Hart v Police - [2007] SASC 430

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HART v POLICE
[2007] SASC 430
Judgment of The Honourable Justice Gray
7 December 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - TIME SPENT IN CUSTODY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION
Appeal against sentence – appellant convicted of driving while disqualified – at time of the offending appellant on parole for various offences including driving related offences for which imprisonment of two years and ten months, with non-parole period of nine months had been imposed – appellant pleaded guilty to driving at dangerous speed and manner, failing to comply with request to stop his vehicle, driving with excess blood alcohol – Magistrate sentenced appellant to four months imprisonment for the offence of driving under disqualification – appellant’s parole cancelled – Magistrate ordered pursuant to s 75 of the Correctional Services Act 1982 (SA), appellant was to serve the balance of earlier sentence – total term of imprisonment to be served by the appellant was two years, two months and 29 days with non-parole period of 12 months – whether sentence for driving while disqualified to be cumulative on the unexpired portion of appellant’s existing non-parole period - whether Magistrate erred in approach to sentencing – whether Magistrate erred in not suspending sentence – whether sentence for offence of driving under disqualification manifestly excessive – whether Magistrate should have taken into account appellant’s time in custody – whether Magistrate erred in considering manner of appellant’s driving an aggravating factor – double jeopardy - whether other authorities of assistance in arriving at appropriate sentence – whether Magistrate erred in failing to give regard to factors in s 10 of the Criminal Law (Sentencing) Act 1988 (SA) – whether Magistrate’s reasons inadequate.
Held: Appeal allowed, appellant re-sentenced: Sentence imposed by Magistrate with respect to the offence of driving while disqualified set aside – head sentence of 12 weeks reduced to seven days on account of appellant’s guilty plea, contrition and time already spent in custody – other mitigating features present - circumstances of offending do not require suspension - Magistrate’s consideration of appellant’s manner of driving as an aggravating factor lead to error - Magistrate’s reasons brief but adequate – appropriate sentence to be determined by facts and circumstances of each case – term of imprisonment of seven days to be cumulative on the unexpired portion of appellant’s existing non-parole period of one year, ten months and 29 days – total term of imprisonment of one year, 11 months and five days to have commenced on date of sentencing by Magistrate – good prospects for rehabilitation and unusual circumstances warrant shorter non-parole period of six months.
Motor Vehicles Act 1959 (SA) s 91; Correctional Services Act

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.

Keep reading for free

Create a free CaseChat account to read Hart v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] SASC 430
Decision Date: 7 December 2007

CaseChat Overview and Summary

The appeal in Hart v Police was heard by the South Australian Court of Appeal. The appellant, Jeffrey Robert Hart, was convicted of driving while disqualified and sentenced to four months imprisonment by a magistrate. The appeal centred on the appropriateness of the sentence imposed, the consideration of time spent in custody, and the treatment of the appellant's manner of driving as an aggravating factor. The appellant argued that the sentence was excessive and that the magistrate erred in considering his driving manner as an aggravating factor. Additionally, he contended that the magistrate failed to adequately consider his time in custody and other relevant factors.

The court identified several legal issues, including whether the sentence for driving while disqualified should be cumulative on the unexpired portion of the appellant's existing non-parole period, whether the magistrate erred in their sentencing approach, and whether the sentence was manifestly excessive. The court also examined whether the magistrate adequately considered the appellant's time in custody and other relevant factors, as well as the double jeopardy principle in sentencing. The reasoning of the court focused on the individual circumstances of the case, the inappropriate consideration of the appellant's driving manner, and the need to account for the time already spent in custody.

The court allowed the appeal, set aside the sentence imposed by the magistrate, and re-sentenced the appellant. The re-sentenced term of imprisonment was reduced to seven days, taking into account the appellant's guilty plea, contrition, and time already spent in custody. The court also considered the mitigating factors present and the appellant's prospects for rehabilitation. The total term of imprisonment was fixed at one year, eleven months, and five days, with a non-parole period of six months. This decision acknowledged the unusual circumstances of the case and the appellant's potential for rehabilitation.

