Barnes v Police - [2006] SASC 295

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BARNES v POLICE
[2006] SASC 295
Judgment of The Honourable Justice Gray
28 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against decision of magistrate not to exercise discretion to suspend sentence of imprisonment imposed in respect of charge of drive whilst disqualified - appeal on grounds that when sentencing, magistrate had had regard to two irrelevant considerations - Held - appeal allowed - sentence imposed by magistrate set aside - appellant re-sentenced to six weeks' imprisonment suspended upon his entry into bond to be of good behaviour for two years.
Motor Vehicles Act 1959 (SA) s 91, referred to.
Police v Maxwell (1998) 102 ACrimR 374; Crafter v Police [2001] SASC 316; Duncan v R (1983) 47 ALR 746 at 749; R v Van Der Horst [2006] SASC 243, considered.

BARNES v POLICE
[2006] SASC 295
GRAY J:

This is an appeal against a sentence imposed by a Magistrate for the offence of driving whilst disqualified contrary to section 91 of the Motor Vehicles Act 1959 (SA). This offence occurred on 10 August 2004.
Background
On 5 July 2006, the appellant, Todd Trevor Barnes, pleaded guilty to the offences of theft, driving whilst disqualified, driving with excess blood alcohol and failing to wear a seat belt properly adjusted and fastened. On 31 July 2006, the appellant was sentenced in respect of all of the offending.
This appeal is concerned only with the charge of driving whilst disqualified and the sentence imposed in respect of that charge.
On 10 August 2004 at approximately 6.20 pm, the appellant was apprehended whilst driving on Main South Road at Darlington. He was not wearing a seat belt. His driver’s licence had been disqualified for the period 24 October 2001 to 23 January 2006. The appellant submitted to a breath analysis test for which a result of 0.102 grams in a hundred millilitres of blood was obtained. The appellant was aware that he was disqualified from driving and had no reason for not wearing his seat belt.
The magistrate summarised the submissions put by counsel for the appellant as to the circumstances leading to the offending:
... It was put to me that you had been drinking heavily, that you had an argument with your partner, that you then went to the local shops where you were assaulted. You returned home. You were again drinking. You were on ADHD medication at the time. You were not thinking straight and you therefore drove your vehicle. In relation to the theft charge, it was said that you had some money but you were on limited income hence the reason why you stole the items of food.
The history of this matter is intertwined with another charge of driving whilst disqualified. On 25 July 2004, 17 days prior to the commission of the drive disqualified…

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 Barnes v Police

Details

AGLC: Barnes v Police [2006] SASC 295
Case: [2006] SASC 295
Decision Date: 28 September 2006

CaseChat Overview and Summary

In this appeal, Todd Trevor Barnes contests the sentence imposed by a Magistrate for driving while disqualified, under section 91 of the Motor Vehicles Act 1959 (SA). The offence took place on 10 August 2004. The appellant pleaded guilty to various charges, including driving while disqualified, on 5 July 2006, and was sentenced on 31 July 2006. This appeal pertains solely to the driving while disqualified charge and its sentence. The appellant was apprehended on 10 August 2004 at 6:20 pm on Main South Road in Darlington, not wearing a seatbelt, and his driver's license was disqualified from 24 October 2001 to 23 January 2006. He was aware of his disqualification and had no justification for not wearing his seatbelt. The magistrate considered the appellant's submissions, including heavy drinking, an argument with his partner, an assault at a local shop, and ADHD medication affecting his judgment.

The legal issues in this case revolve around the appellant's argument that the magistrate erred in the exercise of her sentencing discretion by considering two irrelevant factors. First, the appellant contends that the magistrate inappropriately identified certain features of the offence as aggravating circumstances. Second, the appellant claims that the magistrate incorrectly took into account the approach of the magistrate who dealt with an earlier charge of driving while disqualified, thus failing to properly discharge her role as the sentencing magistrate for the present offence. The court had to determine whether the magistrate's consideration of these factors constituted an error in the exercise of her sentencing discretion.

