GODFREY v Police - [2007] SASC 229

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GODFREY v POLICE
[2007] SASC 229
Judgment of The Honourable Justice David
28 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER
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 - driving offences - hindering police - contumacious offending - whether sentence manifestly excessive - whether magistrate should have suspended sentence - appeal dismissed.
Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) s 47b; Summary Offences Act 1953 (SA) s 6(2), referred to.

GODFREY v POLICE
[2007] SASC 229
Magistrates Appeal

DAVID J. The appellant appeals against a sentence imposed upon him by a magistrate in relation to four charges which were brought on two different Complaints.
The first Complaint related to conduct on 3 July 2006, in relation to which he pleaded guilty to driving a motor vehicle on a road whilst there was present in his blood more than the prescribed concentration of alcohol (count 2), driving whilst disqualified from holding or obtaining a licence (count 3) and hindering a member of the police in the execution of his duty (count 4). Count 1 on the Complaint was withdrawn.
The second Complaint concerned a charge of driving while disqualified from holding or obtaining a licence (count 1 on that Complaint but herein referred to as “count 5”). Count 5 was committed on 29 July 2006. The appellant also pleaded guilty to that offence.
In relation to the charge of driving with excess blood alcohol (count 2), the magistrate imposed a fine of $1,500 and disqualified the appellant from holding a driver’s licence for a period of three years. There is no appeal against that penalty.
In relation to the two counts of driving whilst disqualified (counts 3 and 5) and the count of hindering a member of the police (count 4), the magistrate arrived at a penalty of ten weeks imprisonment, unsuspended. The appellant now argues that that sentence was manifestly excessive and, in addition, that it should have been suspended.
Background Facts
At around 9.05 pm on Monday, 3 July 2006, police observed the appellant’s vehicle stationary on the side of Gulfview Road, Christies Beach. The appellant was next to the vehicle. The vehicle’s engine was still warm. Police had passed through the intersection ten minutes previously, and did not see the vehicle. A records check revealed that the appellant was disqualified from holding a licence from 1 April 2004 to 31 March 2007. This conduct gave rise to count 3, driving whilst disqualified from…

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: [2007] SASC 229
Decision Date: 28 June 2007

CaseChat Overview and Summary

Godfrey appealed against the sentence imposed by the magistrate for driving whilst disqualified and hindering a police officer. The court had to determine whether the sentence imposed by the magistrate was manifestly excessive and whether the magistrate should have suspended the sentence. The appeal hinged on the severity of the sentence and the consideration of a suspended sentence under the applicable statutes.

The court considered the appellant’s history of contumacious conduct, including his previous disqualification from driving and his disrespectful behaviour towards the police. The court noted that the appellant's actions demonstrated a pattern of disregard for the law and for the authority of the police. Given the seriousness of the offences and the appellant's history, the court found that the sentence was not manifestly excessive. The court also found that the magistrate was not obliged to suspend the sentence, as there were no exceptional circumstances that warranted such a sentence.

In light of the court's findings, the appeal was dismissed. The sentence of ten weeks imprisonment, unsuspended, was upheld as appropriate given the appellant's conduct and history. The court confirmed that the sentence was neither manifestly excessive nor inappropriate in the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

In relation to the two counts of driving whilst disqualified (counts 3 and 5) and the count of hindering a member of the police (count 4), the magistrate arrived at a penalty of ten weeks imprisonment, unsuspended. The appellant now argues that that sentence was manifestly excessive and, in addition, that it should have been suspended.Background Facts At around 9.05 pm on Monday, 3 July 2006, police observed the appellant’s vehicle stationary on the side of Gulfview Road, Christies Beach. The appellant was next to the vehicle. The vehicle’s engine was still warm. Police had passed through the intersection ten minutes previously, and did not see the vehicle. A records check revealed that the appellant was disqualified from holding a licence from 1 April 2004 to 31 March 2007. This conduct gave rise to count 3, driving whilst disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act 1959 (SA). The appellant submitted to a blood alcohol test which gave a reading of 0.153 grams per 100 milligrams of blood. This conduct gave rise to count 2, driving a motor vehicle on a road whilst there was present in his blood more than the prescribed concentration of alcohol, contrary to s 47b of the Road Traffic Act 1961 (SA). Police interviewed the appellant, taking notes in a notebook. When police asked the appellant to sign these notes, he put them in his mouth, chewed them and spat them onto the floor. He then placed the notes in his pocket and refused to give them back. This conduct gave rise to count 4, the charge of hindering a member of the police in the execution of his duty, contrary to s 6(2) of the Summary Offences Act 1953 (SA). At about 11.00 am on Saturday, 29 July 2006, while on bail for these offences, the appellant was apprehended driving along Railway Terrace, Edwardstown. The appellant was disqualified from holding or obtaining a driver’s licence, and this conduct gives rise to count 5, the offence of driving while disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act. The appellant explained his conduct in relation to the offences on 3 July 2006 by stating that he had worked a split‑shift, had consumed a few alcoholic drinks after work and was driving to a friend’s house to sleep. In relation to the offence on 29 July 2006, the appellant stated that he drove to resolve an ongoing financial dispute with another party that related to a property they shared. The magistrate found that the conduct which was the basis of both charges of driving whilst disqualified was contumacious. There was no argument on appeal about that finding. In relation to counts three and four, namely the charges of driving whilst disqualified and hindering the police, the magistrate imposed a single penalty of four weeks imprisonment. In sentencing the magistrate explained that the starting point was five weeks, which was reduced to four weeks to give the appellant the appropriate discount for his plea of guilty.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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