FARRELL v Police - [2008] SASC 183

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
FARRELL v POLICE
[2008] SASC 183
Judgment of The Honourable Justice White (ex tempore)
17 June 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Magistrates appeal - Road Traffic Act 1961 s 47B - appellant convicted for having the prescribed concentration of alcohol in his blood - appeal against sentence - extension of time sought to file appeal - whether sentence imposed outside acceptable range of sentencing discretion - whether period of licence disqualification manifestly excessive - no error shown - extension of time for the commencement of the appeal refused - appeal dismissed.
Road Traffic Act 1961 (SA) s 47B, s 47IAA; Supreme Court Rules 2006 r 283, referred to.
Mill v Police [2007] SASC 253; R v Foster (1996) 187 LSJS 135; Gallo v Dawson (1990) 93 ALR 479; Gikas v Police (1999) 202 LSJS 301, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"extension of time"

FARRELL v POLICE
[2008] SASC 183
Magistrates Appeal (ex tempore)

WHITE J: This is an appeal against a sentence imposed by a magistrate.
The appellant pleaded guilty to two offences both of which were committed on 11 June 2006. The first was the offence of driving his car on the Grove Way, Salisbury Heights at a speed of 94 km/h where the applicable speed limit was 60 km/h.
The second offence was that his blood alcohol content of 0.218 grams in 100 ml of blood at the time was a contravention of s 47B of the Road Traffic Act 1961 (RTA).
At the time of detection of this offence, the police, acting under s 47IAA of the RTA, imposed an immediate licence disqualification of 12 months. The appellant has served that licence disqualification in full.
The appellant’s blood alcohol content of 0.218 grams meant that the PCA offence was a category 3 offence. Although the appellant did have prior PCA convictions, this offence had to be treated as a first offence for the purpose of identifying the appropriate maximum and minimum penalty. That meant that the applicable penalty was a fine of not less than $700 and not more than $1200 and a licence disqualification for a period of not less than 12 months.[1]
[1] RTA s 47B(1), (3).
In respect of the speeding offence, the magistrate fined the appellant $400. In respect of the PCA offence, the magistrate fined the appellant $900 and additionally disqualified him from holding or obtaining a driver’s licence for nine months. In fixing that period of licence disqualification, the magistrate took into account, as required, the police-imposed licence disqualification of 12 months. If he had not taken it into account, the magistrate would have had to impose a licence disqualification of at least 12 months.[2]
[2] RTA s 47IAA(9). See…

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: FARRELL v Police [2008] SASC 183
Case: [2008] SASC 183
Decision Date: 17 June 2008

CaseChat Overview and Summary

The appellant, Farrell, was convicted by a Magistrates Court in South Australia of driving with the prescribed concentration of alcohol in his blood under the Road Traffic Act 1961. He sought an appeal against his sentence, which included a period of licence disqualification. The appeal hinged on whether the sentence imposed was outside the acceptable range of sentencing discretion and whether the period of licence disqualification was manifestly excessive. Farrell also sought an extension of time to file the appeal.

The Supreme Court was required to determine if the Magistrates Court erred in the sentencing process and whether the period of licence disqualification was excessive. The court considered the principles of sentencing and the Magistrates Court's discretion in imposing penalties. The Supreme Court also evaluated whether the Magistrates Court's decision was so unreasonable that it amounted to an error of law.

The Supreme Court found no error in the Magistrates Court's sentencing discretion or the period of licence disqualification. The sentence was considered to be within the acceptable range, and the period of licence disqualification was not manifestly excessive. Consequently, the Supreme Court dismissed the appeal and refused the extension of time for the commencement of the appeal. The appeal was dismissed, and the original sentence and disqualification period were upheld.

Orders