The court found that the appellant's appeal was well-founded. The magistrate's consideration of certain features of the offence as aggravating circumstances was deemed inappropriate, as such circumstances are not typically considered aggravating factors in cases of driving while disqualified. Furthermore, the magistrate's reliance on the approach taken by the sentencing magistrate in the earlier charge was found to be an error in the exercise of her discretion. As a result, the sentence imposed by the magistrate was set aside, and the appellant was sentenced to six weeks' imprisonment, suspended upon his entry into a supervised bond to be of good behaviour for two years. In all other respects, the orders of the magistrate remained unchanged.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against a sentence imposed by a Magistrate for the offence of driving whilst disqualified contrary to section 91 of the Motor Vehicles Act 1959 (SA). This offence occurred on 10 August 2004.Background On 5 July 2006, the appellant, Todd Trevor Barnes, pleaded guilty to the offences of theft, driving whilst disqualified, driving with excess blood alcohol and failing to wear a seat belt properly adjusted and fastened. On 31 July 2006, the appellant was sentenced in respect of all of the offending. This appeal is concerned only with the charge of driving whilst disqualified and the sentence imposed in respect of that charge. On 10 August 2004 at approximately 6.20 pm, the appellant was apprehended whilst driving on Main South Road at Darlington. He was not wearing a seat belt. His driver’s licence had been disqualified for the period 24 October 2001 to 23 January 2006. The appellant submitted to a breath analysis test for which a result of 0.102 grams in a hundred millilitres of blood was obtained. The appellant was aware that he was disqualified from driving and had no reason for not wearing his seat belt. The magistrate summarised the submissions put by counsel for the appellant as to the circumstances leading to the offending:... It was put to me that you had been drinking heavily, that you had an argument with your partner, that you then went to the local shops where you were assaulted. You returned home. You were again drinking. You were on ADHD medication at the time. You were not thinking straight and you therefore drove your vehicle. In relation to the theft charge, it was said that you had some money but you were on limited income hence the reason why you stole the items of food. The history of this matter is intertwined with another charge of driving whilst disqualified. On 25 July 2004, 17 days prior to the commission of the drive disqualified charge the subject of this appeal, the appellant committed an offence of drive disqualified. This earlier offending was finalised in the Christies Beach Magistrates Court on 7 December 2004, within six months of the date of the offending. The appellant was sentenced to one month’s imprisonment, which was suspended upon entering into a bond to be of good behaviour for 18 months. The appellant successfully complied with the terms of his bond, which had expired by the date of the hearing of this appeal. The complaint in respect of the offending the subject of this appeal was laid on 7 December 2004, the same day on which the appellant appeared in relation to the earlier charge. This complaint did not come before the court until 19 January 2005, and the appellant did not appear before the court in relation to the subject charges until 22 November 2005. The appellant was not sentenced in respect of the subject offending until 31 July 2006, some two years after the commission of the offences. Criminal antecedents The appellant has significant criminal antecedents. These include, a history of driving offences, including convictions for driving with excess blood alcohol or driving under the influence. He has three prior convictions for driving whilst disqualified. He has previously breached good behaviour bonds. He has served a period of imprisonment in relation to charges of driving with excess blood alcohol concentration and driving whilst disqualified.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these circumstances, I have concluded that there is good reason to suspend the term of imprisonment. Conclusion This appeal is allowed. The sentence imposed by the magistrate in respect of the charge of driving whilst disqualified is set aside. The appellant is sentenced to six weeks’ imprisonment, suspended upon his entry into a supervised bond to be of good behaviour for two years. In all other respects, the orders of the magistrate remain unchanged.

Ratio Decidendi

Legal Principle Established

Counsel for the appellant submitted that the magistrate erred in the exercise of her sentencing discretion by taking into account two irrelevant considerations. First, the magistrate, it was said, identified certain features of the offending that she inappropriately characterised as aggravating circumstances. Second, the magistrate had regard, incorrectly, to the approach taken by the magistrate who dealt with the 25 July 2004 driving whilst disqualified charge, and, in so doing, failed to properly discharge her role as the sentencing magistrate with respect to the present offending.Consideration of aggravating features Counsel for the appellant drew the Court’s attention to the following passage of the magistrate’s sentencing remarks, which, counsel contended, indicated error in the magistrate’s reasoning:The aggravating features of the driving disqualified charge now before me, as I have said, are that you had been apprehended 16 days before driving whilst disqualified and yet you again drove knowing about the seriousness of that offence having previously been imprisoned in relation to a similar offence. …The aggravating feature of the offending before me is that you have again driven a car at a time when you knew you were disqualified, whilst again being under the influence of alcohol. In Police v Maxwell,[1] Bleby J cast doubt upon whether such circumstances as those identified by the magistrate can be viewed as aggravating features of the offence of driving whilst disqualified. Bleby J observed:[2]Here the offence is driving whilst disqualified. All that is required is an act of driving. The circumstances of aggravation or otherwise will relate to the circumstances in which the defendant came to be driving, whether the act of driving was trifling or substantial, and the reasons and the purpose for which the defendant was driving. Above all, it will depend on whether the offence can be said to be contumacious, in the sense discussed by Mullighan J in Police v Cadd (1997) 69 SASR 150 at 179. That is, whether the defendant was driving with an attitude of total disregard of a disqualification in disobedience to the authority which imposed the suspension. …I have already said that this offence will seldom be aggravated by the manner of driving, and that that will normally be the subject of the separate penalty. What aggravates this type of offence is the reason for, and circumstances of the driving itself, and the nature and extent of the disregard of the law, given that the disqualification itself will invariably have been imposed by a court or competent statutory authority because of some other breaches of the law. Unlike many other offences, the offender’s previous record may well indicate a continuing attitude of disobedience to the law which is directly relevant in assessing the gravity of the offence in question. [1] Police v Maxwell (1998) 102 ACrimR 374.[2] Police v Maxwell (1998) 102 ACrimR 374 at 378-379. In Crafter v Police,[3] Mullighan J remarked to similar effect:[4]The learned Magistrate obviously took a very serious view of the manner of driving of the appellant. It is fair to say that he behaved as a lout and he is fortunate that he was not charged with a more serious offence. However, as he must be separately punished for the offence of damaging a road, this conduct should not be regarded as a matter of aggravation when considering the sentence for driving disqualified. He is not to be punished twice for the same conduct: Long v Police (1998) 72 SASR 515.[3] Crafter v Police [2001] SASC 316.[4] Crafter v Police [2001] SASC 316 at [15].