ELLIS v Police - [2008] SASC 297

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 297
Magistrates 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…

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 ELLIS v Police

Details

AGLC: ELLIS v Police [2008] SASC 297
Case: [2008] SASC 297
Decision Date: 31 October 2008

CaseChat Overview and Summary

Ellis appeals against his sentence following his guilty plea to driving with an alcohol concentration of 0.112 grams of alcohol per 100 millilitres of blood. The sentencing magistrate substituted a $500 fine for a three-year good behaviour bond with conditions, including six months of supervision by a Correctional Services Officer. The magistrate also imposed a fourteen-month licence disqualification, considering the four months already disqualified. Ellis argues the sentence was manifestly excessive.

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.

Orders

Orders of the court

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Background

Background to the litigation

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 four months that the appellant had already been disqualified. He ordered the appellant to reappear before him for sentence with respect to the monetary penalty if he failed to comply with the bond. Background At about 2.20pm on 23 March 2008 at Millicent the appellant was stopped at a police breath testing station on the Mount Gambier Road. The breath analysis returned a reading of .112 grams of alcohol in 100 millilitres of blood. A notice of licence disqualification was issued immediately. The appellant had one previous conviction on 25 June 2003 for the offence of driving whilst under the influence committed on 30 November 2002 in respect of which he had been fined $800 and disqualified from holding or obtaining a driver’s licence for a period of fourteen months. Grounds of Appeal The appellant appeals on the ground that the sentence imposed by the magistrate was manifestly excessive in all of the circumstances. The appeal raises the issue of whether it was appropriate for the magistrate to utilise the provisions of Section 39 of the Criminal Law (Sentencing) Act 1988 (“CLSA”) by imposing a bond with a number of conditions including to be of good behaviour, to come up for sentence if called upon, and to be under the supervision of a Correctional Services Officer for a period of six months. The Magistrate’s Remarks In determining an appropriate sentence the magistrate said:You have lived in the Millicent area most of your life. It seems you have been away for a while after finishing your apprenticeship and now you have returned. You have your own business and you employ an apprentice. You are extremely financially secure by the sounds of it but continue to offend against this community and the safety of it.I think there is a special reason here given you claimed inability to appreciate why types of alcohol consumption give rise to what sort of readings to resort to a bond. I do not think there is any question about it. You failed to learn by punishment and I think you need, as I said before, some one-on-one contact, that you need to be under the supervision of an officer of the Department for Correctional Services and I am going to substitute a monetary penalty, which you could easily pay by the sounds of it, for a penalty which is much more appropriate to the circumstances of this offending as claimed by you.With respect to the drink driving offence you will be convicted. I would have imposed a fine of about $900 I would have thought but I am not going to…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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