Carbone v Police - [2005] SASC 371

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CARBONE v POLICE
Judgment of The Honourable Justice Duggan
29 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence imposed by magistrate - appellant sentenced to 7 days imprisonment for driving disqualified - whether sentence manifestly excessive - whether magistrate erred in not suspending sentence of imprisonment - consideration as to meaning of "contumacy" - whether material before magistrate sufficient to make the finding that the offending was contumacious - appeal allowed - sentence imposed by magistrate suspended.
Motor Vehicles Act 1959 s 91, referred to.
Police v Cadd (1997) 69 SASR 150, applied.
White v Police [2000] SASC 127; Rhodes v Police [1999] SASC 191; Scholes v Police [2005] SASC 116; Johns v Police (Lander J, 24 June 1998, unreported), discussed.

CARBONE v POLICE
[2005] SASC 371
Magistrates Appeal

DUGGAN J. The appellant has appealed against his sentence on an admitted charge of driving a motor vehicle while disqualified from holding or obtaining a licence contrary to s 91 of the Motor Vehicles Act 1959.
The disqualification was imposed on 26 February 2004 after the appellant had been convicted of driving at a speed which was dangerous to the public. On that occasion he was fined $300.00 and disqualified from holding or obtaining a driving licence until 25 August 2004.
The appellant was stopped by police officers at about 4.50 pm on 21 June 2004 as he was driving a motor vehicle along Mooringe Avenue, North Plympton. He told the reporting police officer that he was aware that he had been disqualified from holding or obtaining a driver’s licence.
The learned magistrate sentenced the appellant to imprisonment for seven days and declined to suspend the sentence. The grounds of appeal complain that the sentence was manifestly excessive and that the magistrate erred in not suspending the sentence.
In submissions before the magistrate, the appellant’s counsel submitted that the offending was not contumacious. He told the magistrate that on the day of the offence the appellant received a telephone call from a friend who told him that the friend’s 14 year old girlfriend had been stranded at Para Hills High School and that she had no way of getting home. The appellant lives at Para Hills, a short distance from the school. According to counsel’s submissions, the friend viewed the situation as “an emergency” in that it was 4.30 pm and the girl had no way of getting home. He drove the girl to Plympton.
The learned magistrate rejected the submission that the offending was not contumacious. He said the appellant’s decision to drive was indicative of contempt of the court order.
In Police v Cadd (1997) 69 SASR 150 the majority of the Full Court of the Supreme Court held that the punishment for this offence should be imprisonment in…

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 Carbone v Police

Details

AGLC: Carbone v Police [2005] SASC 371
Case: [2005] SASC 371
Decision Date: 29 September 2005

CaseChat Overview and Summary

The appeal against sentence was brought by the appellant, Carbone, who was convicted of driving while disqualified and sentenced to seven days imprisonment by a magistrate. The central issue before the court was whether the sentence was manifestly excessive and if the magistrate erred in not suspending the sentence of imprisonment. Additionally, the court considered the meaning of "contumacy" in the context of sentencing and whether the material before the magistrate was sufficient to find that the offending was contumacious.

The court found that the sentence imposed was manifestly excessive, as the appellant's previous convictions and the nature of the offence did not warrant such a harsh penalty. The court also held that the magistrate erred in not suspending the sentence of imprisonment. The meaning of "contumacy" was considered, and the court found that the material before the magistrate was not sufficient to make a finding that the offending was contumacious. Consequently, the appeal was allowed, and the sentence imposed by the magistrate was suspended.

The court's decision highlights the importance of considering the individual circumstances of each case when imposing a sentence. It also emphasises the need for a clear understanding of the meaning of "contumacy" and the material required to make such a finding. The outcome of this case serves as a reminder for the courts to carefully assess the appropriate sentence for each offender, taking into account the nature of the offence and the individual circumstances of the appellant.

The final order of the court was that the sentence imposed by the magistrate was suspended, and the appeal against the sentence was allowed.

Orders