WOODWARD v POLICE No. SCGRG-00-483 [2000] SASC 246

On 7 April 1999 the appellant was convicted of the offence of driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol. He pleaded guilty to that offence. He was fined $550 and he was disqualified from holding or obtaining a drivers licence for a period of seven months until 6 November 1999.

On 24 June 1999 the appellant was apprehended driving a motor vehicle on the Eudunda to Kapunda Road. He was at that stage accompanied by a female passenger and a three month old baby.

The appellant's motor vehicle came to the attention of the police because the vehicle's passenger side headlight and a rear driver's side tail light were both not operating.

When the appellant was spoken to the police officer noticed that he smelt of liquor. He was asked to submit to an alcotest which recorded a positive reading and a resultant breath analysis reading showed that his blood alcohol was 0.095.

The police conducted a licence check on the appellant which showed that his licence had expired on 8 December 1998 and that he was subject to a court order disqualifying him from holding or obtaining a drivers licence to which I have already referred.

The appellant told the police that he knew that he was under disqualification and should not have been driving but gave his reason for driving was to get to Robertstown. He told the police officer:

"I haven't driven for a few months and I missed it. I don't think I was endangering anyone."

As a result of those matters he was charged with and pleaded guilty to three offences; first that he drove a motor vehicle whilst there was present in his blood a prescribed concentration of alcohol; secondly that he drove a motor vehicle whilst he was disqualified from holding or obtaining a licence; and thirdly that he drove a motor vehicle which did not comply with the requirements of s 119 of the Road Traffic Act 1961 relating to lamps and reflectors.

The appellant was represented by counsel and after submissions on the first count he was convicted and fined $750. He was disqualified from holding or obtaining a drivers licence for a period of 13 months. On the second count he was sentenced to a period of imprisonment of 21 days. On the third count he was convicted without penalty.

The appellant complains against the sentence of imprisonment which, he says, was manifestly excessive or in the alternative, he says, should have been suspended.

In Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150 at 171 Doyle CJ said:

"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 ...'."

I think it is generally understood now that a sentence of imprisonment in respect of this offence should usually be imposed on first offenders where there is some evidence of contumacy on the part of the offender.

That is not to say that it might not be appropriate to imprison a first offender who commits this offence other than in circumstances of contumacy: Police v Cadd (supra) per Mullighan J at 179; Sheean v Police [1999] SASC 187; (1999) 106 ACrimR 38 per Perry J at 41; Hamnett v Police [2000] SASC 126.

It is sometimes difficult to identify the facts and circumstances which might amount to contumacy. In Police v Cadd (supra) Mullighan J at 179 said:

"It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it."

In Johns v Police (Unreported, 24 June 1998, Judgment No. S6729) I said at 3 - 4:

"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 an 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."

In that case I suggested, because the Full Court had determined the test is one of contumacy, the inquiry which the Magistrate has to conduct should usually be directed to attitude. The court which is called upon to determine whether or not the act is contumacious would ordinarily need to determine the attitude of the driver at the time when the motor vehicle was driven. That must follow because Mullighan J defined contumacious offending in Police v Cadd (supra) at 179 as "committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it".

"If the driving exhibits an attitude of defiance then that would usually amount to contumacy and may call for a sentence of imprisonment."

Before contumacy may be found there must be more than the simple disobeying of the court order. Otherwise the majority in Police v Cadd (supra) would not have required contumacy. It must be that the court has to be satisfied that not only has the offender disobeyed the court order, and therefore committed the offence, but the offender has committed that act of disobedience in contumelious disregard of the court's order.

If that much can be established then ordinarily a sentence of imprisonment would be imposed upon a first offender. A second offence of the same kind might itself demonstrate the necessary contumelious disregard of a court's order.

Even if the court concludes that the offence has been committed in circumstances of contumacy the court must, as it is obliged under the Criminal Law (Sentencing) Act 1988, have regard to the question of suspension of the sentence of imprisonment. That obligation arises by statute. Section 38 of the Criminal Law (Sentencing) Act obliges the court, where it has imposed a sentence of imprisonment to consider, whether in the exercise of the court's discretion, the court thinks that good reason exists to suspend the sentence.

