BATES-BROWNSWORD v POLICE

[2006] SASC 218

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

BATES-BROWNSWORD v POLICE

[2006] SASC 218

Judgment of The Honourable Justice David (ex tempore)

17 July 2006

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING

Appeal against sentence imposed in respect of three driving offences - Crown conceded that purported disqualification that formed the basis of one of the charges was void - Appeal allowed - Appellant re-sentenced.

BATES-BROWNSWORD v POLICE
[2006] SASC 218

Magistrates Appeal:  Criminal

1. DAVID J.  (ex tempore)    The appellant was charged in the Magistrates Court on three complaints. One complaint dealt with the charge of driving whilst there was present in his blood more than the prescribed concentration of alcohol and also with driving a motor vehicle not being authorised to do so.

2. In relation to that complaint, the learned magistrate convicted him on the first count and fined him $500 with fees of $139 and a $35 levy.

3. On the second count on that complaint, he was sentenced to two months imprisonment and his licence was disqualified for three years and there was a $35 levy.

4. The second complaint alleged that on 8 January 2006, he drove a motor scooter whilst disqualified from holding or obtaining a driver’s licence and on that complaint he was convicted and the learned magistrate sentenced him to imprisonment for one month, cumulative upon the term of imprisonment in relation to the first complaint, and ordered him to pay $190 worth of fees and levies.

5. There was also a count of driving an unregistered motor vehicle in relation to that complaint and no further penalty was imposed.

6. On the third complaint, the appellant was charged with contravening a term of a bail agreement. The bail agreement that he entered into was in relation to the complaint in relation to count 2. The condition of that agreement which he breached was driving a motor vehicle.

7. In relation to that complaint, the learned special magistrate sentenced him to three months imprisonment. That was cumulative upon the sentences of imprisonment for complaints 1 and 2 and he was to serve one month of that term of imprisonment and be released pursuant to s 38(2)(a) of the Criminal Law (Sentencing) Act 1988 if he entered into a bond for the remainder of the head sentence. He was ordered to pay $162 fees and levies.

8. The second complaint, which involved driving whilst disqualified, was invalid. I need not go into the reasons but the respondent has conceded that. It is also fairly properly conceded by the respondent that as that complaint was invalid and that as the sentencing process is to be looked at as a whole, the whole of the sentencing process should be set aside.

9. The appeal will be allowed and I re-sentence.

10. The defendant is aged 18 years of age. He has one previous conviction that I am told was for a similar offence, namely, driving a motor vehicle while he was not authorised to do so. On this occasion, which is the basis of complaint No 1, 4 December 2005, he was at home drinking. He consumed alcohol. He drove off even though he had never obtained a driving licence, and was stopped at a random roadside breathalysation station. His reading was .095.

11. Subsequently, on 12 February 2006, he was once again driving a vehicle when he was unauthorised to do so, but that is not the charge he is now facing. He also breached a term of the bail agreement that he entered into in relation to the second complaint that was deemed to be invalid.

12. In looking at the matter afresh, I have been told by Ms Forde that he is very young, aged 18 years; that he has one previous conviction of this type; that he has led an irresponsible life so far, but the shock and difficulties following these convictions have made him aware of the serious trouble he is in and has made him aware of his responsibilities in the future in relation to the driving of a motor vehicle.

13. In exercising my discretion in relation to penalty, and especially whether I should suspend any term of imprisonment that I may impose, I take into account his very young age, and the fact that he has not been in serious trouble before. I think that to send a young man of 18 years of age to prison, even though these offences are serious and irresponsible, would be too harsh.

14. In my view, the sentencing regime should be such that he realises the seriousness of what he has done; that he cannot treat the road traffic rules with contempt; and also that the public are to be protected by a penalty that will put him off the road for some period of time.

15. On the first complaint, I agree with the monetary penalty imposed by the magistrate in relation to count 1, and in relation to the matter of driving while there was present in his blood more than the prescribed concentration of alcohol, he will be convicted and fined $500. There will be an order that he pay $139 for fees and a $35 levy.

16. On that same complaint, in relation to driving a motor vehicle whilst not authorised, he will also be fined a further $500. There will be a three-year licence disqualification and a $35 levy.

17. In relation to the third complaint, I agree that a period of imprisonment of three months should be imposed. However, because of his age, I think it appropriate that that be suspended upon him entering into a bond in his own recognisance of $500 to be of good behaviour for two years. A term of that bond will be that he be under the supervision of a probation officer and to obey that person’s directions generally. I order that he pay $162 fees and levies.

18. In relation to the first complaint, and the first conviction, there will be a six months licence disqualification cumulative upon the three-year loss of licence for count 2 in relation to complaint No 1.

19. The disqualification will be deemed to commence forthwith.