Davies v Police - [2013] SASC 141

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
DAVIES v POLICE
[2013] SASC 141
Judgment of The Honourable Justice Kelly (ex tempore)
13 August 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeal from decision of Magistrate – appellant pleaded guilty to two counts of stealing and unlawful possession – Magistrate imposed sentence of imprisonment of one month and disqualification of driver’s licence for three years – appeals against portion of sentence which disqualifies the appellant’s driver’s licence – appeals on ground that driver’s licence disqualification was ultra vires – whether sufficient nexus between offending and s 168(1) of the Road Traffic Act 1961 (SA).
Held: extension of time within which to file notice of appeal granted – appeal allowed – respondent conceded no sufficient nexus between offending and s 168(1) of the Road Traffic Act – licence disqualification quashed.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 134; Summary Offences Act 1953 (SA) s 41(1); Criminal Law Sentencing Act 1988 (SA); Road Traffic Act 1961 (SA) s 168(1), referred to.
R v Waugh (2005) 93 SASR 274; Dixon v Steel (1972) 3 SASR 116; Maher v French (1974) 7 SASR 504; Keynes v Kowald (1976) 13 SASR 354, considered.

DAVIES v POLICE
[2013] SASC 141
Magistrates Appeal: Criminal

KELLY J (ex tempore): The appellant Danny John Davies appeals against a sentence imposed in the Holden Hill Magistrates Court on 25 May 2012. As the appellant’s notice of appeal was filed well out of time, on 13th June 2013, it is necessary to set out the background facts as a proper understanding of the facts leads to the conclusion that an extension of time within which to file an appeal should be granted and the appeal allowed.
The appellant was originally charged on information with three offences, namely interference with a motor vehicle contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA), theft contrary to s 134 of the Act and unlawful possession contrary to s 41(1) of the Summary Offences Act 1953 (SA). The police eventually agreed to resolve the matter by accepting pleas of guilty to two counts of stealing and unlawful possession and withdrawing the charge of interference with the motor vehicle contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA).
On 25 May 2012 the learned Magistrate took pleas to counts 2 and 3 on the information, that is stealing and unlawful possession, and then dismissed the first count of interference with a motor vehicle for want of prosecution. That was duly noted on the court record.
The Magistrate then sentenced the appellant to a term of imprisonment of one month and imposed a disqualification of the appellant’s driver’s licence for three…

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: Davies v Police [2013] SASC 141
Case: [2013] SASC 141
Decision Date

CaseChat Overview and Summary

Danny John Davies appealed against a sentence imposed in the Holden Hill Magistrates Court. The appellant pleaded guilty to two counts of stealing and unlawful possession. The magistrate sentenced him to a term of imprisonment of one month and disqualified him from holding a driver’s licence for three years. The appellant appeals against the disqualification of his driver’s licence, contending that the magistrate did not have the power to disqualify his driver’s licence. The court needed to decide whether the magistrate had the power to disqualify the appellant’s driver’s licence. The court held that there was no general power to disqualify a driver’s licence either in the Criminal Law Consolidation Act 1935 (SA) or in the Criminal Law (Sentencing) Act 1988 (SA). The only other power to disqualify a driver’s licence is to be derived from s 168 of the Road Traffic Act 1961 (SA) in certain circumstances. The police conceded that the facts in this case did not give rise to a sufficient nexus between s 168(1) which is the relevant subsection of the Road Traffic Act 1961 (SA). The court quashed the disqualification imposed by the magistrate. The court granted an extension of time within which to file the notice of appeal, allowed the appeal to the extent that the disqualification imposed by the magistrate was quashed, and made no order as to costs.

Orders