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

1. 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.

2. 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).

3. 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.

4. 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 years. There were some additional complications in sentencing the appellant as the offending on this occasion constituted a breach of a bond which had been imposed in 2009 for other offences including assault, hinder police, unlawful possession and damaging property. Nevertheless, those other complications are not relevant to the disposition of this appeal and no complaint is made about the Magistrate’s sentence in respect of those offences or the fact that she elected to extend the bond.

5. The offences of stealing and unlawful possession were committed when the appellant walked past a vehicle parked on the road at Ingle Farm and made what was an apparently spontaneous decision to steal items from a vehicle which appears from the record to have been unlocked. The appellant appeals only that portion of the sentence which relates to the disqualification of the appellant’s licence. The appellant contends that the Magistrate did not have the power to disqualify the appellant’s driver’s licence and that the sentence is therefore ultra vires. There is 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). There is a power to disqualify a driver’s licence for 12 months for an offence of illegal interference of a motor vehicle on conviction of that offence contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA). However, that was the charge that was withdrawn. 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. These circumstances include where a vehicle was used in the commission of an offence or in which a vehicle facilitated the commission of an offence and I note the terms of s 168 of the Road Traffic Act 1961 (SA).

6. A useful example of the nexus required between the offending and s 168(1) of the Road Traffic Act 1961 (SA) is to be found in R v Waugh,[1] a decision of the Court of Criminal Appeal. Other examples to which I was referred by counsel for the respondent include Dixon v Steel,[2] Maher v French[3] and Keynes v Kowald[4] which also provide useful discussion of the limits of s 168 of the Road Traffic Act 1961 (SA).

   [1] (2005) 93 SASR 274.

   [2] (1972) 3 SASR 116.

   [3] (1974) 7 SASR 504.

   [4] (1976) 13 SASR 354.

7. The police have conceded that the facts in this case do not give rise to a sufficient nexus between s 168(1) which is the relevant subsection of the Road Traffic Act 1961 (SA) and that there was no power in the circumstances to order a disqualification of licence. In my view that concession was correctly made. The appeal must therefore be allowed to the extent that the licence disqualification imposed by the Magistrate on 25 May 2012 is quashed.

8. The consequential orders of the court are:

   1.An extension of time within which to file the notice of appeal is granted.

   2.The appeal is allowed to the extent that the disqualification imposed by the Magistrate is quashed.

   3.No order as to costs.