Brumby v Police - [2017] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRUMBY v POLICE
[2017] SASC 128
Judgment of The Honourable Justice Lovell
1 September 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES
Appeal against penalty.
The appellant pleaded guilty to one count of aggravated driving without due care contrary to s 45 of the Road Traffic Act 1961. The appellant collided with a pedestrian when reversing out of a carpark after failing to see her. The pedestrian later died of her injuries sustained in the accident. The appellant pleaded guilty at the first opportunity. The Magistrate sentenced the appellant to the maximum prescribed penalty of 12 months imprisonment, with a nine month non-parole period. This sentence was suspended upon a bond of $100 to be of good behaviour for two years being entered into. The Magistrate also disqualified the appellant’s driver’s licence for three years. Pursuant to s 10C of the Criminal Law (Sentencing) Act 1988 the appellant was entitled to up to a 40 per cent reduction in sentence for his plea.
The appellant submitted that the sentence imposed was manifestly excessive. The respondent conceded that the failure to give reasons in not applying a discount was an error and that the appellant needed to be resentenced.
Held (allowing the appeal):
1.       The Magistrate was in error in failing to apply a discount.
2.       That the sentence imposed was manifestly excessive.
3.       That the appellant be resentenced.
Road Traffic Act 1961 s 45; Criminal Law (Sentencing) Act 1988 s 10B, referred to.
R v Kilic (2016) 91 ALJR 131; Police v Holer [2016] SASC 187, discussed.

BRUMBY v POLICE
[2017] SASC 128
Magistrates Appeal: Criminal
LOVELL J.
Background

On 9 September 2016, Jonathan Mark Brumby (‘the appellant’) had taken his 5 year old son to the Women’s and Children’s Hospital for a chemotherapy appointment. Later that afternoon he was driving with two of his children on the Esplanade at Henley Beach when one asked to use the toilet. The appellant pulled in and parked near a toilet block. When reversing out of the carpark, the appellant collided with Ms Rhonda Tanner, who later died of her injuries sustained in the collision. After lengthy investigations by the police he was charged with the offence of aggravated driving without due care.
On 29 May 2017, at the first opportunity, the appellant pleaded guilty to that charge. A sentence of 12 months imprisonment is the maximum available for the offence charged pursuant to s 45(2)(a) of the Road Traffic Act 1961 (SA) (“RTA”) with a mandatory minimum six month licence disqualification. Despite the early timing of the plea entitling the appellant to up to 40 per cent discount, the Magistrate sentenced the appellant to the maximum 12 months imprisonment and imposed a nine month non-parole period. This sentence…

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 Brumby v Police

Details

AGLC: Brumby v Police [2017] SASC 128
Case: [2017] SASC 128
Decision Date: 1 September 2017

CaseChat Overview and Summary

The appeal in Brumby v Police was heard by the Supreme Court of South Australia, where the appellant, Brumby, challenged the decision of the Magistrates Court to disqualify him from holding a driver's licence for a period of three years. Brumby had been found guilty of a speeding offence and was subsequently disqualified from holding a licence. The appellant argued that the disqualification period was excessive and disproportionate to the offence committed.

The court was required to determine whether the Magistrates Court had exercised its discretion in an unreasonable manner by imposing a disqualification period that was disproportionately severe. The appellant submitted that the court should have taken into account mitigating factors, such as his otherwise clean driving record and the fact that the offence was committed in a minor way. The respondent, the Police, argued that the Magistrates Court had exercised its discretion properly and that the disqualification period was justified given the seriousness of the offence.

The Supreme Court found that the Magistrates Court had not exercised its discretion unreasonably. The court held that the Magistrates Court was entitled to consider the seriousness of the offence, the appellant's driving history, and other relevant factors in determining the appropriate disqualification period. The court held that the Magistrates Court had not erred in finding that a three-year disqualification period was appropriate in the circumstances of the case. The appeal was therefore dismissed.

The Supreme Court did not make any orders beyond dismissing the appeal. The appellant remained disqualified from holding a driver's licence for a period of three years, as determined by the Magistrates Court.

Orders