HARRIS v Police - [2008] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARRIS v POLICE
[2008] SASC 58
Judgment of The Honourable Justice White
5 March 2008
TRAFFIC LAW - OFFENCES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant sentenced to imprisonment for six months (suspended) in respect of one offence of driving while unauthorised in contravention of s 74(2) of the Motor Vehicles Act 1959 - magistrate purported to take other offences of driving while unauthorised into account pursuant to s 18A of the Criminal Law (Sentencing) Act - whether imprisonment an available sentence for the offence for which it was imposed - whether magistrate made inappropriate use of s 18A.
Held: magistrate erred in imposing a term of imprisonment for the particular offence of driving while unauthorised - magistrate erred in application of s 18A - appeal allowed - remitted for re-sentencing.
Motor Vehicles Act 1959 (SA) s 9, s 74, s 75, s 91, s 102; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A; Road Traffic Act 1961 (SA) s 42; Bail Act 1985 s 17; Australian Road Rules r 264, referred to.
Ryszawa v Samuels [1969] SASR 158; Police v Nowak (2000) 76 SASR 551; R v Gilbert [1975] 1 WLR 1012; R v Garrett (1978) 18 SASR 308; R v Colson [1999] SASC 184, applied.
R v Batchelor (1952) 36 CR App R 64, discussed.
Mill v Police [2007] SASC 253; R v J (1992) 59 SASR 145, considered.

HARRIS v POLICE
[2008] SASC 58
Magistrates Appeal

WHITE J: This appeal against sentences imposed by a magistrate has the unusual feature that it was instituted nearly two years after the sentences were imposed.
It was submitted nevertheless that an extension of time within which to appeal should be granted, and the appeal allowed, because the sentences imposed were irregular, including the unauthorised imposition of a (suspended) sentence of imprisonment. The respondent agreed that the magistrate had erred, did not oppose an extension of time for the commencement of the appeal, and agreed that the appeal should be allowed so that the appellant may be re-sentenced.
Circumstances Giving Rise to the Appeal
The appellant has driven a vehicle on a road while unauthorised, in contravention of s 74(2) of the Motor Vehicles Act 1959 (SA) (MVA), on several occasions. On the same occasions, the appellant committed a number of other traffic offences as well. Details of the offences and the sentences imposed by the magistrate are set out in the table which is Appendix A to these reasons. It can be seen that contraventions of s 74(2) of the MVA (as well as other offences) were committed on 2 September 2004, 17-18 November 2004, 25 March 2005 and 26 September 2005.
In respect of all the offences committed on 2 September 2004, the magistrate invoked s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA)…

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 HARRIS v Police

Details

AGLC: HARRIS v Police [2008] SASC 58
Case: [2008] SASC 58
Decision Date: 5 March 2008

CaseChat Overview and Summary

The appellant, Harris, was convicted of driving while unauthorised and sentenced to six months' imprisonment (suspended) under section 74(2) of the Motor Vehicles Act 1959. Harris appealed against the sentence, arguing that the magistrate incorrectly imposed imprisonment for the offence and erred in applying section 18A of the Criminal Law (Sentencing) Act. Harris contended that imprisonment was not a permissible sentence for the offence of driving while unauthorised and that the magistrate had incorrectly considered other offences in the sentencing process.

The court needed to determine whether imprisonment was a valid sentence for the offence of driving while unauthorised under section 74(2) of the Motor Vehicles Act 1959. Additionally, the court had to assess whether the magistrate's use of section 18A of the Criminal Law (Sentencing) Act was appropriate. The court needed to establish if the magistrate's consideration of other offences in sentencing Harris constituted an error in law.

The court found that the magistrate erred in imposing a term of imprisonment for the offence of driving while unauthorised, as imprisonment was not a permissible sentence for that particular offence. Furthermore, the magistrate made an incorrect application of section 18A of the Criminal Law (Sentencing) Act. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates Court for re-sentencing by a different magistrate. The court noted the potential for double jeopardy in the re-sentencing process.

The appeal was allowed, and the sentences imposed for the offences were set aside. The matters were remitted to the Magistrates Court for re-sentencing by a different magistrate, with the re-sentencing to be carried out by a magistrate mindful of the potential for double jeopardy. The time for the commencement of the appeal was extended to 24 December 2007.

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

In those circumstances, and despite my reservations, I am satisfied that a remittal of the matter to the Magistrates Court is appropriate. The appellant should be re-sentenced by a different magistrate. The magistrate carrying out the re-sentencing will have to be alert to the potential for double jeopardy in the re‑sentencing.Conclusion For the reasons given above, I extend the time for the commencement of the appeal to 24 December 2007 and allow the appeal. The sentences imposed for the offences committed on 17 and 18 November 2004 (Magistrates Court File No MCPAR-05-277), the sentences imposed for all the offences committed on 25 March 2005 (File No MCPAR-05-4632), and the sentence imposed for the offence of driving while unauthorised on 26 September 2005 (File No MCPAR-05-9020 – Count 3) are set aside. Those matters are remitted to the Magistrates Court for re-sentence. That re‑sentencing should be carried out by a different magistrate.

Ratio Decidendi

Legal Principle Established

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