HOWLETT v Police - [2005] SASC 271

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Criminal)
HOWLETT v POLICE
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Debelle)
20 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - appellant pleaded guilty in Magistrates Court to various offences, including driving whilst disqualified from holding or obtaining a driver's licence - sentenced to 4 months imprisonment with licence disqualification of 3 years - no sentencing remarks on file - appealed to single judge - appeal allowed by single judge for purpose of reducing licence disqualification period to 1 year - appeal to Full Court - whether a global penalty was imposed for all offences - appeal allowed - sentence of 4 months imprisonment set aside and in lieu thereof appellant sentenced to period of imprisonment already served - imposition of a fine for remaining offences - licence disqualification imposed by single judge affirmed.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Hermel v Police (2000) 76 SASR 336; R v Matthew [2001] SASC 390, applied.
R v Keyte [2000] SASC 382; Papps v Police (2000) 77 SASR 210, discussed.

HOWLETT v POLICE
[2005] SASC 271
Full Court: Doyle CJ, Duggan and Debelle JJ

DOYLE CJ: I agree with the orders proposed by Duggan J and with his reasons. There is nothing that I wish to add.
DUGGAN J: The appellant pleaded guilty in the Magistrates Court to the offences of driving while disqualified from holding or obtaining a driver’s licence (“driving while disqualified”), driving an unregistered vehicle, driving an uninsured vehicle, failing to truthfully answer questions and providing false information in an application for release on bail.
According to the facts put before the magistrate the appellant was stopped by a police officer when driving a vehicle on Grand Junction Road, Pennington on 24 January 2004. The vehicle was unregistered and uninsured. When questioned the appellant gave a false name. He was arrested and gave the same false name when completing a bail application form. Police enquiries revealed that he had been disqualified from driving for 28 days on 2 January 2004.
The magistrate sentenced the appellant to imprisonment for four months. The appellant was also disqualified from holding or obtaining a driver’s licence for three years.
There are no sentencing remarks on the Magistrates Court file. However it appears from the court documents that the magistrate may have imposed a global penalty of imprisonment in relation to all the offences. Only the offence of driving while disqualified could be punished by way of a term of imprisonment.
The appellant appealed against sentence to a single judge. The question whether a global penalty was imposed was not raised on the hearing of that appeal. However, the appeal was allowed for the limited purpose of reducing the period of…

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

AGLC: HOWLETT v Police [2005] SASC 271
Case: [2005] SASC 271
Decision Date: 20 July 2005

CaseChat Overview and Summary

The appellant in this case, Howlett, appealed against the sentence imposed by the Magistrates Court following his guilty plea to various offences, including driving while disqualified from holding or obtaining a driver's licence. The Magistrates Court sentenced Howlett to four months imprisonment and disqualified him from holding or obtaining a driver's licence for three years. Howlett appealed to a single judge for the purpose of reducing the licence disqualification period to one year, which was granted. Howlett then appealed to the Full Court on the basis that a global penalty was imposed for all the offences, which the Full Court allowed.

The Full Court had to determine whether a global penalty was imposed by the Magistrates Court for all the offences, and if so, whether it was appropriate to set aside the original sentence and impose a new penalty. The Full Court found that a global penalty was indeed imposed for all the offences, and as a result, set aside the original sentence of four months imprisonment and instead imposed a fine for the remaining offences. The Full Court also affirmed the licence disqualification period of one year imposed by the single judge.

The Full Court, in allowing the appeal, held that a global penalty was imposed by the Magistrates Court for all the offences, and that it was appropriate to set aside the original sentence of four months imprisonment. The Full Court considered that the appropriate penalty for the remaining offences was a fine, and affirmed the licence disqualification period of one year imposed by the single judge.

In summary, the Full Court allowed the appeal, set aside the original sentence of four months imprisonment and imposed a fine for the remaining offences, and affirmed the licence disqualification period of one year imposed by the single judge.

Orders