Bawden v Police - [2006] SASC 260

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BAWDEN v POLICE
[2006] SASC 260
Judgment of The Honourable Chief Justice Doyle (ex tempore)
22 August 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against sentence - the appellant pleaded guilty in the Magistrates Court to one count of being so much under the influence of intoxicating liquor as to be incapable of exercising effective control over a motor vehicle contrary to s 47 of the Road Traffic Act 1961 (SA) and one count of behaving in a disorderly manner contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA) - the Magistrate imposed a fine of $700 for the first offence and disqualified the appellant from holding or obtaining a driver's licence - whether the Magistrate erred by disqualifying Mr Bawden from holding or obtaining a driver's license - consideration of whether the offence could be characterised as trifling - it cannot be said that the offence is trifling - the circumstances of the offending involved the appellant causing his motor vehicle to remain stationary in the middle of a main road at night - consideration of s 47(3) of the Road Traffic Act in view of s 16 and s 39 of the Criminal Law (Sentencing) Act 1988 (SA) - s 47(3) of the Road Traffic Act 1961 (SA) requires the imposition of a mandatory minimum sentence being a period of disqualification for holding or obtaining a driver's licence for 12 months - the legislation does not disclose a basis on which to refrain from imposing a minimum licence disqualification if the offence cannot be characterised as trifling - appeal dismissed.
Road Traffic Act 1961 (SA) s 43, s 47, s 47(3), s 47(3)(b); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39; Summary Offences Act 1953 (SA) s 7(1)(a), referred to.
Janz v Woolven (1990) 55 SASR 239, applied.

BAWDEN v POLICE
[2006] SASC 260
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Mr Bawden pleaded guilty before the Magistrates Court to two charges.
The first charge was that on 24 April 2006 he attempted to put in motion a motor vehicle whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle contrary to s 47 of the Road Traffic Act 1961 (SA) (the “RTA”). The second charge was a charge of behaving in a disorderly manner contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA).
He came before the Magistrates Court without legal representation.
The Magistrate recorded a conviction on each charge. As to the first charge, the Magistrate imposed a sentence that was the minimum permissible in the circumstances before him, a fine of $700 and an order disqualifying Mr Bawden from holding or obtaining a driver’s licence for 12 months commencing on the date of the offence. As to the second charge, he imposed a fine of $200.

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 Bawden v Police

Details

AGLC: Bawden v Police [2006] SASC 260
Case: [2006] SASC 260
Decision Date: 22 August 2006

CaseChat Overview and Summary

The matter of Bawden v Police was an appeal against sentence brought before the court. The appellant, Bawden, had pleaded guilty in the Magistrates Court to charges of being under the influence of intoxicating liquor to the extent of being incapable of exercising effective control over a motor vehicle, as well as behaving in a disorderly manner. The charges were laid under the Road Traffic Act 1961 (SA) and the Summary Offences Act 1953 (SA), respectively. Following his guilty pleas, the Magistrate imposed a fine of $700 for the first offence and disqualified the appellant from holding or obtaining a driver's licence. The central issue in this appeal was whether the Magistrate erred in disqualifying Bawden from holding or obtaining a driver's licence.

The court was tasked with determining whether the offence could be characterised as trifling, which would have provided a basis for refraining from imposing the mandatory minimum sentence of a 12-month licence disqualification. The court considered the circumstances of the offending, which involved the appellant causing his motor vehicle to remain stationary in the middle of a main road at night. The court examined sections 47(3) of the Road Traffic Act 1961 (SA), 16 and 39 of the Criminal Law (Sentencing) Act 1988 (SA) in the context of the appeal. The court found that the legislation did not provide a basis to refrain from imposing the minimum licence disqualification if the offence could not be characterised as trifling.

The appeal was dismissed. The court held that the circumstances of the offending were such that the offence could not be considered trifling. As such, the Magistrate did not err in imposing the mandatory minimum sentence of a 12-month disqualification from holding or obtaining a driver's licence. The court's reasoning was grounded in the statutory provisions and the specific circumstances of the case, which led to the conclusion that the appeal was without merit. The final orders of the court were to dismiss the appeal and uphold the sentence imposed by the Magistrate.

Orders