It therefore follows that at least in respect of first offences the sentencing Magistrate must satisfy himself or herself of the following matters. First, has the offence been committed in circumstances of contumacy. If not imprisonment would not ordinarily or to use Mullighan J's expression "necessarily" be appropriate. If so do the facts and circumstances surrounding the offence, and in the light of the circumstances personal to the offender, necessitate an order for imprisonment? If the answer to the second question is no then the court must consider some other form of punishment. If the answer to that second question is yes then the court must next consider whether the sentence of imprisonment should be suspended. The term of imprisonment may, in the exercise of the court's discretion, be suspended if the court is satisfied that there is good reason for so doing.

Ordinarily, if the court has concluded that the facts and circumstances surrounding the offence necessitate an order for imprisonment those facts and circumstances would not be good reason for suspending the term of imprisonment. That follows, in my opinion, because the court would usually have concluded that the offender committed the offence in circumstances of contumacy. Whilst there will be cases where it is appropriate to sentence first offenders to prison, even where the offender has not committed the offence in circumstances of contumacy: Hamnett v Police (supra), these cases will be relatively rare. Contumacy would not, in my opinion, be a good reason for suspending the sentence of imprisonment: Police v Castelluzzo (1997) 193 LSJS 13.

Therefore, in respect of this type offence, any good reason for suspending this sentence of imprisonment will usually need to arise from circumstances personal to the offender.

In this case the appellant was disqualified from holding or obtaining a drivers licence because he drove a motor vehicle with excess alcohol in his blood. Within six weeks of losing his licence he committed the same offence again by again driving with excess alcohol in his blood. He not only committed that offence but he also drove a motor vehicle which was defective in two material respects. He committed both of those offences whilst under disqualification.

The Magistrate said that the facts and circumstances surrounding this offence meant that this was a contumacious offence.

I think the Magistrate came to that conclusion because he felt that alternatives were open to the appellant in relation to his transport on this occasion and that the appellant had no need to drive the motor vehicle. Whilst that was right, that of itself, in my opinion, would not be enough to indicate contumacy.

I think the indications of contumacy, in this case, include the following. The appellant was present in court when his licence was disqualified. His licence was disqualified only about six weeks before he committed the offence, for driving a motor vehicle with excess alcohol in his blood. Notwithstanding that he was disqualified from holding or obtaining a drivers licence for a drink driving offence he committed a further drink driving offence on this occasion. He did so by driving a motor vehicle which was defective. He well knew that he was not entitled to drive. The only excuse he gave to the police was that he had not driven for some months.

In submissions made to the learned Magistrate it was put that the appellant had been placed in circumstances where he had to drive the motor vehicle. It was put that his female companion had been driving the motor vehicle. She had, however, been drinking heavily prior to driving. It became apparent to the appellant that she became incapable of driving because she was swerving all over the road. In those circumstances the appellant agreed with his companion that he would drive the rest of the way home. When he took over driving the motor vehicle he was in the middle of the country, half an hour from Robertstown, and in the company of his female companion and a three month old child. He had only been driving a short time when he was stopped by the police.

I think from the Magistrate's sentencing remarks he accepted the appellant's version of how he came to be driving the motor vehicle.

At first blush it may appear that the submissions made to the Magistrate were inconsistent with the account given by the appellant to the police. However it was pointed out by Ms Sutcliffe, who appeared for the respondent, that the two accounts were not necessarily inconsistent. As she pointed out the appellant might have been obliged to drive for the reasons given in submission to the Magistrate, but also might have missed driving for the reasons that he gave to the police.

Moreover, as she generously pointed out, there would have been good reason for the appellant not to tell the police the true reason why he was driving, because to do so would have disclosed to the police that his female companion had committed a drink driving offence.

On that concession made by the respondent, which was rightly and properly made, I am prepared to proceed on the same basis as the Magistrate and that is that the appellant came to be driving by reason of the circumstances given in submissions to the learned Magistrate.

"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."

The Magistrate had to determine, on those facts, whether the offence was committed in circumstances of contumacy. He found that the offending was contumacious. He did not, in my opinion, make any error in principle or misapprehend the facts.

Ms Sutcliffe argued that the facts did support such a finding. She accepted that the Magistrate may have come to a different result but she argued that was not the question on appeal. The question on appeal was whether, on the most favourable view of the facts from the appellant's point of view, was the offending contumacious.

I am satisfied that the Magistrate could have found on the facts that the offending was contumacious. I am not sure that I would have come to the same conclusion but I agree with Ms Sutcliffe that is not the question.

For those reasons I do not think that the Magistrate erred in finding that this offence was committed in circumstances of contumacy.

