Bald v Police

[2018] SASC 145

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BALD v POLICE

[2018] SASC 145

Judgment of The Honourable Justice Kelly

27 September 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

TRAFFIC LAW - OFFENCES - GENERALLY

The appellant pleaded guilty and was sentenced in the Magistrates Court for offences of driving in a dangerous manner and unauthorised driving.  The appellant appeals the sentence imposed on a number of grounds including that the learned Magistrate erred in failing to state the applicable discount that he was entitled to receive. The respondent concedes the appeal.

Held per Kelly J allowing the appeal:

1)  Appeal allowed.

2)  Matter remitted to Magistrates Court for submissions and sentence. 

Road Traffic Act 1961 Section 46; Motor Vehicles Act 1959 Section 74 ; Sentencing Act 2017 Section 39, referred to.

BALD v POLICE
[2018] SASC 145

Magistrates Appeal

KELLY J:

1. The appellant was charged with one count of driving a motor vehicle in a dangerous manner contrary to s.46 of the Road Traffic Act 1961 and one count of unauthorised driving contrary to s.74(2) of the Motor Vehicles Act 1959. He first appeared in court on 16 May 2018.  He pleaded guilty on 3 July 2018 to both charges and was sentenced on that date.

2. For the offence of unauthorised driving the Magistrate convicted the appellant without further penalty given time served and imposed a three year disqualification of the appellant’s driver’s licence.  For the offence of driving in a dangerous manner, the Magistrate imposed a sentence of one year imprisonment and a three year disqualification of the appellant’s driver’s licence.  His Honour ordered that the sentence be served cumulatively upon an unexpired period of parole to which the appellant was subject of two years, three months and four days.  The total head sentence therefore was three years, three months and four days.  The Magistrate set a non-parole period of 26 months.  The sentence was ordered to commence from 3 July 2018.

3. The appellant appealed on four grounds.  First, that the sentence of 12 months for driving in a dangerous manner was manifestly excessive.  Second, that the non-parole period of 26 months was manifestly excessive.  Third, that the Magistrate’s reasons for sentence were inadequate.  Fourth, that his Honour erred in failing to state the specific discount that he was entitled to for his early pleas of guilty.

4. The appellant’s notice of appeal was filed on 27 July 2018. The appellant therefore requires an extension of time within which to file the notice of appeal.  That application is not opposed and accordingly the appellant is granted the necessary extension of time.

5. Prior to the date for hearing this appeal the respondent filed notice conceding that the appeal should be allowed on the fourth ground. Although the Magistrate stated in his remarks “I give the defendant credit for his pleas of guilty…” it is not possible to discern whether in fact his Honour did allow any discount for the offence of driving in a dangerous manner. No reference was made to a starting point for the sentence but for the plea from which a percentage discount might be calculated and no reference at all is made to s.39(2) of the Sentencing Act 2017.

6. In addition, the respondent concedes that there may have been other errors in the sentencing process. The respondent concedes that the figure of unexpired parole that the Magistrate ordered to be served by the appellant appears to be incorrect and should have been 14 days less than it was.  That period was only correct had the appellant been sentenced on 19 June 2018 in accordance with the calculations made in a letter from the Parole Board dated 17 May 2018.  The appellant was not sentenced on 19 June 2018.  He was sentenced two weeks later and therefore was entitled to a credit for that 14 day period.

7. Furthermore, the respondent acknowledges that the Magistrate appears to be mistaken about the offence for which he is sentencing the appellant in referring to a similar prior conviction for the offence of driving dangerously to escape police as a relevant offence rather than the offence of driving in a manner dangerous which was the subject offence.  His Honour also appears to have mistakenly concluded that the appellant did have a relevant prior offence for the purpose of sentencing.  That error is manifested in the imposition of a licence disqualification which applies as a minimum licence disqualification for a second offence (being not less than three years[1]) rather than one in line with that which applies to a first offence (being not less than 12 months[2]) for which he ought to have been sentenced.

   [1]    Road Traffic Act 1961 s.46(3)(a)(i).

   [2]    Road Traffic Act 1961 s.46(3)(a)(ii).

8. In light of these errors the respondent conceded that the appellant should be re-sentenced.  However, the parties agree that further advice will need to be obtained from the Parole Board in order for him to be re-sentenced.

9. In all of the circumstances, and by consent, I therefore order that the matter be remitted to the Magistrates Court for re-sentence after a report has been obtained from the Parole Board.

10. The sentence imposed by the Magistrate is set aside and the matter is remitted to the Magistrates Court for submissions and sentence.