HILL v Police - [2009] SASC 308

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HILL v POLICE
[2009] SASC 308
Judgment of The Honourable Justice White
1 October 2009
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - FAILURE TO STOP, RENDER ASSISTANCE, GIVE INFORMATION OR REPORT TO POLICE AFTER ACCIDENT
Appellant consumed a quantity of alcohol and drove a car with three other occupants - car rolled, injuring all four occupants - on the approach of the ambulance and/or police appellant fled from scene of accident - emergency services personnel conducted search for appellant - appellant surrendered to a police station the next day - appellant charged with and pleaded guilty to an offence against s 43(1) of the Road Traffic Act 1961 (SA) - Magistrate sentenced appellant to imprisonment for nine months, five months of that sentence to be suspended upon appellant entering into bond to be of good behaviour - appeal against sentence of imprisonment imposed by Magistrate.
Held: s 43(1) creates one offence which can be committed in a number of ways - appellant breached s 43(1) only in his failure to report to the police - appellant's conduct reprehensible, as it was motivated by a desire to avoid prosecution for a drink driving offence - although offence committed by appellant serious, it was not so culpable that it amounted to a serious offence of its kind - Magistrate erred in characterising offence as a serious one of its kind - expense and inconvenience of investigating authorities caused by offence properly to be taken into account in sentencing for an offence against s 43(1) - penalties applicable for offences for which appellant may have been prosecuted had he surrendered to police within the time allowed by s 43(1) properly to be taken into account in sentencing for an offence against s 43(1) - personal and general deterrence important considerations in sentencing for offences against s 43(1) committed in circumstances of the kind under consideration - appeal allowed and appellant re-sentenced in respect of s 43(1) offence.

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH - CONSEQUENCES OF
Offence against s 43(1) amounted to a breach of a bond to be of good behaviour previously entered into by appellant - Magistrate ordered that bond be revoked - appeal against order of Magistrate that appellant pay part of the amount of the bond.
Held: Magistrate could not have been satisfied that appellant able to pay amount ordered in accordance with s 58(2) of the Criminal Law (Sentencing) Act 1988 (SA) - order that appellant pay part of amount of bond set aside.
Criminal Law (Sentencing) Act 1988 (SA) s 58(2); Liquor Licensing Act 1997 (SA) s 131A(1); Road Traffic Act 1961 (SA) s 43(1), s 43(3), s 45(1), s 47, s 47B; Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 18; Summary Offences Act 1953 (SA) s 6(2), referred to.
Fitzgerald v Police (2000) 113 A Crim R 413, distinguished.
Mallan v Berry [1964] SASR 8, discussed.

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 HILL v Police

Details

AGLC: HILL v Police [2009] SASC 308
Case: [2009] SASC 308
Decision Date: 1 October 2009

CaseChat Overview and Summary

The appellant in this case was involved in a car accident after consuming alcohol and driving. Following the accident, the appellant fled the scene, which led to charges under s 43(1) of the Road Traffic Act 1961 (SA). The appellant later pleaded guilty and was sentenced to imprisonment by a Magistrate. The appellant appealed the sentence, arguing it was excessive and that the Magistrate had erred in characterising the offence as serious. The appeal also contested the order to pay part of the bond amount following a breach.

The court was required to determine whether the Magistrate had correctly assessed the seriousness of the offence and the appropriateness of the sentence imposed. It also needed to consider whether the penalty was proportionate, taking into account the appellant's conduct and the nature of the offence. The court needed to address whether the expense and inconvenience caused to the investigating authorities and the penalties applicable for other potential offences were properly considered. Furthermore, the court had to decide on the appropriate consequences for the breach of the bond.

In its reasoning, the court found that s 43(1) of the Road Traffic Act 1961 (SA) creates a single offence that can be committed in various ways, and the appellant's actions constituted a failure to report to the police. The court acknowledged the reprehensible nature of the appellant's conduct but determined that the offence was not at the upper end of seriousness for offences of this kind. The court considered the expense and inconvenience to the investigating authorities, as well as the penalties applicable for other potential offences, in its sentencing assessment. The court emphasised the importance of personal and general deterrence in sentencing for such offences. Consequently, the appeal was allowed, and the appellant was re-sentenced to a shorter term of imprisonment.

The court allowed the appeal and set aside the original sentence of imprisonment for nine months. It ordered that the appellant be sentenced to imprisonment for a period of two months and 25 days, which reflected the time already served. The court also set aside the order that the appellant pay the sum of $300 for the breach of the bond, making no order in lieu thereof. All other orders made by the Magistrate concerning the offences committed on 25 December 2008 were to stand.

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

Having regard to all the circumstances, I consider that the period of just on three months in custody already served by the appellant is a sufficient penalty for the s 43(1) offence in this case. When allowance is made for a reduction on account of the appellant’s guilty plea, it represents a starting point of imprisonment for about four months. That starting point exceeds the maximum period of imprisonment which could have been ordered for a first driving under the influence offence. It is well less than the maximum period of imprisonment which could have been ordered under s 43(1) but, for the reasons given earlier, I do not consider that the appellant’s offence is to be regarded as at the upper end of seriousness for offences of this kind.Conclusion For the reasons given above, the appeal should be allowed. I set aside the order that the appellant be imprisoned for nine months and the consequential orders relating to the partial suspension of that term of imprisonment. In lieu thereof, I order that the appellant be sentenced to imprisonment for a period of two months and 25 days, being the period served in custody by the appellant from 25 May 2009 to 19 August 2009. In all other respects, the orders made by the Magistrate with respect to the offences committed on 25 December 2008 are to stand. In relation to the breach of the bond, I set aside the order that the appellant pay the sum of $300. I will make no order in lieu thereof.

Ratio Decidendi

Legal Principle Established

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