Datson v Police - [1999] SASC 59

DATSON v POLICE

[1999] SASC 59
Magistrates Appeal
Nyland J

This is an appeal against sentence. On 5 September 1998 near Redhill, the appellant drove a vehicle, namely a car, on a road, namely Highway One, at a speed of 183 km/h when the speed limit was 110 km/h. The appellant appeared before a stipendiary magistrate in the Port Pirie Magistrates Court on 7 December 1998 and pleaded guilty to a charge of driving at a speed which was dangerous to the public, contrary to the provisions of s 46 of the Road Traffic Act 1961 (the Act). Following the entry of a plea of guilty, a second charge of speeding was withdrawn.
At the hearing in the Magistrates Court, the appellant was unrepresented. Before the matter proceeded, the magistrate informed the appellant of his rights, including the right to legal representation. He also informed the appellant of the likely penalty and informed him of the minimum licence disqualification of six months. The magistrate then said to the appellant “you would be getting all of that”. In his affidavit filed in support of the appeal, the appellant said that the magistrate did not inform him of his right to make an application under oath that the offence be determined trifling for the purposes of reducing the minimum length of licence loss to one month. As a result, the appellant claims that he was wrongly led to believe that the minimum possible licence loss was six months and that, if he proceeded that day, he would receive a fine and a penalty of not more than six months loss of licence. Accordingly, the appellant did not seek legal advice and remained ignorant of his right to make a “trifling application”.
It appears that in the course of the hearing, the magistrate questioned the appellant about his reason for speeding. The appellant responded that he had no reason, but that he thought he was travelling at about 140 km/h. The magistrate was informed that the appellant had no prior convictions and was provided with a letter from the appellant’s employer, indicating that he was employed as a truck driver. The magistrate does not appear to have made any notes as to other matters pertinent to sentencing and provided virtually no reasons for the sentence. The extent of his remarks is that he regarded the offence “as a most serious breach of s 46 of the Road Traffic Act”. He said that “if I could impose more I would”. He then imposed the maximum fine of $600 and disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months.
The appellant has appealed against that sentence on the ground that it is manifestly excessive. Mr Stretton appeared as counsel for the appellant on the hearing of the appeal. He submitted that the learned magistrate failed adequately to exercise his duty towards the appellant as an unrepresented defendant by failing to inform him of all the rights and…

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 Datson v Police

Details

AGLC: Datson v Police [1999] SASC 59
Case: [1999] SASC 59
Decision Date: 3 February 1999

CaseChat Overview and Summary

Datson appealed against his sentence in the Port Pirie Magistrates Court, which found him guilty of driving at a dangerous speed. The appellant drove at 183 km/h on a road with a speed limit of 110 km/h. The court imposed a maximum fine of $600 and disqualified the appellant from holding a driver’s licence for 12 months. The appellant argued that the sentence was manifestly excessive, as the magistrate failed to inform him of his right to make a trifling application, which could have reduced the minimum length of licence loss to one month. The court held that the magistrate failed to exercise his duty towards the appellant as an unrepresented defendant by not informing him of all the rights and avenues available to him. The court also held that the sentence imposed was manifestly excessive, and the sentencing discretion had miscarried. The court substituted the fine with $400 and reduced the order for disqualification to a period of six months. The method of repayment and the date from which the disqualification is to commence shall be in accordance with the order of the magistrate.

The court considered the appellant’s good character, the circumstances of the offence, and the lack of actual danger caused by the driving. The court found that the appellant had an arguable case for the offence to be held trifling, and the magistrate had limited information before him concerning the circumstances of the offence. The court held that the magistrate’s failure to inform the appellant of his right to make a trifling application was an error which required the appeal to be allowed. The court also held that it is the task of Parliament to set the range of penalties appropriate to any given offence, and the magistrate’s imposition of the maximum monetary penalty for a first offence was inappropriate. The court allowed the appeal and substituted the sentence imposed by the magistrate.

Orders