Forrest v Police - [2021] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
FORREST v POLICE
[2021] SASC 116
Judgment of the Honourable Justice Stein
7 October 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - IMPOSITION OF SECOND CUMULATIVE SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS
This is an appeal against a sentence imposed in the Magistrates Court of South Australia on conviction of four charges of driving a motor vehicle having been disqualified as a consequence of a drug driving offence, and having not since the end of the disqualification period been so authorised to drive, contrary to s 74(2ac) of the Motor Vehicles Act 1959 (SA).
The Magistrate imposed a total period of disqualification from driving of six years. That total disqualification period was comprised of a set of two concurrent three year periods of disqualification and a subsequent, cumulative set of two concurrent three year periods of disqualification.
The appellant appeals the sentence on the basis that the Magistrate failed to order the disqualification periods run concurrently and that the periods of disqualification are manifestly excessive.
Held, allowing the appeal:
1.The Magistrate was required to consider whether there was reasonable cause to postpone the start date of each disqualification pursuant to s 169A of the Road Traffic Act 1961 (SA) and the failure to do so constitutes a process error in the exercise of the Magistrate’s sentencing discretion.
2.The four periods of disqualification from driving contrary to s 74(2ac) of the Motor Vehicles Act 1959 (SA) are set aside and the sentences for that offending are remitted to the sentencing Magistrate.

Magistrates Court Act 1991 (SA) s 42(4); Motor Vehicles Act 1959 (SA) s 74(2ac), s 91(5), s 74(5)(a), and s 74(5)(b); Road Traffic Act 1961 (SA) ss 47B, 47B(3)(b) and 169A; Supreme Court Criminal Rules 2014 (SA) r 104V(1)(a) and r 104V(1)(c), referred to.
Kentwell v The Queen (2014) 252 CLR 601; Mullen v Director of Public Prosecutions (SA) (2020) 136 SASR 274; Pearce v The Queen (1998) 194 CLR 610; Playford v Police [2017] SASC 26; Police v Nowak (2000) SASR 551; Wittwer v Police [2004] SASC 226, applied.
Boehm v Milham (1980) 24 SASR 98; Fitzgerald v Police (2000) 113 A Crim R 413; R v Copeland (No 2) (2010) 108 SASR 398; R v Dube; R v Knowles (1987) 46 SASR 118, discussed.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; House v The King (1936) 55 CLR 499, considered.

FORREST v POLICE
[2021] SASC 116
Magistrates Appeal: Criminal
Overview

The appellant was charged with driving whilst disqualified on 24 October 2019 contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) (‘Motor Vehicles Act’). In relation to that offending, on 21 July 2020, the appellant entered…

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 Forrest v Police

Details

AGLC: Forrest v Police [2021] SASC 116
Case: [2021] SASC 116
Decision Date: 7 October 2021

CaseChat Overview and Summary

The appellant, Forrest, appealed against the sentencing decision of a South Australian Magistrate who imposed a term of imprisonment and a series of disqualification periods from driving. The Magistrate sentenced Forrest to a term of imprisonment of one month for driving whilst disqualified and a further one month for driving without authorization. The imprisonment period was reduced to one month and 12 days and then suspended, with Forrest entering a good behaviour bond for 18 months. The Magistrate also imposed a total period of disqualification from driving of six years in relation to the driving without authorization. The appeal focused on the disqualification periods, which were comprised of two concurrent three year periods and a subsequent, cumulative set of two concurrent three year periods of disqualification. The appeal grounds were: 1) the Magistrate failed to order that each of the three year disqualifications be served concurrently, and 2) the sentence, in so far as it related to the disqualification from driving, was manifestly excessive.

The court found that the Magistrate was required to consider whether there was reasonable cause to postpone the start date of each disqualification pursuant to s 169A of the Road Traffic Act 1961 (SA). The failure to do so constituted a process error in the exercise of the Magistrate's sentencing discretion. The court set aside the four periods of disqualification from driving contrary to s 74(2ac) of the Motor Vehicles Act 1959 (SA) and remitted the sentences for that offending to the sentencing Magistrate.

The appeal was allowed, and the sentences for the disqualification from driving were set aside and remitted to the sentencing Magistrate. The court did not provide specific details about the final orders that would be made by the sentencing Magistrate upon the remand of the case.

Orders

Orders of the court

Held, allowing the appeal:

1. The Magistrate was required to consider whether there was reasonable cause to postpone the start date of each disqualification pursuant to s 169A of the Road Traffic Act 1961 (SA) and the failure to do so constitutes a process error in the exercise of the Magistrate’s sentencing discretion.

2. The four periods of disqualification from driving contrary to s 74(2ac) of the Motor Vehicles Act 1959 (SA) are set aside and the sentences for that offending are remitted to the sentencing Magistrate.

Background

Background to the litigation

A global sentence for the offending was imposed on the appellant on 22 June 2021. The Magistrate sentenced the appellant to a term of imprisonment of one month for the driving whilst disqualified (on 24 October 2019) and a further one month for the Driving Unauthorised. The period of two months of imprisonment was reduced to one month and 12 days after accounting for the 30 per cent reduction due to the appellant’s plea. That period of imprisonment was then suspended on the appellant entering a good behaviour bond for 18 months. The Magistrate also imposed a total period of disqualification from driving of six years in relation to the Driving Unauthorised. That total disqualification period was comprised of a set of two concurrent three year periods of disqualification and a subsequent, cumulative set of two concurrent three year periods of disqualification. It is the period of disqualification that is the subject of this appeal. Background The facts of the offending were not in dispute. The appellant was disqualified from driving for the period of 7 August 2019 to 5 February 2020, having pleaded guilty to one count of driving a motor vehicle with methylamphetamine in his oral fluid. On 24 October 2019, the appellant drove whilst disqualified from doing so. On 14 May 2020, the appellant was in a stationary vehicle when approached by Police. The appellant told Police he was having lots of problems with life. On 3 August 2020, the appellant was stopped by Police while driving. The appellant told Police he needed to go to the service station and a friend’s house. On 28 October 2020, the appellant was stopped by Police while driving. The appellant told Police he drove because he had had an argument with his partner and needed to get out of the house. On 21 December 2020, the appellant was stopped by Police while driving. The appellant told Police he drove to get his vehicle and belongings from his ex‑partner’s house and he could not afford to pay for the course he was required to complete to have his licence returned to him. The appellant pleaded guilty to the Driving Unauthorised. On 22 June 2021, the learned sentencing Magistrate imposed a global sentence for the offending as set out above. That sentence is appealed only in so far as it relates to the disqualification periods for the Driving Unauthorised.Issues on appeal On 8 September 2021, the appellant filed amended grounds of appeal to add an additional ground of appeal relating to an asserted failure by the Magistrate to apply the totality principle. At the commencement of the hearing on 13 September 2021, the appellant’s counsel abandoned the additional ground. Consequently, the appeal proceeded on the basis of the two grounds of appeal articulated in the notice of appeal dated 13 July 2021 as follows: 1.The learned sentencing Magistrate erred in failing to order that each of the three year disqualifications from driving imposed in respect of the Driving Unauthorised be served concurrently (Ground 1).2.The sentence, in so far as it relates to the disqualification from driving, is manifestly excessive (Ground 2). The Magistrate’s ex tempore remarks on sentence

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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