principles
I have referred to well in mind I am not persuaded the sentence
should be varied. The offence must, in my view, be punished by imprisonment
and the interest of justice would not be served by suspending the sentence in
whole or part."
19. The third authority relied upon
by counsel for the appellant is an
unreported decision of Nader J. in Yunupingu v Holland in proceedings No. 7 of
1984, delivered
on 27 November 1984. In that case the appellant appealed
against the severity of the sentence. He had been convicted on 13 December
1983 of driving a motor vehicle whilst having a blood alcohol concentration of
180 milligrams and also of driving whilst disqualified.
For the latter
offence he had been sentenced to 6 weeks imprisonment and disqualified for a
period of 15 months. The appellant
had some three months earlier been
convicted of driving while having a blood alcohol concentration of 150
milligrams. He was then
fined $350 and disqualified for a period of 12 months.
His Honour, after dealing favourably with fresh evidence called in support
of
the appellant, said at page 72 of the transcript:-
"The proper approach to cases of this kind is well
expressed in Smith
v Torney, an unreported decision of
Muirhead J. of 12 July 1984. Despite the evidence
adduced on this appeal, I see no basis
for interfering
with the sentence imposed by the learned magistrate. I
do not think he was in error in passing the sentence,
and I am not persuaded by any evidence adduced on the
appeal that the sentence should be interfered with."
20. These cases
all go to show the consistent attitude adopted by this Court
in relation to an offence of this nature and to indicate that unless
exceptional circumstances exist, a term of imprisonment is almost inevitable.
21. I therefore becomes necessary to examine whether
or not exceptional
circumstances exist in the present case. Counsel for the appellant submitted
that there was none. He submitted
that it was not necessary for the
respondent to drive in the circumstances. The offence occurred at 2.45 p m.
There was no reason
why the respondent could not have left his vehicle outside
the hotel and got other transport home. There was no risk of his losing
his
vehicle or anything of that sort. He contended that the respondent's actions
constituted a blatant disregard of the law.
22.
Mr Jones for the respondent submitted that the learned stipendiary
magistrate had not erred in law and that he had not wrongly exercised
his
discretion. He challenged the appellant's contention that there had been a
blatant breach by pointing out that the learned stipendiary
magistrate had in
terms effectively discounted this by saying in passing sentence:-
"... that your spouse had an accident and
you were not
intending to drive, and you did drive, of course, but
it wasn't one of those action when you initially
decided
to flout the law, you were wanting to assist
her. I'll take those set of facts that are
unchallenged; I'll take that and hold
that in your
favour. So that prevents your from going to gaol."
23. Mr Jones cited the case of Cobiac v Liddy [1969] HCA 26; (1968) 119 CLR 257 for the
proposition "that to succeed on appeal one must demonstrate that there was
either an error of law or that there was a wrong
miscarriage of discretion."
Mr Jones did not elaborate upon that case except for saying, in effect, that
in the present case there
had been a proper exercise of discretion based on
the learned magistrate's acceptance of the respondent's reasons for driving
which,
in the magistrate's view, did not constitute a flagrant breach of the
law.
24. Although Cobiac v Liddy (supra) deals with the review
of a magistrate's
discretion, the principles of the law relating to an appeal against sentence
are laid down in the earlier case
of Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509,
per Dixon, Evatt and McTiernan JJ., at pp 519-520: See also R. v Tait and
Bartley 24 ALR 473; Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652 and Conwell v Kelly
(Kriewaldt J.) (1951-1976) NTJ 407, all of which are cited by O'Leary J. (as
he then was) in Matan v Ruehland (unreported decision of this Court delivered
on 15 October
1984, at pp 7-8).
25. Mr Jones further submitted that it was not open to the Crown to dispute
the fact that the respondent's spouse
had met with an accident unless evidence
was called to discount that fact and he cited in support Georgeff v Samuels
(1976) 14 SASR 384.
26. As I understood the submissions of counsel for the appellant, there was
indeed no challenge to this fact but, on the contrary,
even accepting it, it
did not alter the fact there there had been a flagrant breach of the
respondent's duty to comply with the order
of disqualification.
27. With respect to the learned stipendiary magistrate, I am of the opinion
that he allowed sympathy to outrun
discretion by regarding the accident, which
befell the respondent's de facto wife, to provide the reason for deciding
against imprisonment.
On the view of the facts most favourable to the
respondent, he was bound to accept the fact that this lady had had an accident
of
some sort in front of the hotel, in the absence of evidence to the
contrary. But, after all, it had happened at an hotel where there
was
undoubtedly ample opportunity to phone for a taxi or to resort to other public
transport. There was no suggestion that the respondent
was reacting to a
state of emergency such as might have been the case had the lady needed urgent
medical attention and needed to
be rushed to hospital and there was simply
no-one else to get her there. The respondent clearly and deliberately took the
chance
of not being detected. Accordingly, he must have realised that he was
breaking the law and defying the order of disqualification
made only a little
over six months previously. On this basis I am of the opinion that the
learned stipendiary magistrate erred in
considering that this was not a
deliberate breach of the order. In my opinion it clearly was. By his very
act of deliberately driving
the vehicle, the respondent showed contempt for
the order of disqualification and that, in my view, is enough to amount to
flouting
the law according to the ordinary usage of the English language. In
this way, I am of the opinion that the exercise of the learned
stipendiary
magistrate's discretion miscarried. At best, the fact of the de facto
spouse's accident might, in the proper exercise
of discretion, go in aid of a
reduction of the period of imprisonment which might otherwise be imposed in
order to distinguish the
case from one where the conduct was devoid of any
explanation at all.
28. I do not consider that this is a proper case for the application
of the
Criminal Law (Conditional Release of Offenders) Act both in the light of the
pronouncement of this Court in the cases which
I have cited and of the facts
and circumstances of the present case.
29. Mr Jones, in his submissions before the learned stipendiary
magistrate,
and repeated before me, alluded to the observations of Bray C.J. in Locke's
Case (supra) at page 301 which I quote:-
"It is sufficient for the present purposes to say
that, in the case of an ordinary bond under the
Offenders Probation Act
the offender, if he breaks the
bond, is liable to be sentenced for the original
offence but the nature and duration of that
sentence is
not known in advance and the court in imposing it can
legitimately take into account any mitigating
circumstances
relating to the breach of bond. The bond
breaker will not necessarily be sent to gaol for his
original offence. In contrast,
in the case of a
suspended sentence the operation of that sentence is
automatic on the defendant being brought before the