Collins v Police - [2009] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COLLINS v POLICE
[2009] SASC 114
Judgment of The Honourable Chief Justice Doyle
4 April 2009
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
Appellant pleaded guilty to two counts of driving while disqualified from holding or obtaining a driver’s licence – two weeks before the incident the subject of the first offence, the appellant was convicted of the same offence and was fined – incident the subject of the second offence occurred three weeks after the incident the subject of the first offence – Magistrate sentenced appellant to three weeks’ imprisonment in respect of each offence – Magistrate suspended sentence of imprisonment imposed in respect of the first offence but declined to do so in respect of the second offence – appeal against sentence imposed by Magistrate.
HELD: Magistrate erred in imposing a sentence of imprisonment to take effect cumulatively upon or concurrently with a suspended sentence of imprisonment (s 38(2) Criminal Law (Sentencing) Act 1988 (SA)) – appeal allowed – appropriate that appellant be resentenced – sentence of imprisonment called for to demonstrate that disqualification orders must be observed and that breaches of such orders will ordinarily be met with severe punishment – appellant sentenced to two weeks’ imprisonment in respect of the first offence, to be served concurrently with 19 days’ imprisonment imposed in respect of the second offence – if offending conduct contumacious, there will be little in the circumstances of the offending to support a finding of ‘good reason’ to suspend a sentence of imprisonment – no good reason to suspend sentence of imprisonment – appellant sentenced to terms of imprisonment actually to be served.
Motor Vehicles Act 1959 (SA) s 9(1), s 91, s 102(1); Criminal Law (Sentencing) Act 1988 (SA) s 38(2); Magistrates Court Act 1991 (SA) s 42(5)(a), referred to.
Nash v Police [2009] SASC 112, applied.

COLLINS v POLICE
[2009] SASC 114
Magistrates Appeal: Criminal

DOYLE CJ: Mr Collins was charged with driving offences on two complaints filed in the Magistrates Court. The first offences in time (“the first offences”) comprised one count of driving an unregistered vehicle, one count of driving an uninsured vehicle, and one count of driving while disqualified from holding or obtaining a driver’s licence. Another complaint charged Mr Collins with driving while disqualified from holding or obtaining a driver’s licence.
Mr Collins pleaded guilty to all offences. In respect of each offence of driving while disqualified, the Magistrate sentenced Mr Collins to three weeks imprisonment. The Magistrate suspended the term of imprisonment that she imposed in respect of the first offence of driving while disqualified, but declined to suspend the sentence of imprisonment that she imposed in respect of the second offence.
Mr Collins appeals against the sentences imposed by the Magistrate. He claims that the length of each sentence is excessive, and that the Magistrate erred in failing to order that the second sentence of imprisonment be suspended.
Background
The first offences
On…

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 Collins v Police

Details

AGLC: Collins v Police [2009] SASC 114
Case: [2009] SASC 114
Decision Date: 4 April 2009

CaseChat Overview and Summary

Collins v Police is an appeal against sentences imposed by a Magistrate in South Australia. The appellant was convicted of two counts of driving while disqualified from holding or obtaining a driver's licence, with the second offence occurring three weeks after the first. The Magistrate sentenced the appellant to three weeks' imprisonment for each offence, suspending the sentence for the first offence but not the second. The appellant appeals against the sentence, arguing that it is excessive and that the Magistrate erred in not suspending the sentence for the second offence.

The central legal issues in the appeal concern the appropriate sentence for the appellant's repeated breaches of disqualification orders and the application of the statutory provisions relating to sentencing, particularly section 38(2) of the Criminal Law (Sentencing) Act 1988 (SA), which prohibits the imposition of a sentence of imprisonment to take effect cumulatively upon or concurrently with a suspended sentence of imprisonment. The Court must consider whether the Magistrate correctly assessed the seriousness of the appellant's offences and the need to impose a sentence that demonstrates the gravity of breaching disqualification orders. Furthermore, the Court must determine whether there was a good reason to suspend the sentence for the second offence.

