G, JJ v Police - [2012] SASCFC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
G, JJ v POLICE
[2012] SASCFC 139
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
20 December 2012
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - NON-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
The defendant and appellant pleaded guilty in the Youth Court to three counts of aggravated driving without due care, contrary to section 45 of the Road Traffic Act 1961 (SA) - the one road accident caused injury to three people - the defendant received convictions for the three counts, was released on a six month good behaviour bond and his driver's licence was disqualified for two years - whether the circumstances of the accident gave rise to the one offence of aggravated careless driving - whether the charges the subject of the three counts were duplicitous - whether the defendant should have been sentenced by way of family conference pursuant to section 17 of the Young Offenders Act 1993 (SA).
Held per Gray J (Peek and Nicholson JJ concurring): Appeal allowed - the circumstances gave rise to the one offence of aggravated careless driving - the charges the subject of three counts were duplicitous - the Youth Court Judge sentenced the defendant on the basis of a material misunderstanding of the law that the defendant had committed three offences; not one - matter not appropriate to be referred to a family conference - convictions recorded by the Youth Court Judge and the sentence imposed set aside - no conviction recorded - a sentence of community service of 120 hours imposed - defendant disqualified from holding or obtaining a driver's licence for a period of 18 months - the order for disqualification backdated to commence on 8 August 2012 - no order for costs.
Road Traffic Act 1961 (SA) s 45; Acts Interpretation Act 1915 (SA) s 26; Young Offenders Act 1993 (SA) s 3, s 4, s 6, s 7, s 12 and s 17; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
R v Police (2002) 224 LSJS 210; Police v G, PA (2007) 97 SASR 6; Yardley v Betts (1979) 22 SASR 108; Vartzokas v Zanker (1989) 51 SASR 277, considered.

G, JJ v POLICE
[2012] SASCFC 139
Full Court: Gray, Peek, Nicholson JJ
GRAY J.

This is an appeal against a sentence imposed by a Youth Court Judge.
The Judge, following pleas of guilty to three counts of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA), convicted the defendant and appellant. The defendant was released on a six month good behaviour bond. A driver’s licence disqualification for two years was imposed.
The defendant, a male youth aged…

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

Case: [2012] SASCFC 139
Decision Date: 20 December 2012

CaseChat Overview and Summary

The appellant, JJ, pleaded guilty in the Youth Court to three counts of aggravated driving without due care, contrary to section 45 of the Road Traffic Act 1961 (SA), which arose from a single road accident that caused injury to three people. The Youth Court convicted JJ on all three counts, released him on a six-month good behaviour bond, and disqualified him from holding a driver's licence for two years. JJ appealed this decision to the Full Court of the Supreme Court of South Australia.

The central legal issues before the Full Court were whether the circumstances of the accident gave rise to a single offence of aggravated careless driving, whether the charges as laid were duplicitous, and whether JJ should have been sentenced by way of a family conference under the Young Offenders Act 1993 (SA). The Court was required to determine the appropriate sentencing disposition for a young offender in these circumstances.

Gray J, with whom Peek and Nicholson JJ concurred, held that the circumstances of the accident constituted only one offence of aggravated careless driving and that the three counts were duplicitous. The Court found that the Youth Court Judge had sentenced JJ on the basis of a material misunderstanding that he had committed three separate offences. While the Court agreed that a family conference was not appropriate in this instance, it set aside the convictions and the sentence imposed by the Youth Court. Instead, no conviction was recorded, a sentence of 120 hours of community service was imposed, and JJ was disqualified from holding or obtaining a driver's licence for 18 months, with the disqualification backdated to commence on 8 August 2012. No order for costs was made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J NICHOLSON JJ

I consider that the defendant should also be disqualified from driving. As mentioned above, he has not driven since the time of the collision on 26 January 2012. This was a voluntary act on his part. On 8 August 2012, he was disqualified from diving for a period of two years by the Youth Court Judge. As a consequence, at the present time he has not driven a motor vehicle for almost 11 months. Having regard to the period during which he voluntarily did not drive, I would disqualify him from holding or obtaining a driver’s licence for a period of 18 months. I would backdate the order for disqualification to 8 August 2012.Conclusion I would set aside the convictions recorded by the Youth Court Judge and the sentence imposed. In respect of the offence of aggravated driving without due care, I would proceed pursuant to section 16 of the Sentencing Act and exercise my discretion not to record a conviction. I would impose a sentence of community service of 120 hours to be performed within 18 months and I would disqualify the defendant from holding or obtaining a driver’s licence for a period of 18 months. I would backdate the order for disqualification to commence on 8 August 2012. I would make no order for costs of the appeal. PEEK and We have had the advantage of reading the judgment of Gray J in draft form and respectfully adopt his Honour’s recitation of the facts and the history of the Court proceedings in this matter. We generally agree with his Honour’s approach to the special regime under the Young Offenders Act 1993. With some considerable hesitation, we agree that good reason exists for not recording a conviction. We agree that the defendant should be sentenced to a period of 120 hours of community service and that this community service should, if possible, be performed in circumstances which will reinforce the defendant’s perception of the seriousness of the consequences that befall victims of motor vehicle collisions. We agree that the defendant should be disqualified from holding or obtaining a drivers licence for a period of 18 months, such period to commence on 8 August 2012. Having regard to the matters referred to by Gray J, this equates to an effective period of abstention from driving for a little more than 24 months which we consider to be the minimum appropriate period in the circumstances. We agree that there should be no order as to costs of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, NICHOLSON JJ

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