GRAY v Police - [2006] SASC 12

Supreme Court of South Australia
(Magistrates Appeals: Civil)
GRAY v POLICE
Judgment of The Honourable Justice Besanko (ex tempore)
18 January 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence – on 17 November 2005, appellant convicted of various driving and dishonesty offences and sentenced by magistrate to 28 months’ imprisonment and non-parole period of 15 months, suspended upon appellant entering into bond – on 30 November 2005, appellant convicted of further driving offences and sentenced by different magistrate – sentence of 17 November 2005 not known to magistrate imposing sentence on 30 November 2005 – appellant sentenced on 30 November 2005 to, inter alia, six months’ imprisonment for offence of driving while disqualified – appeal against that sentence only.
Held, allowing appeal and setting aside sentence of six months’ imprisonment – respondent conceded that earlier sentence relevant to sentencing discretion and should be taken into account in fixing penalty – sentencing of appellant for offence of driving while disqualified remitted to magistrate who imposed sentence on 17 November 2005.

GRAY v POLICE
[2006] SASC 12
Magistrates Appeal

BESANKO J (Ex tempore): This is an appeal against sentence.
On 30 November 2005, the appellant was sentenced in the Elizabeth Magistrates Court to six months’ imprisonment for the offence of driving while disqualified from holding or obtaining a licence. The appellant was also convicted of the offence of driving an unregistered vehicle, for which he received no further penalty, and the offence of driving an uninsured vehicle, for which his driver’s licence was disqualified for a period of 12 months. All three offences occurred on 13 October 2004.
The appellant appeals against the sentence of six months’ imprisonment for the offence of driving while disqualified from holding or obtaining a licence.
The respondent concedes that there was an error in the exercise of the sentencing discretion by the magistrate in that there was a sentence imposed on 17 November 2005 which was not known to the magistrate and which was relevant to the sentence to be imposed in relation to the offences before the court on 30 November 2005.
On 17 November 2005, the appellant was convicted in the Magistrates Court of six offences of driving while disqualified, various other driving offences and several dishonesty offences. A different magistrate to the magistrate who passed sentence on 30 November 2005 sentenced the appellant in relation to those offences, and he imposed a sentence of 28 months’ imprisonment with a non-parole period of 15 months. The sentence of imprisonment was suspended upon the appellant entering into a bond subject to conditions.
The offences the subject of the sentence imposed on 17 November 2005 included driving while disqualified offences that both pre-dated and post-dated the offences the subject of the sentence imposed on 30 November 2005.
At the time of sentencing on 30 November 2005, the magistrate was not aware of the earlier sentence, or that…

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

AGLC: GRAY v Police [2006] SASC 12
Case: [2006] SASC 12
Decision Date: 18 January 2006

CaseChat Overview and Summary

The appeal heard by the court involved a conviction for various driving and dishonesty offences, with the appellant sentenced to 28 months’ imprisonment, suspended upon entering into a bond. Subsequently, the appellant was convicted of additional driving offences and sentenced by a different magistrate. The sentence from the earlier conviction was not known to the magistrate who imposed the second sentence. The appellant was sentenced to six months’ imprisonment for the offence of driving while disqualified, and this sentence was the subject of the appeal.

The primary legal issue was whether the magistrate who imposed the second sentence should have taken into account the earlier sentence when determining the penalty for the driving while disqualified offence. The respondent conceded that the earlier sentence was relevant to the sentencing discretion and should have been considered. This concession led to the conclusion that the appeal should be allowed, and the sentence of six months’ imprisonment should be set aside.

The court held that the sentence of six months’ imprisonment should be remitted to the magistrate who imposed the sentence on the first conviction date. The reasoning was that the earlier sentence was a relevant factor in the sentencing process, and its omission by the second magistrate constituted an error. As a result, the appeal was allowed, and the sentence was set aside. The court's decision ensured that the sentencing process would be reconsidered with proper regard to all relevant prior sentences.

Orders