Frohling v Police - [2011] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FROHLING v POLICE
[2011] SASC 53
Judgment of The Honourable Justice Nyland
20 April 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
Appeal against sentence - impounding order made in addition to sentence imposed for driving offences - question of financial or physical hardship - whether Magistrate erred in declining to exercise her discretion under s 13 Impounding Act - whether Magistrate failed to have regard to relationship between s 4(2) and s 13 - appellant required to establish more than ordinary hardship - appellant repeat offender - no error in approach taken by Magistrate - appeal dismissed.
Road Traffic Act 1961 (SA) S 47B; Motor Vehicles Act 1959 (SA) s 81A; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) ss 4, 11, 12, 13, referred to.
Taylor v Attorney-General (SA) (1991) 55 SASR 462, discussed.
Cutting v Police 2009 SASC 326, considered.

FROHLING v POLICE
[2011] SASC 53

Magistrates Appeal

NYLAND J: This is an appeal against an impounding order made by a Stipendiary Magistrate in the Mount Barker Magistrates Court on 17 November 2010. On that occasion the appellant pleaded guilty to one count of driving a vehicle whilst exceeding the prescribed concentration of alcohol, contrary to s 47B Road Traffic Act 1961 (SA) (“RTA”) and one count of breaching a prescribed condition of his probationary licence contrary to s 81A Motor Vehicles Act 1959 (SA) (“MVA”).
Following the entry of the pleas of guilty the prosecution made an application for an order impounding the appellant’s vehicle, pursuant to s 12b(i) Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (“Impounding Act”). The learned Magistrate granted that application and in addition to imposing penalties with respect to the charged offences, made an order impounding the appellant’s vehicle for a period of two months.
The appellant subsequently filed a number of notices of appeal with numerous grounds but the only ground finally relied upon by him was:
That the learned Stipendiary Magistrate failed to take into account s 4 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) and, in particular, the combined effect of disqualifying the Appellant from holding a driver’s licence and impounding his vehicle, when considering whether the Appellant would suffer severe physical hardship as a result of the impounding order.

Background

On 7 August 2010, whilst driving a motor vehicle, the Appellant was stopped by police and recorded a blood alcohol reading of 0.160grams. That constituted the offence charged with respect to count 1 (“the PCA offence”). The appellant had a prior conviction for a PCA offence as a result of which he was the holder of a probationary licence at the time of the present offending. It was a condition of that licence that he have a zero alcohol level when driving. The appellant’s…

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 Frohling v Police

Details

AGLC: Frohling v Police [2011] SASC 53
Case: [2011] SASC 53
Decision Date: 20 April 2011

CaseChat Overview and Summary

In the case of Frohling v Police, the appellant appealed against a sentence imposed for driving offences, specifically contesting the additional impounding order made under the Impounding Act. The appellant argued that the Magistrate erred by not exercising her discretion to decline the impounding order on the grounds of financial or physical hardship. The appeal was heard in the Supreme Court of South Australia.

The central legal issues before the court involved whether the Magistrate correctly exercised her discretion under section 13 of the Impounding Act and whether she properly considered the relationship between sections 4(2) and 13 of the Act. The appellant contended that the Magistrate's decision should have been influenced by the potential financial and physical hardship the impounding order would cause. However, the court had to determine if the appellant's claims of hardship were sufficient to warrant the exercise of the Magistrate's discretion.

The court held that the appellant, being a repeat offender, needed to demonstrate more than ordinary hardship to persuade the Magistrate to decline the impounding order. The court found no error in the Magistrate's approach, as the discretion under section 13 was not exercised lightly and required significant justification. The appellant's claims of hardship did not meet the required threshold, and thus, the Magistrate's decision was upheld. Consequently, the appeal was dismissed, and the sentence, including the impounding order, was affirmed.

Orders