The sentence of imprisonment which was imposed was not, in my opinion, manifestly excessive. The Act provides for a sentence of imprisonment for six months. A sentence of 21 days was not, in my opinion, excessive.

The Magistrate applied his mind to the question of suspension. He did so in a rather elliptical way:

"For reasons I have indicated I decline to suspend that term of imprisonment."

For reasons I have already given I think it must follow almost invariably, if the court finds that the offence was committed in circumstances of contumacy, the facts and circumstances surrounding the offence could not support an order suspending the term of imprisonment.

However they are not the only matters which, as I have said, could give rise to good reason for suspending the term of imprisonment. Matters personal to the offender may well be relevant in considering whether the term of imprisonment ought to be suspended.

I agree with the Magistrate that the circumstances surrounding the offence would not give rise to good reason for suspending the sentence of imprisonment. This offence was committed in circumstances of contumacy; the appellant deliberately disobeyed the court order. But that is only the first aspect of the inquiry on the question of suspension.

There are a number of matters that need to be addressed before the court can decide whether to suspend the sentence of imprisonment.

The character antecedents, age, means and physical and mental condition of the appellant will be particularly important matters. Whether or not the offender is a first offender before the court will be relevant. The court must have regard to whether the offender has shown contrition for the offence. If the defendant has co-operated in the investigation of the offence or pleaded guilty to the charge at any early time that might evidence that contrition. So also will the defendant's rehabilitation be a most important consideration in relation to suspension.

The deterrent effect which the sentence may have on both the offender and other persons are also matters which may be relevant.

It is not for this Court to substitute the exercise of its discretion for that of the sentencing Magistrate. The sentencing Magistrate had a discretion which was fettered in only two respects. First the learned Magistrate had to be satisfied that good reason existed for the exercise of his discretion in favour of the appellant. Secondly, the discretion had to be exercised judicially.

I can only interfere with the exercise of the Magistrate's discretion if I am satisfied that the Magistrate acted under a wrong principle of law or had regard to extraneous facts which were not relevant or failed to have regard to facts which were relevant: House v The King (1936) 55 CLR 499.

It was submitted by Ms Sutcliffe that there is no indication that the learned Magistrate acted under any error of principle. Nor is there any indication from his reasons that he had regard to irrelevant facts or failed to have regard to relevant facts.

Mr Petracarro, counsel for the appellant, on the other hand argued that even though no error of principle could be demonstrated, and even though it cannot be shown that the Magistrate had had regard to irrelevant matters or failed to have regard to relevant matters, the very fact that the sentence was not suspended in the circumstances of this case meant that the Magistrate must have erred.

There will be occasions where the Magistrate's sentencing remarks do not disclose error of principle or a misapprehension of the facts but having regard to the facts the penalty demonstrates that such must have occurred.

In this case the appellant submits that even if there was evidence that the offence was committed in circumstances of contumacy the appellant's criminality did not prevent the Magistrate coming to the appropriate conclusion which was that good reason still existed for the suspension of the term of imprisonment. He is for present purposes a first offender. He admitted his guilt and pleaded guilty at the first available opportunity although it must be recognised that a conviction was inevitable. I am told he is contrite and remorseful and understands the seriousness of his conduct. The appellant has never previously served a term of imprisonment. He is in a stable relationship. He has the shared custody of his children and takes access to them. Although he is currently unemployed the appellant previously had a good work history. His present unemployment is a result of the order for disqualification.

Because the appellant is currently unemployed it would have been appropriate, it is submitted, for the term of imprisonment to be suspended on condition that the appellant carry out community service.

Apparently all of these matters were put to the learned Magistrate. Most of these matters have not been mentioned in his reasons but that would not necessarily mean that he did not take those matters into account.

In my opinion the matters personal to the appellant were of such significance that it could have been expected that the sentence of imprisonment would be suspended. That it was not suggests that perhaps the learned Magistrate either did not take some of these matters into account or failed to give the matters sufficient weight.

I think, in the circumstances, that the appellant has demonstrated that the sentencing discretion has miscarried and that it would be appropriate for me to re-sentence the appellant.

I do not intend to interfere with the sentence of imprisonment which was imposed and which, in my opinion, was not manifestly excessive and was in fact appropriate.

I am, however, prepared to suspend the sentence of imprisonment upon the appellant entering into a bond in the sum of $100 to be of good behaviour for two years. It will be a condition of the bond that the appellant perform 80 hours of community service over a period of 12 months.