HARVEY v Police - [2008] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARVEY v POLICE
[2008] SASC 41
Judgment of The Honourable Justice White
22 February 2008
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - POINT NOT RAISED IN COURT BELOW
Appellant sentenced to imprisonment for three months in respect of two offences of driving whilst disqualified and one offence of breach of bail - magistrate declined to suspend the sentence - submission that the magistrate erred in finding the second offence of driving whilst disqualified was contumacious - submission that the circumstances leading to the appellant's belief that he was entitled to drive had not been properly put to, and considered by, the magistrate.
Held: appellant's claim that his driving constituting the second offence was not contumacious had not been addressed on a proper basis - appellant's claim had not been properly put to the magistrate - sentencing process miscarried - appeal allowed - sentence set aside - matter remitted to Magistrates Court for re-sentencing.
Motor Vehicles Act 1959 (SA), s 9(1), s 81B(2), s 81B(5); s 91, s 98BC, s 98BE, s 102; Bail Act 1985 (SA), s 17; Criminal Law (Sentencing) Act 1988 (SA), s 18A, referred to.
R v Baltensperger [2006] SASC 246; (2006) 96 SASR 34, considered.

HARVEY v POLICE
[2008] SASC 41
Magistrates Appeal

WHITE J: This is an appeal against a sentence imposed by a magistrate. The appellant complains of the decision of the magistrate not to suspend a sentence of imprisonment of three months imposed for two offences of driving whilst disqualified and one offence of breach of bail.
In his initial submissions, the appellant contended, amongst other things, that he had been denied procedural fairness in the sentencing process before the magistrate. The appellant submitted that the magistrate had rejected a submission that the second of the two offences of driving while disqualified was not contumacious without giving him an opportunity to present evidence on the topic. However, after this was debated in the submissions on appeal, and after an adjournment, the appellant did not pursue that submission. Instead, he submitted that the sentencing process had miscarried with the result that the magistrate had reached his decision concerning suspension of the sentence on a misapprehension. That misapprehension had resulted from the way in which the submissions on the appellant’s behalf at first instance were put to the magistrate.
I am satisfied that the magistrate was, through no fault of his own or of the prosecutor, under a misapprehension about the basis of the appellant’s claim that the second offence was not contumacious. The sentencing process did miscarry. It is appropriate that the appeal be allowed and the matter remitted to the Magistrates Court for fresh consideration.
The Sentence of the Magistrate
The appellant pleaded guilty to two offences…

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.

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Details

Case: [2008] SASC 41
Decision Date: 22 February 2008

CaseChat Overview and Summary

The case of Harvey v Police involves the appellant who was sentenced to three months in prison for two counts of driving while disqualified and one count of breaching bail conditions. The magistrate refused to suspend the sentence. The appellant argues that the magistrate was wrong in finding the second offence of driving while disqualified to be contumacious. The appellant contends that the circumstances leading to his belief that he was entitled to drive had not been properly put to and considered by the magistrate.

The legal issues that the court had to decide were whether the appellant's claim that his driving was not contumacious had been properly put to and considered by the magistrate, and whether the sentencing process miscarried. The court held that the appellant's claim had not been properly put to the magistrate, and thus the sentencing process miscarried. The appeal was allowed, and the sentence was set aside. The matter was remitted to the Magistrates Court for re-sentencing.

The court reasoned that the appellant's claim that his driving was not contumacious had not been addressed on a proper basis, and the appellant's claim had not been properly put to the magistrate. The court opined that the matter should be remitted to the Magistrates Court for a fresh consideration, as there were issues going to the veracity of the appellant’s claimed state of mind on 29 May 2007, including what he did upon receipt of the letter of 16 May 2007, his understanding of the content of that letter, his understanding of the original period of disqualification, and his understanding of the bail condition that he not drive a motor vehicle. The court noted that the prosecution may also wish to adduce evidence of an admission which the appellant reportedly made at the time that he was apprehended on 29 May 2007. The court held that these matters were better addressed in the Magistrates Court, and the Magistrates Court could be expected to exercise the restraint customarily applied in this context.

In conclusion, the appeal was allowed, and the sentence of three months imprisonment imposed by the magistrate for the two offences of driving whilst disqualified and the offence of breach of bail condition was set aside. The matters were remitted for re-sentencing in the Magistrates Court.

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

At one stage, both counsel submitted that this Court should engage in that re-sentencing. I do not propose to adopt that course. Instead, in my opinion, the matter should be remitted to the Magistrates Court for a fresh consideration. It seems likely that the prosecution will wish to contest the appellant’s submission about the absence of contumacy in his driving on 29 May 2007. There are a number of issues going to the veracity of the appellant’s claimed state of mind on 29 May 2007, including what he did upon receipt of the letter of 16 May 2007, his understanding of the content of that letter, his understanding of the original period of disqualification, and his understanding of the bail condition that he not drive a motor vehicle. The prosecution may also wish to adduce evidence of an admission which the appellant reportedly made at the time that he was apprehended on 29 May 2007. This may involve evidence being led from the apprehending police officers. In my opinion, these matters are better addressed in the Magistrates Court. This course of action should not expose the appellant to the risk of a higher sentence being imposed on re-sentence. The Magistrates Court can be expected to exercise the restraint customarily applied in this context – see R v Baltensperger.[1][1] [2006] SASC 246; (2006) 96 SASR 34.Conclusion For the reasons outlined above, I allow the appeal. I set aside the sentence of three months imprisonment imposed by the magistrate for the two offences of driving whilst disqualified and the offence of breach of bail condition. I remit those matters for re-sentencing in the Magistrates Court.

Ratio Decidendi

Legal Principle Established

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