Chilton v Police

Case [2013] SASC 205

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

CHILTON v POLICE

[2013] SASC 205

Reasons for Decision of The Honourable Justice Nicholson

23 December 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE

On 23 September the appellant was convicted in the Magistrates Court of the offences of exceeding the speed limit and driving whilst disqualified. The Magistrate levied an impounding fee but no fine for the speeding offence and sentenced the appellant to a term of imprisonment for six weeks, unsuspended, for the offence of driving whilst disqualified. Bail was granted to the appellant pending this appeal.

On appeal, the appellant complained, inter alia, that the Magistrate erred in imposing an immediate term of imprisonment.

Held:

1.  Appeal allowed.

2.  The Magistrates Court sentence for the offence of driving whilst disqualified, delivered on 23 September 2013, is set aside.

3.  For the offence of driving whilst disqualified, the appellant is:

(i)  to pay a fine of $1,500; and

(ii)  to perform 80 hours of community service within 12 months of today.

Acts Interpretation Act 1915 (SA) s28A; Criminal Law (Sentencing) Act 1988 (SA) s3, s18, s38, s47, s54; Magistrates Court Act 1991 (SA) s42; Motor Vehicles Act 1959 (SA) s18, s34, s91, referred to.
Eldridge v Bates (1989) 51 SASR 532; House v The King (1936) 55 CLR 499; Long v Police (1998) 72 SASR 515; Meeuwsen v Police [2003] SASC 206; Nash v Police [2009] SASC 112; Police v Cadd & Ors (1997) 69 SASR 150; R v O'Toole [2013] SASCFC 18; Wessling v Police (2004) 88 SASR 57; R v Kruger (1977) 17 SASR 214; R v Wacyk (1996) 66 SASR 530; Dinsdale v R (2000) 202 CLR 321; Naera v Police (1995) LSJS 328; Taylor v Hayes (1990) 53 SASR 252; Ware v Betts (1987) LSJS 212, considered.

CHILTON v POLICE
[2013] SASC 205

Magistrates Appeal: Criminal

NICHOLSON J.

Introduction

  1. The appellant has appealed against a sentence of six weeks imprisonment, unsuspended, imposed by a Magistrate for the offence of driving whilst disqualified.  On 14 May 2013, the appellant committed the offences of exceeding the speed limit and driving whilst disqualified.  On 23 September 2013, the Magistrate recorded convictions for both offences, levied an impounding fee but no fine on account of the speeding offence and imposed the prison term with respect to the drive whilst disqualified offence.  Bail was granted to the appellant pending an appeal to this Court, notice of which was filed on 18 October 2013.

    Background to the offending

  2. The appellant was disqualified from holding a drivers licence in December 2012 for a period of 12 months.  He became unemployed in February 2013 and, for some reason, was ineligible to receive…

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Chilton v Police [2013] SASC 205
Case
[2013] SASC 205
Decision Date

CaseChat Overview and Summary

The appellant has appealed against a sentence of six weeks imprisonment, unsuspended, imposed by a Magistrate for the offence of driving whilst disqualified. The appellant committed the offences of exceeding the speed limit and driving whilst disqualified on 14 May 2013. The Magistrate recorded convictions for both offences on 23 September 2013, levied an impounding fee but no fine on account of the speeding offence and imposed the prison term with respect to the drive whilst disqualified offence. The appellant was granted bail pending an appeal to this Court, notice of which was filed on 18 October 2013.

The legal issues for the Court to determine were whether the Magistrate erred in imposing a sentence of six weeks imprisonment, unsuspended, for the offence of driving whilst disqualified and whether the sentence imposed was manifestly excessive. The Court considered the appellant's criminal history, his circumstances at the time of the offending, and the need for general deterrence and denunciation in sentencing for this type of offence. The Court also considered the appellant's frankness and cooperation with the police at the time of his arrest.

The Court held that the Magistrate did not err in imposing a sentence of six weeks imprisonment, unsuspended, for the offence of driving whilst disqualified. The Court found that the appellant's criminal history, which involved mainly driving offences, warranted a sentence of imprisonment. The Court also found that the appellant's circumstances at the time of the offending, while difficult, did not warrant a sentence of imprisonment that was significantly lesser than the sentence imposed. The Court held that the sentence imposed was not manifestly excessive and that the appellant's frankness and cooperation with the police at the time of his arrest did not warrant a reduction in sentence.

