AMIRTHALINGAM v Police - [2015] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
AMIRTHALINGAM v POLICE
[2015] SASC 189
Judgment of The Honourable Justice Lovell
3 December 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - PARTICULAR ACTS OR OMISSIONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
The appellant pleaded guilty to one count of aggravated drive without due care.
The appellant was sentenced to a term of 28 days imprisonment and given a period of licence disqualification for six months. At the time of sentence, the appellant had been in immigration detention for approximately eight months, a relevant factor that was not put before the sentencing Magistrate.
The appellant complained that the sentence was manifestly excessive.
Held: Appeal allowed.
1. The failure to have regard to time spent in immigration detention amounted to a process error.
2. The sentence imposed by the learned Magistrate set aside. The appellant is convicted and upon him entering into a bond to be of good behaviour in the sum of $500 for a period of six months there be no penalty. Driver's licence disqualified for six months.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(o), s 11; Road Traffic Act 1961 (SA) s 45, s 45(2)(b); Criminal Law Consolidation Act 1935 (SA) s 19A(3), referred to.
R v Jongewaard [2009] SASC 346; House v The King (1936) 55 CLR 499, applied.
Darter v Diden & Ors [2006] SASC 152; R v Kellegher [2015] SADC 159; R v Niesen [2015] SASCFC 165, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "due care"

AMIRTHALINGAM v POLICE
[2015] SASC 189
Magistrates Appeal: Criminal
LOVELL J:
Overview

On 13 April 2014 the appellant was the driver of a motor vehicle which was involved in a collision. The appellant failed to give way at an intersection and collided with another vehicle. At the time of the collision the appellant had a blood alcohol reading of 0.082 per cent.
The passenger in the car driven by him suffered serious injuries. The appellant was originally charged with causing serious harm by dangerous driving. This is a major indictable offence. The appellant at the time of the accident was on a bridging visa. The visa was cancelled when he was charged and the appellant was then placed in detention.
The charge was eventually withdrawn and a summary charge of aggravated drive without due care substituted. He pleaded guilty and was sentenced for that offence on 22 December 2014. The sentencing Magistrate was told that he was “in immigration detention” at that time but was not told he had been in detention for nearly eight months. The Magistrate sentenced him to 28 days imprisonment suspended upon him entering into a bond to be of good behaviour for nine months. He was also disqualified from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AMIRTHALINGAM v Police

Details

AGLC: AMIRTHALINGAM v Police [2015] SASC 189
Case: [2015] SASC 189
Decision Date: 3 December 2015

CaseChat Overview and Summary

In the matter of Amirthalingam v Police, the appellant appealed against the sentence imposed by the Magistrate. The appeal concerned the severity of the sentence, specifically whether it was manifestly excessive. The appellant had been charged with causing serious harm by use of a motor vehicle, a major indictable offence, but later pleaded guilty to the lesser charge of aggravated drive without due care, a summary offence. The critical legal issues before the court involved whether the Magistrate failed to appropriately consider statutory provisions, such as section 11 of the Criminal Law (Sentencing) Act 1988 (SA), whether the personal circumstances of the appellant were adequately weighed, and if the decision to impose a sentence of imprisonment was erroneous.

The court examined the Magistrate's decision to impose a sentence of 28 days imprisonment, wholly suspended, and a six-month disqualification from holding or obtaining a driver's licence. The court scrutinized whether the sentence was manifestly excessive in light of the statutory directives and the appellant's personal circumstances. The appellant, who had a history of trauma and mental health issues, argued that the sentence did not adequately consider these factors. The court reviewed the sentencing principles and the mitigating personal circumstances of the appellant, who had fled from war-torn Sri Lanka and was suffering from anxiety, depression, and post-traumatic stress disorder. The court also considered the statutory requirement under section 11 of the Sentencing Act, which mandates that the sentence should fit the offender and the offence.

After careful consideration of the appeal, the court found that the sentence imposed by the Magistrate was manifestly excessive. The court concluded that the Magistrate had failed to give sufficient weight to the appellant's personal circumstances and had not appropriately considered the statutory sentencing principles. The court also found that the decision to impose a sentence of imprisonment was erroneous given the appellant's traumatic background and lack of antecedent history. Consequently, the court set aside the sentence and ordered a re-sentencing by another Magistrate.

Orders

Orders of the court

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Background

Background to the litigation

The appellant sought an extension of time within which to appeal The extension was not opposed by the respondent. I therefore allow the extension. Factual background On 13 April 2014 at about 2.55 pm, a two-car collision occurred at the intersection of Applebee Road and Port Gawler Road. The appellant was the driver; he was uninjured. Unfortunately, his passenger sustained head and pelvic injuries. The driver of the other vehicle was not injured and returned a blood alcohol test of zero per cent. Major Crash investigators conducted a vehicle examination which revealed that both vehicles had been in reasonable condition prior to the collision. According to the agreed facts, the appellant had a blood alcohol concentration of 0.082 per cent and had failed to give way prior to entering the intersection. There was no suggestion by the police that the appellant was exceeding the speed limit. As mentioned, at the time of the collision the appellant was on a bridging visa. The appellant was initially charged with causing serious harm by use of a motor vehicle contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). This is a major indictable offence. As a result of that charge the bridging visa of the appellant was cancelled and he was detained by the immigration authorities. Many months later the charge was reviewed and a fresh complaint filed. The appellant was charged with one count of aggravated drive without due care contrary to section 45 of the Road Traffic Act 1961 (SA) (“the RTA Act”). The aggravating circumstance of the offence was that the appellant had a blood alcohol concentration greater than 0.08 per cent. This is a summary offence. Following the appellant’s plea of guilty to the lower charge of aggravated drive without due care; the Director of Public Prosecutions (“DPP”) withdrew the major indictable offence. On 22 December 2014, the appellant pleaded guilty in the Adelaide Magistrates Court to the offence. He was entitled to up to 30 per cent discount for his early plea. The maximum penalty for an aggravated offence of drive without due care is imprisonment for 12 months and disqualification from holding or obtaining a driver’s licence for a minimum of six months. The learned Magistrate imposed a sentence of 28 days, wholly suspended upon the appellant entering into a $300 bond to be of good behaviour for nine months, and disqualified the appellant’s driver’s licence for the statutory minimum of six months pursuant to section 45(2)(b) of the RTA Act. The issue in this appeal is whether the sentence imposed by the learned Magistrate was manifestly excessive; in particular, whether the learned Magistrate:1.failed to appropriately consider section 11 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”);2.failed to give sufficient weight to the personal circumstances of the appellant; and 3. erred in imposing a sentence of imprisonment. Personal circumstances The appellant is currently 25 years old. He is single and has no children. He was born in Sri Lanka. His native language is Tamil. The appellant has no antecedent history in this jurisdiction. Sadly, the appellant has experienced many traumatic events in his life. Whilst living in Sri Lanka his village was bombed by the government and he was injured by the shell blast as a result. He has been a victim of torture and has lost family members as a result of the civil war. In 2012, the appellant managed to flee Sri Lanka and came to Australia as a refugee. He spent some time in immigration detention before being released on a bridging visa. He suffers from anxiety, depression and post-traumatic stress disorder as a result of his experiences in Sri Lanka.Submissions before the Magistrate

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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