The final orders of the court were that the sentence imposed by the magistrate for the offence of driving while disqualified was set aside, and the appellant was re-sentenced to a term of imprisonment of seven days. This term was to be cumulative on the unexpired portion of his existing non-parole period. The total term of imprisonment was set at one year, eleven months, and five days, with a non-parole period of six months. The appellant would be eligible for parole on 12 March 2008.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an appeal against a sentence imposed by a magistrate for the offence of driving while disqualified, contrary to section 91 of the Motor Vehicles Act 1959 (SA).[1][1] Section 91(5) of the Motor Vehicles Act 1959 (SA) provides:A person must not drive a motor vehicle on a road while his or her licence or learner's permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner's permit. Maximum penalty: For a first offence—imprisonment for 6 months. For a subsequent offence—imprisonment for 2 years.Background The facts forming the basis of the offending are not in dispute. On 2 December 2006, shortly after 1.15 am, Jeffrey Robert Hart, the defendant and appellant, was apprehended by police. His partner had asked him to buy cigarettes from a service station. She was unaware that the appellant was disqualified from driving at that time. The appellant did not wish to cause tension in their relationship by refusing her request. Although disqualified from driving until 21 July 2009, he felt compelled to drive, and did so. He had consumed alcohol before driving. The appellant was charged with the offences of driving at a dangerous speed and manner (count 1), failing to comply with a request to stop his vehicle (count 2), driving with excess blood alcohol (count 3), and driving while under disqualification (count 4). The maximum sentence for driving while under disqualification is imprisonment for two years. The appellant pleaded guilty to all counts. For the offence of driving at a speed and in a manner that was dangerous, he was disqualified from holding or obtaining a driver’s licence for a period of two years, commencing at the expiration of the three year disqualification period already imposed on 21 July 2006. For the offences of failing to comply with a request to stop his vehicle and driving with excess blood alcohol, the appellant was fined $500 and disqualified from holding or obtaining a driver’s licence for a further period of six months commencing at the expiration of the licence disqualification period imposed in relation to count 1. For the offence of driving under disqualification, a sentence of imprisonment of four months was imposed. It is this final sentence that is the subject of the appeal before me. The offences were committed while the appellant was on parole. He had been sentenced on 21 July 2006 to a term of imprisonment of two years and 10 months, with a non-parole period of nine months, backdated to commence on 1 January 2006. This sentence was imposed with respect to many offences, including offences of trespass and dishonesty, as well as driving related offences. As a result of the imposition of a term of imprisonment on the charge of driving while under disqualification, the appellant’s parole was cancelled. The Magistrate recorded that, pursuant to section 75 of the Correctional Services Act 1982 (SA), the appellant was to serve the balance of the earlier sentence of imprisonment being a period of one year, ten months and 29 days. The total term of imprisonment to be served by the appellant, under the Magistrate’s sentence, was therefore a period of imprisonment of two years, two months and 29 days. The Magistrate fixed a non-parole period of 12 months with respect to this total period. The term of imprisonment and non-parole period were ordered to commence from the date that the appellant was taken into custody on 13 July 2007.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I consider that in all the circumstances it is appropriate to fix a non-parole period of six months. I accept that this is a relatively short non-parole period, however I consider the unusual circumstances earlier outlined allow this approach. Conclusion This appeal is allowed. The sentence imposed by the Magistrate with respect to the offence of driving while disqualified (count 4) is set aside. I re-sentence the appellant as follows:-The appellant is sentenced in respect of the offence of driving while disqualified (count 4) to a term of imprisonment of seven days;-The term of imprisonment of seven days is to be cumulative on the unexpired portion of his existing non-parole period of one year, 10 months and 29 days;-The total term of imprisonment of one year, 11 months and five days is to be taken to have commenced on 12 September 2007, the date of sentencing by the Magistrate;-A non-parole period of six months is fixed with respect to the total term of imprisonment of one year, 11 months and five days;-The non-parole period is to be taken to have commenced on 12 September 2007, the date of sentencing by the Magistrate. The appellant will be eligible for parole on 12 March 2008.

Ratio Decidendi

Legal Principle Established

The sentence imposed by the Magistrate will need to be set aside, and the appellant re-sentenced in accordance with the statutory requirements. There will be a need to bring into account the time that the appellant has spent in custody, in accordance with the authorities. An Irrelevant Consideration The appellant submitted that the Magistrate took into account an irrelevant consideration when he concluded: “Your driving whilst disqualified is aggravated by the manner in which you drove”. The appellant contended that the speed at, and manner in which he drove was not an aggravating factor. That conduct was the subject of a separate charge.[4] In the present case the appellant had been charged with, pleaded guilty to, and separately sentenced for the offence of driving at a speed and in a manner dangerous to the public. He should not be punished twice for the same conduct.[4] See Barnes v Police [2006] SASC 295 at [18]-[20]; citing Police v Maxwell (1998) 102 A Crim R 374 and Long v Police (1998) 72 SASR 515. The Crown accepted that the Magistrate should not have treated the speed at, and the manner in which the appellant drove as an aggravating factor of the offence of driving while disqualified. The speed and manner of driving, itself the subject of another charge, was not relevant to sentencing for the offence of driving while disqualified.[5][5] Maxwell v Police (1998) 102 A Crim R 374 at 379. It is probable that this incorrect approach to sentencing led the Magistrate to impose a heavier sentence than would otherwise have been appropriate. For this further reason it will be necessary to set aside the sentence imposed on this count and re-sentence the appellant. Three further complaints were advanced on the appeal, and it is convenient to provide my brief reasons for their rejection.Current Sentencing Practice The appellant referred to authorities where lower sentences were imposed for driving while under a disqualification. It was said that these other authorities demonstrated that the sentence imposed in the present case was manifestly excessive. This submission should be rejected. These other authorities are of little assistance, as each turn on their own facts. For this reason, this Court has emphasised that comparing a particular sentence with past cases will generally be of little value and assistance in allowing a court to arrive at an appropriate sentence. In O’Donnell,[6] Hogarth, Zelling and Wells JJ observed:This is the position in practically every case where this type of argument is put forward, that the facts of the cases cited are different, the circumstances in which the offence was committed are different, the offender is different, and the matters which have to be taken into consideration by the Judge are different. It is but rarely that lists of previous sentences, with short notes of the facts appended, are of use to a Court of Criminal Appeal.[6] R v O’Donnell (1974) 7 SASR 114 at 115; cited with approval by Mullighan J in R v Hitchens (1995) 184 LSJS 337.