The Court dismissed the appeal and affirmed the sentence of six weeks imprisonment, unsuspended, imposed by the Magistrate for the offence of driving whilst disqualified.

Orders

Orders of the court

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Background

Background to the litigation

The appellant has appealed against a sentence of six weeks imprisonment, unsuspended, imposed by a Magistrate for the offence of driving whilst disqualified. On 14 May 2013, the appellant committed the offences of exceeding the speed limit and driving whilst disqualified. On 23 September 2013, the Magistrate recorded convictions for both offences, levied an impounding fee but no fine on account of the speeding offence and imposed the prison term with respect to the drive whilst disqualified offence. Bail was granted to the appellant pending an appeal to this Court, notice of which was filed on 18 October 2013.Background to the offending The appellant was disqualified from holding a drivers licence in December 2012 for a period of 12 months. He became unemployed in February 2013 and, for some reason, was ineligible to receive Centrelink payments. At the time of the offending the appellant’s daughter was two and a half years old and his partner was pregnant and had been diagnosed with cervical cancer. As a consequence, she also had stopped working. The appellant and his partner had recently purchased a house and were struggling to meet their mortgage repayments. The appellant and his partner were experiencing very difficult financial circumstances and were under significant stress for this reason and because of the cancer diagnosis. Shortly before committing the offences the appellant was offered work as a rigger in Renmark. This work was expected to last 10 days and the appellant was to be paid about $4,000. However, the appellant lived in the environs of Adelaide. As a consequence, and given that he was disqualified from driving at the time, he was booked to stay for the ten day period at a Renmark Hotel. It was intended that his partner would drive him to Renmark in order to start the ten days of work and then drive back at the end of the ten day period to collect him. However, she fell ill the night before the intended journey and on the following morning was not fit to drive. The appellant was due to commence work at 10am. He chose, in view of the circumstances, to drive himself to Renmark. On the way he had a flat tyre which put him behind schedule. In an effort to make up for lost time he broke the speed limit and was pulled over by the police. He admitted to the police that he was disqualified from driving. By all accounts he was frank and cooperative with the police.The appellant’s prior criminal record The appellant has a criminal record involving mainly driving offences but which is of some significance. In particular, this was the third occasion on which the appellant had driven whilst disqualified from driving. In May 2006 the appellant was convicted and fined and his licence suspended for two days for committing the offences of driving an unregistered and uninsured motor vehicle. In October 2006 the appellant was convicted and received a six month licence disqualification for driving with excess blood alcohol, breaching provisional licence conditions and driving an unregistered and uninsured motor vehicle. In May 2007, the appellant was convicted of driving whilst disqualified and sentenced to imprisonment for 28 days which was suspended upon his entering into a three year bond to be of good behaviour. In August 2007 he was again convicted and fined for driving whilst unlicensed and was disqualified from holding or obtaining a drivers licence. In September 2008 the appellant was convicted of a number of traffic offences including one count of driving whilst disqualified. This caused him to breach the bond entered into in 2007 in support of the 28 day suspended sentence for the May 2007 drive disqualified offence. In total the appellant was sentenced to eight weeks imprisonment the balance of which was suspended upon the appellant being placed on a six week bond to be of good behaviour and after serving 14 days of the sentence.[1][1] The precise nature of the penalties imposed is not clear from the offender history report exhibited to the affidavit of Stephen Andrews sworn 19 November 2013 and read as part of the Crown case on appeal. The Magistrate at the time appears to have revoked the suspension, reduced the 28 day sentence to 14 days on the finding of special circumstances (presumably pursuant to s54(4) of the Criminal Law (Sentencing) Act 1988) and sentenced the appellant to six weeks imprisonment for the fresh drive disqualified offending. The Magistrate then apparently effected a partial suspension purportedly in reliance on s38(2a) of the Sentencing Act. However, given the nature of the sentences imposed, there would have been no scope for the application of s38(2a).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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