CHAPMAN v Police - [2009] SASC 196

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
CHAPMAN v POLICE
[2009] SASC 196
Judgment of The Honourable Justice Bleby (ex tempore)
25 June 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING BODILY HARM - SOUTH AUSTRALIA
Appeal against sentence imposed by Magistrate – appellant pleaded guilty to one count of causing harm by dangerous driving – sentenced to six months imprisonment, suspended - 15 month licence disqualification imposed – appellant young and inexperienced driver – lost control of car while travelling at excessive speed – two passengers injured, one quite seriously - appellant had not ingested any alcohol or drugs – whether Magistrate erred in determining that the offence required a sentence of imprisonment – whether sentence manifestly excessive.
Appeal dismissed – offence carried maximum penalty of five years imprisonment – passenger’s injuries at the higher end of the scale of harm – deterrence a critical factor - Magistrate had little choice but to impose sentence of imprisonment – sentence not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 19A; Criminal Law Sentencing Act 1988 (SA) s 11, referred to.
Markarian v The Queen (2005) 228 CLR 357; R v Morse (1979) 23 SASR 98, applied.
R v Johnston (1985) 38 SASR 582; R v Thompson (1975) 11 SASR 217, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive"

CHAPMAN v POLICE
[2009] SASC 196
Magistrates Appeal

BLEBY J. (Ex tempore) On 3 March 2009 the appellant pleaded guilty in the Adelaide Magistrates Court to a charge, on information, of one count of causing harm as a result of driving in a culpably negligent manner, or recklessly, or at a speed or in a manner which was dangerous to the public, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA).
The offence is a minor indictable offence. The maximum penalty for the offence is imprisonment for five years. There is a mandatory licence disqualification for a period of not less than 12 months.
The appellant was sentenced on 31 March 2009 to six months imprisonment. The term of imprisonment was suspended upon the appellant entering into a bond in the sum of $10 to be of good behaviour for a period of two years. The appellant was also disqualified from holding or obtaining a driver’s licence for 15 months.
The offence occurred in the early hours of 17 March 2007, at approximately 1.40 am. The appellant had finished working a shift at the Lion Hotel in North Adelaide. He offered a lift to Claire Fitzgerald and Bridget Coffey into the city.
Prior to the collision, the appellant was travelling in a westerly direction along Sir Edwin Smith Avenue in North Adelaide. Upon reaching the intersection of…

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.

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Details

AGLC: CHAPMAN v Police [2009] SASC 196
Case: [2009] SASC 196
Decision Date: 25 June 2009

CaseChat Overview and Summary

The appellant, Chapman, appealed against the sentence imposed by a Magistrate in South Australia. Chapman had pleaded guilty to a charge of causing harm by dangerous driving. He was sentenced to six months imprisonment, which was suspended, and a 15-month licence disqualification was imposed. Chapman, a young and inexperienced driver, lost control of his car while travelling at an excessive speed. The incident resulted in two passengers being injured, with one sustaining serious injuries. Chapman had not consumed any alcohol or drugs at the time of the offence. The appeal focused on whether the Magistrate had erred in determining that a sentence of imprisonment was required and whether the sentence was manifestly excessive.

The central legal issues before the court were whether the Magistrate erred in determining that the offence warranted a sentence of imprisonment and if the sentence was manifestly excessive. The court had to consider the maximum penalty for the offence, the severity of the injuries sustained by the passengers, and the role of deterrence in sentencing.

The court found that the maximum penalty for the offence of causing harm by dangerous driving was five years imprisonment. Given that one of the passengers had sustained injuries at the higher end of the scale of harm, the court reasoned that the Magistrate had little choice but to impose a sentence of imprisonment to ensure adequate deterrence. The court held that the sentence was not manifestly excessive, taking into account the gravity of the offence and the need to deter similar conduct in the future. Consequently, the appeal was dismissed.

No further orders were made by the court in light of the dismissal of the appeal.

Orders