SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARRIS v POLICE
[2009] SASC 163
Judgment of The Honourable Justice Kelly
6 June 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS
Appeal against sentence - appellant convicted on plea of guilty to aggravated operating a vessel without due care - magistrate recorded a conviction and appellant sentenced to twenty one days imprisonment, suspended - whether sentence manifestly excessive.
Held: appeal allowed - while the offence of aggravated careless operation of a vessel causing death generally calls for a sentence of imprisonment, the court has a discretion in an appropriate case to impose a non-custodial penalty. Offending at lower end of the scale for an aggravated offence, appellant's culpability mitigated by environmental factors present on night of the offence - appropriate case for alternative penalty - appellant fined $5000.
Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18; Harbours and Navigation Act 1993 (SA) s 69; Road Traffic Act 1961 (SA) s 45, referred to.
Nattrass v Police [2008] SASC 267; Thiele v Police [2009] SASC 159, discussed.
HARRIS v POLICE
[2009] SASC 163Magistrates Appeal
KELLY J:
Introduction
The appellant was convicted on his plea of guilty to one count of aggravated careless operation of a vessel contrary to Section 69 of the Harbours and Navigation Act 1993 (SA). The offence was aggravated because the appellant’s operation of the vessel caused the death of a seven month old baby.
The maximum penalty prescribed for this offence is twelve months imprisonment. The magistrate sentenced the appellant to twenty one days imprisonment which she suspended upon the appellant agreeing to enter into a bond to be of good behaviour for six months.
The appellant appeals on the ground that the sentence of imprisonment is manifestly excessive.
Background
The offence occurred on the evening of Saturday, 2 June 2007 in the waters off Hindmarsh Island at Goolwa. On board the boat were the appellant, his wife, his two friends and their seven month old baby.
Earlier in the afternoon the two friends had requested the appellant to take them out on his boat, a Bayline Capri 195 bowrider fibreglass motorboat. They motored about in the marina for a short period of time and then drove across to the other side of the river, where they disembarked and spent about 30 minutes at a café on the Goolwa side of the river. After re-embarking they travelled under the Hindmarsh Island Bridge before deciding to return home.
At about this time the weather began to rapidly change. It became very windy and dark due to complete cloud cover and poor lighting in the area. Visibility was consequently poor. At that time the appellant made a decision to return immediately to his house.
He proceeded back to the marina intending to enter via the entrance to the marina between Arcadia Avenue and Excelsior Parade. The appellant was familiar with this approach…
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CaseChat Overview and Summary
The legal issue before the court was whether the sentence imposed by the magistrate was manifestly excessive. The court considered whether the sentence was appropriate given the circumstances of the case, including the appellant's culpability and the environmental factors present at the time of the offence. The court also considered whether the sentence was disproportionate to the offence and whether there were any mitigating factors that should be taken into account.
The court found that while the offence of aggravated careless operation of a vessel causing death generally calls for a sentence of imprisonment, the court has a discretion in an appropriate case to impose a non-custodial penalty. The court found that the offending was at the lower end of the scale for an aggravated offence and that the appellant's culpability was mitigated by the environmental factors present on the night of the offence. The court concluded that it was an appropriate case for an alternative penalty and imposed a fine of $5000 on the appellant. The appeal was allowed, and the sentence was set aside.
The court ordered that the appellant be fined $5000 in lieu of the suspended imprisonment sentence. The court found that the fine was an appropriate penalty given the circumstances of the case, and that it reflected the seriousness of the offence while also taking into account the mitigating factors present. The court emphasised the importance of considering the individual circumstances of each case when imposing a sentence, and the need for a balanced approach that takes into account both the seriousness of the offence and the culpability of the offender.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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