G, R v Police - [2012] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
G, R v POLICE
[2012] SASC 195
Judgment of The Honourable Justice Gray
26 October 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - REMISSION FOR REHEARING
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - OTHER CASES
Appeal from orders made by a Magistrate in the Youth Court of South Australia following pleas of guilty to offences against the Motor Vehicles Act 1959 (SA) and the Road Traffic Act 1961 (SA) - on sentencing, the Magistrate declined to make an order pursuant to section 17 of the Young Offenders Act 1993 (SA) diverting the proceeding to a family conference - the Magistrate recorded convictions on both counts, imposed a fine of $100.00, ordered the defendant to pay prosecution costs of $100.00 and a victims of crime levy, and disqualified the defendant from obtaining or holding a driver's licence for a period of 12 months - whether the Magistrate had proceeded under a misapprehension of fact about the circumstances of the offending - whether the Magistrate erred in exercising her discretion not to act under section 17 of the Young Offenders Act to defer the matter to a family conference.
Held: Appeal allowed - the Magistrate acted under two material misapprehensions of fact - the Magistrate failed to properly consider the powers available at a family conference, in particular, the use of an undertaking to ensure that the defendant did not drive for a specified period - the Magistrate erred in the exercise of her discretion by failing to recognise or give weight to various considerations of the Young Offenders Act - convictions and further orders of the Magistrate set aside - the subject matter of the charges referred to be dealt with by a family conference - the defendant’s guilt is established by his pleas of guilty in relation to both counts - proceeding remitted to the Youth Court to enable the family conference to take place.
Motor Vehicles Act 1959 (SA) s 74(2); Road Traffic Act 1961 (SA) s 46; Young Offenders Act 1993 (SA) s 3, s 4, s 6, s 7, s 8, s 12 and s 17; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Police [2002] SASC 403; Police v G, PA [2007] SASC 78; Yardley v Betts (1979) 22 SASR 108; Vartzokas v Zanker (1989) 51 SASR 277, considered.

G, R v POLICE
[2012] SASC 195
Magistrates Appeal
GRAY J.

This is an appeal from orders made by a Magistrate in the Youth Court of South Australia following pleas of guilty to offences against the Motor Vehicles Act 1959 (SA) and the Road Traffic Act 1961 (SA).
The defendant, a youth aged 15 years, was charged that on 1 December 2011 he drove a motor vehicle on…

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 G, R v Police

Details

AGLC: G, R v Police [2012] SASC 195
Case: [2012] SASC 195
Decision Date: 26 October 2012

CaseChat Overview and Summary

In the appeal of G, R v Police, the Supreme Court of South Australia considered an appeal from a decision made by a Magistrate in the Youth Court following the defendant's pleas of guilty to charges under the Motor Vehicles Act 1959 (SA) and the Road Traffic Act 1961 (SA). The Magistrate imposed a fine, ordered the payment of prosecution costs and a victims of crime levy, and disqualified the defendant from holding a driver's licence for a period of 12 months. The appeal focused on whether the Magistrate misapprehended the facts and whether she erred in not deferring the matter to a family conference under section 17 of the Young Offenders Act 1993 (SA).

The court had to determine whether the Magistrate's decision was influenced by material factual errors and whether she appropriately exercised her discretion in not referring the case to a family conference. The appeal contended that the Magistrate did not fully consider the powers available at a family conference, particularly the ability to use an undertaking to prevent the defendant from driving for a specified period. The court also examined whether the Magistrate recognised or appropriately weighed the various considerations under the Young Offenders Act when exercising her discretion.

The Supreme Court found that the Magistrate had indeed acted under material misapprehensions of fact and erred in her discretion by not considering the potential of a family conference. The court highlighted that the defendant's willingness to offer undertakings indicated contrition and advanced rehabilitation. Therefore, the appeal was allowed, the convictions and orders of the Magistrate were set aside, and the matter was referred to a family conference as per section 17(2) of the Young Offenders Act. The proceeding was remitted to the Youth Court to facilitate the family conference.

The final orders of the court established that the convictions and further orders made by the Magistrate were nullified. The subject matter of the charges was referred for handling by a family conference, acknowledging the defendant's established guilt through his pleas of guilty. The case was remitted back to the Youth Court to enable the family conference to occur, allowing for appropriate consideration of the defendant's circumstances and potential undertakings.

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

I consider that the defendant’s preparedness to offer these undertakings is a clear indication of his contrition and remorse and that his rehabilitation is well advanced. Whether the family conference requires undertakings and, if so, on what terms, is a matter for that conference. Conclusion This appeal is allowed. The convictions recorded by the Magistrate are set aside. The further orders of the Magistrate are set aside. Pursuant to section 17(2) of the Young Offenders Act, I refer the subject matter of the charges to be dealt with by a family conference. In so doing I note that the defendant’s guilt has been established by his pleas of guilty in relation to both counts. The proceeding is remitted to the Youth Court to enable the family conference to take place.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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