Harding v Police - [2011] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARDING v POLICE
[2011] SASC 114
Judgment of The Honourable Justice Gray
26 July 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal by the defendant against sentence - defendant pleaded guilty to the offence of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA) - the Magistrate when sentencing the defendant imposed the mandatory minimum licence disqualification of six months - a sentence of six weeks imprisonment imposed - imprisonment suspended upon entry into a bond for 12 months in the sum of $500 - whether the Magistrate acted under a misapprehension of law by considering that he had no alternative but to impose a sentence of imprisonment - whether to proceed under section 39 of the Criminal Law (Sentencing) Act 1988 (SA) upon the defendant entering into a good behaviour bond and to nonetheless impose a licence disqualification, conflicts with the phrase "without imposing a penalty" in section 39.
Held: Appeal allowed - the Magistrate acted under a misapprehension of law, misapprehending the scope and reach of section 39 of the Criminal Law (Sentencing) Act - where there are two penalties imposed, one which can be reduced, mitigated or substituted and one which cannot, “otherwise” is to be read between “without” and “imposing” in the phrase “without imposing a penalty” (“otherwise” refers to the penalty that cannot be reduced, mitigated or substituted) - defendant resentenced - order of imprisonment imposed by the Magistrate set aside on the defendant's entry into a 12 month good behaviour bond - other orders of the Magistrate to remain in place including the defendant's disqualification from holding or obtaining a driver's licence for a period of six months.
Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 16, s 18, s 37 and s 39, referred to.
Janz v Woolven (1990) 55 SASR 239; Nattrass v Police [2008] SASC 267; Police v Wait [2008] SASC 153; Ellis v Police (2008) 258 LSJS 262; Miles v Police (2009) 104 SASR 127; Hyde v Police (2006) 246 LSJS 275; Cresswell v Bates (1989) 9 MVR 176, considered.

HARDING v POLICE
[2011] SASC 114
Magistrates Appeal
GRAY J

This is an appeal against a sentence imposed by a Magistrate.
Trent Harding, the defendant and appellant, was charged with the offence of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA). The offence was alleged to have occurred on 6 April 2010 at Tungkillo. The circumstance of aggravation was particularised as the causing of serious harm to a passenger in the defendant’s motor vehicle. On 20 April 2011, the defendant pleaded guilty to the charge.
The defendant lost control of his motor vehicle at about 10:00 am while traversing a gentle bend on a bitumen road. His vehicle left the…

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 Harding v Police

Details

AGLC: Harding v Police [2011] SASC 114
Case: [2011] SASC 114
Decision Date: 26 July 2011

CaseChat Overview and Summary

The case of Harding v Police involved an appeal against the penalty imposed by a Magistrate on the defendant, who was convicted of a criminal offence. The primary dispute centred around the severity and appropriateness of the penalty imposed by the Magistrate, specifically the suspension of the defendant's driver's licence for a period of six months. The appeal was heard and determined by the higher court, which was tasked with reviewing the penalty's fairness and compliance with legal standards.

The central legal issues before the court were whether the penalty imposed by the Magistrate was appropriate and proportionate to the offence committed, and whether the suspension of the defendant's driver's licence for six months was justified. The court also needed to consider whether the alternative penalty of a bond with good behaviour conditions was more suitable and whether the existing penalties related to court fees, prosecution costs, and the victims of crime levy should remain unchanged.

In delivering its decision, the court considered the nature of the offence, the defendant's criminal history, and the principles of sentencing under the Criminal Law (Sentencing) Act 1988 (SA). The court concluded that the original penalty was overly harsh and not proportionate to the offence. It substituted the original penalty with a bond for a period of 12 months on the condition that the defendant be of good behaviour. The court also upheld the suspension of the defendant's driver's licence for six months, as it believed this aspect of the penalty was justified and necessary. The other ancillary orders, including those regarding court fees, prosecution costs, and the victims of crime levy, were left unchanged.

The court's final orders included allowing the appeal, setting aside the original penalty imposed by the Magistrate, and substituting it with the aforementioned bond and driver's licence suspension. The other orders made by the Magistrate were to remain in place.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The other orders of the Magistrate are to remain in place. The defendant remains suspended from holding or obtaining a driver’s licence for a period of six months with effect from 12:01 am on 27 April 2011. Conclusion I order:-That the appeal is allowed.-That the penalty imposed by the Magistrate on 20 April 2011 is set aside and, that the following penalty is substituted:1. That a conviction is recorded.2.That pursuant to section 39 of the Criminal Law (Sentencing) Act 1988 (SA) the defendant enter into a bond for a period of 12 months on the condition that he be of good behaviour.3.That the defendant is disqualified from holding or obtaining a driver’s licence for a period of six months commencing at 12.01 am on 27 April 2011.-That otherwise the orders of the Magistrate with respect to the Court fee, prosecution costs and the victims of crime levy remain.

Ratio Decidendi

Legal Principle Established

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