SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ELLIS v POLICE
[2008] SASC 297
Judgment of The Honourable Justice Kelly
31 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence - appellant pleaded guilty to driving a motor vehicle while there was present in his blood in excess of the prescribed concentration of alcohol - 0.112 grams of alcohol per 100 millilitres of blood - appellant had one prior conviction of driving under the influence, which was outside the statutory five year period - magistrate used s 39 of the Criminal Law (Sentencing) Act 1988 to substitute the fine for a good behaviour bond of 3 years with 6 months under the supervision of a Correctional Services Officer - magistrate also disqualified the appellant from driving for fourteen months after taking into account 4 months already disqualified - whether the sentence was manifestly excessive.
Held: appeal allowed - in the circumstances the imposition of a 3 year bond with the condition to be under supervision for 6 months was manifestly excessive - appellant sentenced afresh to a fine of $750 and the licence disqualification is reduced to 10 months.
Road Traffic Act 1961 s 47B; Criminal Law (Sentencing) Act 1988 ss 16 and 39, referred to.
Janz v Woolven, Lush v Hayes (1990) 55 SASR 239, applied.
R v Szpajchler (1982) 31 SASR 236; R v Yousef (2005) 155 A Crim R 134; Hodgins v Police [2008] SASC 176; Griffin v Police [2005] SASC 337; Police v Wait [2008] SASC 153, discussed.
ELLIS v POLICE
[2008] SASC 297Magistrates Appeal
Kelly J
Introduction
The appellant appeals against a sentence imposed in the Mount Gambier Magistrates Court on 22 July 2008. The appellant was convicted on his plea of guilty to one count of driving a motor vehicle while there was present in his blood in excess of the prescribed concentration of alcohol contrary to Section 47B of the Road Traffic Act 1961 (“RTA”). As the appellant’s blood alcohol concentration was .112 at the relevant time, he was deemed to have committed a Category 2 offence contrary to s 47B(1).
The penalty for that offence attracted a fine of not less than $700 and not more than $1,200 and disqualification from holding or obtaining a driver’s licence for a period of not less than six months.
The learned sentencing magistrate convicted the appellant and released him on a bond in the sum of $500 to be of good behaviour for a period of three years and to be under the supervision of an officer of the Department for Correctional Services for a period of six months. He was also ordered to obey that officer’s directions, in particular to participate in a road accident awareness program within six months. The magistrate also imposed a fourteen month licence disqualification after taking into account the period of…
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- ELLIS v Police [2008] SASC 297
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- [2008] SASC 297
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CaseChat Overview and Summary
The legal issue was whether the magistrate's imposition of a three-year bond with six months of supervision was appropriate under the circumstances. The appeal raises the question of whether the magistrate correctly used section 39 of the Criminal Law (Sentencing) Act 1988 in substituting the fine for a bond with specific conditions.
The court found that the sentence was manifestly excessive. The court held that, in the circumstances, the imposition of a three-year bond with six months of supervision was inappropriate. The court noted that the appellant had no recent prior convictions and seemed to have a stable life situation. The court considered the sentence disproportionate to the offence and the appellant's circumstances. The appeal was allowed, and the appellant was re-sentenced to a $750 fine and a ten-month licence disqualification.
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Background
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Evidence
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Decision
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