The Court held that the Magistrate erred in imposing a sentence of imprisonment to take effect cumulatively upon or concurrently with a suspended sentence of imprisonment, contrary to section 38(2) of the Criminal Law (Sentencing) Act 1988 (SA). The Court allowed the appeal, setting aside the sentences imposed by the Magistrate and resentencing the appellant. The Court imposed a sentence of two weeks' imprisonment for the first offence, to be served concurrently with a 19-day imprisonment for the second offence. The Court concluded that there was no good reason to suspend the sentences, given the appellant's contumacious conduct and repeated breaches of disqualification orders. The Court did not impose any further period of licence disqualification and directed that the sentences of imprisonment commence on the day the appellant was taken into custody.

Orders

Orders of the court

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Background

Background to the litigation

Mr Collins appeals against the sentences imposed by the Magistrate. He claims that the length of each sentence is excessive, and that the Magistrate erred in failing to order that the second sentence of imprisonment be suspended.BackgroundThe first offences On 1 July 2008 police officers stopped a car being driven by Mr Collins. Police checks revealed that the car was unregistered and uninsured, and that Mr Collins was disqualified from holding or obtaining a driver’s licence. Mr Collins was charged on a complaint filed in the Magistrates Court on 9 December 2008. The complaint charged Mr Collins with one count of driving an unregistered motor vehicle on a road, contrary to s 9(1) of the Motor Vehicles Act 1959 (SA) (“the MVA”); with one count of driving an uninsured motor vehicle on a road, contrary to s 102(1) of the MVA, and with one count of driving a motor vehicle on a road while being disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the MVA. Mr Collins pleaded guilty to the first offences on 3 March 2009 and was sentenced in respect of those offences on the same day. Second offence against s 91 On 23 July 2008, about three weeks after the incident giving rise to the first offences, a car driven by Mr Collins was stopped by police. Mr Collins immediately informed police that he was disqualified from holding or obtaining a driver’s licence. The police arrested Mr Collins and took him into custody. When interviewed by police, Mr Collins told the police that he was driving from his house to that of a friend, and that he had no reason to drive. He told the police that the passenger in the car was the holder of a full licence and could have driven to the friend’s house. Mr Collins acknowledged that driving while disqualified was an offence. Mr Collins was charged on a complaint filed in the Magistrates Court on 21 October 2008 with one count of driving while disqualified from holding or obtaining a driver’s licence. Mr Collins pleaded guilty to this charge on 16 December 2008, and was sentenced in relation to this offence on 3 March 2009 when he was sentenced in relation to the first offences. Previous driving offences At the time of the incidents which gave rise to the charges against him, Mr Collins was disqualified from holding or obtaining a driver’s licence for a period of one year commencing on 12 November 2007. The disqualification was imposed by a magistrate after Mr Collins was convicted of driving a vehicle at a speed dangerous to the public. On 16 June 2008, two weeks prior to the incident which gave rise to the first offences, Mr Collins was convicted of driving while disqualified. The conviction related to an incident which occurred in February 2008. A magistrate fined Mr Collins $250. This offence meant that the breaches of s 91 of the MVA the subject of appeal were subsequent offences and liable to a maximum penalty of two years imprisonment.Submissions in mitigation of penalty before the Magistrate

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In short, in the unusual circumstances of the case, I consider that the approach that I have taken is proper, although it is the outcome of a successful appeal by Mr Collins.Conclusion I allow the appeal against sentence. I set aside the sentences imposed by the Magistrate in respect of the offences against s 91 of the MVA on 1 July 2008 and 23 July 2008. In relation to the offence of 1 July 2008, I impose a sentence of two weeks imprisonment. In respect of the offence on 23 July 2008, I impose a sentence of imprisonment for 19 days. I direct that those sentences operate concurrently. I do not order that the sentences be suspended. The sentences imposed by the Magistrate in respect of the other offences of 1 July 2008 will stand. I do not impose any further period of licence disqualification. I direct that the sentences of imprisonment be taken to have commenced on the day on which Mr Collins is taken into custody for the offences now before the Court.

Ratio Decidendi

Legal Principle Established

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