Fewings v POLICE - [2008] SASC 205

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FEWINGS v POLICE
[2008] SASC 205
Judgment of The Honourable Justice Vanstone
22 July 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Appeal against sentence - appellant pleaded guilty to summary offences, including four counts of driving whilst disqualified - magistrate found the repetition of driving offences was contumacious - sentence of four months imprisonment imposed - appellant previously served one month in custody prior to sentence - whether magistrate erred in not taking into account a period spent in custody on question of suspension - whether sentence should have been wholly or partly suspended. Held: an appellate court will only interfere with the sentence if the exercise of discretion has miscarried - magistrate did not err in failing to suspend sentence - appeal dismissed.
Magistrates Court Act 1991 s 42; Motor Vehicles Act 1959 s 9, s 74, s 91, s 102; Summary Offences Act 1953 s 41; Road Traffic Act 1961 s 38 (repealed); Controlled Substances Act 1984 s 32; Bail Act 1985 s 17; Criminal Law (Sentencing) Act 1988 s 30(2), s 38, s 38(2a); Criminal Law Consolidation Act 1935 s 352, referred to.
R v McDonald (1974) 8 SASR 388; R v Mangelsdorf; R v Perry; R v Richards (1995) 66 SASR 60; R v Walker (1981) 27 SASR 315, applied.
House v The Queen (1936) 55 CLR 499; R v Wilton (1981) 28 SASR 362; Williams v McDonald (1984) 113 LSJS 210; Renshaw v Director of Public Prosecutions (Cth) (1996) 67 SASR 139, considered.

FEWINGS v POLICE
[2008] SASC 205
Magistrates Appeal

VANSTONE J: Keith John Fewings appeals against a sentence imposed in the Magistrates Court after pleading guilty to a number of summary offences, including four offences of driving while disqualified. The sentence imposed was a total of four months imprisonment. The only matters raised by his grounds of appeal are that the magistrate erred in failing to suspend the sentence and erred in failing to consider partially suspending the sentence.
This appeal is lodged pursuant to s 42 Magistrates Court Act 1991. It is an appeal by way of re-hearing. I am to consider the material before the magistrate but I have the power to receive fresh evidence: s 42(4).
The appellant pleaded guilty before the magistrate to the following offences committed on the first mentioned date:
1.24/02/2006: driving while disqualified contrary to s 91 Motor Vehicles Act 1959;
2.19/11/2006: driving while disqualified contrary to s 91 Motor Vehicles Act 1959;
3.20/04/2007: unlawful possession of a quantity of wood contrary to s 41(1) Summary Offences Act 1953; driving while disqualified contrary to s 91 Motor Vehicles Act 1959 and failing to…

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 Fewings v POLICE

Details

AGLC: Fewings v POLICE [2008] SASC 205
Case: [2008] SASC 205
Decision Date: 22 July 2008

CaseChat Overview and Summary

In the case of Fewings v Police, the appellant was appealing against the sentence imposed by the magistrate, who found him guilty of several summary offences, including driving while disqualified. The magistrate determined that the repetition of driving offences was contumacious and imposed a sentence of four months imprisonment. The appellant had previously served one month in custody prior to the sentence and argued that the magistrate erred by not taking into account the time spent in custody when deciding whether to suspend the sentence. The appeal raised the issue of whether the sentence should have been wholly or partly suspended.

The legal issue for the court was whether the magistrate erred in not considering the time spent in custody when deciding on the suspension of the sentence. The court noted that an appellate court would only interfere with the sentence if the exercise of discretion had miscarried. The court held that the magistrate did not err in failing to suspend the sentence. The court found that the appellant's criminal conduct was serious, and the sentence imposed was not manifestly excessive. The court also noted that the appellant had a history of driving while disqualified, and the repetition of the offence was contumacious.

The court dismissed the appeal, holding that the magistrate did not err in failing to suspend the sentence. The court found that the appellant's criminal conduct was serious, and the sentence imposed was not manifestly excessive. The court also noted that the appellant had a history of driving while disqualified, and the repetition of the offence was contumacious. Therefore, the appeal was dismissed, and the sentence remained unchanged. The court did not make any orders regarding costs.

Orders