GREEN v Police - [2005] SASC 454

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GREEN v POLICE
Judgment of The Honourable Justice Perry
5 December 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against sentence - appellant pleaded guilty to driving while disqualified - sentenced to imprisonment for 6 weeks, suspended upon his entry into a 1 year good behaviour bond - whether offending contumacious - whether consumption of alcohol relevant to formation of intent to delilberately drive in total disregard of the disqualification - held that driving contumacious and that in any event, there were no grounds made out to justify interference with the penalty.
Motor Vehicles Act 1959 s 91, referred to.
Police v Cadd and Ors (1997) 69 SASR 150; Bates v Police (1977) 70 SASR 66; Johns v Police (Unreported) 24 June 1998, judgment No S6729; R v Sheehan (1999) 106 A Crim R 38; White v Police (2000) 76 SASR 430, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
The appellant's sentence of 6 weeks imprisonment imposed in the Magistrates Court following his conviction on a charge of driving whilst disqualified was suspended upon his entry into a good behaviour bond which included a condition that the appellant "undertake such psychiatric or psychological treatment as directed" - held that such a condition could not be imposed in the absence of evidence which satisfied the court that such treatment had been recommended for the appellant by a legally qualified medical practitioner and was available to him - such evidence was not before the sentencing court - appeal allowed and bond varied by omitting the condition.
Criminal Law (Sentencing) Act 1988 s 41 and s 42, referred to.

GREEN v POLICE
[2005] SASC 454
Magistrates Appeal: Criminal

PERRY J. This is an appeal against the penalty imposed upon the appellant following his plea of guilty in the Magistrates Court sitting at Adelaide to two traffic charges.
Both charges relate to a passage of driving in the early morning of Sunday 11 April 2004.
The first count alleged that on that date at Wallaroo, the appellant drove a vehicle on Charles Terrace while there was present in his blood the prescribed concentration of alcohol as defined in s 47a of the Road Traffic Act 1961. The concentration alleged was .129 grams in 100 millilitres of blood.
The second count alleged that on the same occasion he drove while disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act 1959.
On the excess blood alcohol count the sentencing magistrate imposed a fine of $1,100, together with court fees and costs which brought up a total of $1,281.20.
As well, the magistrate disqualified the appellant from holding or obtaining a driver’s licence for three years, commencing from the date upon which he was sentenced.
On the charge of driving whilst disqualified, the magistrate imposed…

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 GREEN v Police

Details

AGLC: GREEN v Police [2005] SASC 454
Case: [2005] SASC 454
Decision Date: 5 December 2005

CaseChat Overview and Summary

The case before the court was an appeal by the appellant, Mr Green, against his sentence for a driving offence. The appellant had pleaded guilty to driving while disqualified and was sentenced to imprisonment for 6 weeks, suspended upon his entry into a 1 year good behaviour bond. The appellant challenged the sentence, arguing that the offending was not contumacious and that the consumption of alcohol was relevant to the formation of his intent to deliberately drive in total disregard of the disqualification. The court had to determine whether the offending was contumacious and whether there were any grounds to justify interference with the penalty.

The court considered the nature of the offending and found it to be contumacious. It noted that the appellant had driven while disqualified, which was a deliberate act of disregard for the law. The court also considered whether the consumption of alcohol was relevant to the formation of the appellant's intent. However, it found that this was not a factor that could justify interference with the penalty. The court held that the appellant's actions were deliberate and that the consumption of alcohol did not mitigate the seriousness of the offending.

The court also considered the conditions of the good behaviour bond. It noted that condition 3 of the bond required the appellant to undertake programs and projects relating to drug and alcohol abuse and anger management. The court found that this was not a condition requiring the appellant to undergo specified medical or psychiatric treatment. It concluded that the appeal should be allowed for the limited purpose of varying the conditions of the bond to exclude condition 4.

The court dismissed the appeal in all other respects and held that the sentence was appropriate. The court found that there were no grounds to justify interference with the penalty and that the sentence was proportionate to the seriousness of the offending. The court concluded that the appeal should be dismissed, except for the limited purpose of varying the conditions of the good behaviour bond.

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

PERRY J

On the other hand, condition 3 of the bond simply obliged the appellant to undertake “programs and projects as directed” relating to drug and alcohol abuse and anger management. I do not think that that is a condition requiring the appellant to undergo “specified medical or psychiatric treatment”.Conclusion I would allow the appeal for the limited purpose of varying the conditions of the bond to exclude condition 4. The appeal should otherwise be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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