D'ANIELLO v Police - [2009] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
D'ANIELLO v POLICE
[2009] SASC 172
Judgment of The Honourable Justice Gray
12 June 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
Appeal against sentence - appellant pleaded guilty to offence of driving in a manner dangerous to the public contrary to section 46 of the Road Traffic Act 1961 (SA) - Magistrate sentenced appellant to suspended term of imprisonment of four months and disqualified him from holding or obtaining a driver’s licence for a period of 18 months - appellant aged 19 years at time of offending - whether sentence manifestly excessive - appellant’s appeal lodged 18 months after date of sentence - appellant not aware of right of appeal - whether extension of time appropriate due to appellant’s youth and position.
Held: appeal dismissed - gravity of appellant’s offending warranted a term of imprisonment - appropriate to suspend the term of imprisonment - extension of time not granted.
Road Traffic Act 1961 (SA) s 46, referred to.
Joanni v Police [2004] SASC 225; Graham v Decman (Unreported, Queensland Court of Appeal, Fitzgerald P, Thomas and White JJ, 29 November 1996), considered.

D'ANIELLO v POLICE
[2009] SASC 172
Magistrates Appeal
GRAY J:

This is an appeal against sentence.
On 29 October 2007 Adrian D’Aniello, the defendant and appellant, pleaded guilty to the offence of driving a motor vehicle in a manner that was dangerous to the public, contrary to section 46 of the Road Traffic Act 1961 (SA). The Magistrate sentenced the defendant to a suspended term of imprisonment of four months and disqualified him from holding or obtaining a driver’s licence for a period of 18 months. The suspended sentence bond required the defendant to be of good behaviour for two years, to be under the supervision of a correctional services officer for a period of six months, and to undergo programs that may be directed by that officer, including anger management programs.
The offence occurred at Millicent on Saturday 3 February 2007. At or about 8:10 pm the defendant was driving on Mount Gambier Road in a built up area. There were four passengers in his vehicle. Another motorist following the defendant overtook the defendant’s vehicle. That driver noted that when the passing manoeuvre was complete, the defendant’s vehicle sped up and came into contact with the rear end of his vehicle. As the other vehicle continued to travel along Mount Gambier Road, the defendant’s vehicle attempted to pass on the left. When the defendant’s vehicle was about level with the other vehicle, the defendant moved to his right and his vehicle came into contact with the other vehicle’s passenger side mirror causing minor damage. The defendant’s vehicle continued to veer to its right toward the other vehicle, causing the other vehicle to move onto the incorrect side 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.

Continue reading D'ANIELLO v Police

Details

AGLC: D'ANIELLO v Police [2009] SASC 172
Case: [2009] SASC 172
Decision Date: 12 June 2009

CaseChat Overview and Summary

The appellant, D’Aniello, appealed against a sentence imposed by a Magistrate in South Australia, following a guilty plea to a charge of driving in a manner dangerous to the public under section 46 of the Road Traffic Act 1961 (SA). The Magistrate sentenced D’Aniello to a suspended term of imprisonment of four months and disqualified him from holding or obtaining a driver’s licence for 18 months. D’Aniello lodged his appeal 18 months after the sentence was imposed, claiming he was not aware of his right to appeal and arguing that an extension of time should be granted due to his youth and position. The court was required to determine whether the sentence was manifestly excessive and, if not, whether an extension of time for appeal was appropriate.

The court held that the gravity of D’Aniello’s offending warranted a term of imprisonment and that it was appropriate for the Magistrate to suspend the term. The court considered the nature of the offence, which involved a “road rage” incident where D’Aniello used his vehicle to harass another driver, causing damage to the other vehicle. The court noted that such conduct endangered the safety and lives of passengers in D’Aniello’s vehicle as well as other road users, justifying a sentence of imprisonment. The court found that the Magistrate appropriately took into account D’Aniello’s personal circumstances, including his plea of guilty and his age, and that there was no error in the exercise of the Magistrate’s discretion. The court also considered the decision in Graham v Decman, where similar conduct was deemed serious, justifying a suspended term of imprisonment.

Given that the sentence imposed was considered to be within the Magistrate’s discretion and that D’Aniello had largely served the sentence, the court decided not to grant an extension of time for appeal. The appeal was dismissed, and the sentence upheld. The court’s decision emphasised the importance of general deterrence in cases involving dangerous driving, particularly incidents of road rage.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Graham v Decman,[4] the defendant was convicted of dangerous driving for his involvement in a “road rage” incident whereby he swerved into another vehicle several times causing damage to the other vehicle. The defendant had no record of prior offending except ten speeding offences over an eight-year period. The Queensland Court of Appeal upheld the penalty imposed by the Magistrate; a three month suspended term of imprisonment, a fine of $1,000 and a nine-month driver’s licence disqualification. The defendant harassed another road user. The Court of Appeal took the view that this rendered the defendant’s conduct more serious than or beyond the “normal” case of dangerous driving, and described a similar incident as being one of “deliberate violence using a dangerous weapon”. [4] Graham v Decman (Unreported, Queensland Court of Appeal, Fitzgerald P, Thomas and White JJ, 29 November 1996).Conclusion The defendant’s conduct was serious. He decided to harass another road user because of alleged driving misconduct toward his girlfriend on an earlier occasion. The defendant used his vehicle as an instrument to give effect to his anger. He caused his vehicle to collide with the other vehicle on two occasions. He drove his vehicle in a manner so as to force the other vehicle onto the incorrect side of the road when the other vehicle undertook a U‑turn. He continued harassment by continuing to follow the other vehicle. Road rage has become conduct of serious concern. General deterrence is a material consideration. The conduct of the defendant endangered the safety and lives of passengers in his vehicle as well as other road users. The gravity of the defendant’s conduct was such that the Magistrate was entitled to take the view that a sentence of imprisonment should be imposed. In determining sentence in the within proceedings, the Magistrate appropriately took into account the defendant’s personal circumstances, the defendant’s plea of guilty, and the age of the defendant. The Magistrate gave significant weight to the effect of the defendant’s offending on his family. The Magistrate was entitled, given the personal circumstances of the defendant, to lessen the impact of that sentence by suspending its operation. No error has been demonstrated on the part of the Magistrate in the exercise of his discretion. The sentence imposed by the Magistrate has been largely served. In the circumstances, as the sentence imposed was, in my view, open to the Magistrate, this is a proceeding in which the Court should not grant an extension of the time to appeal. Were I to grant an extension, I would dismiss the appeal on the merits. I refuse to extend time to appeal. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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