Hyde v Police - [2006] SASC 362

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HYDE v POLICE
[2006] SASC 362
Judgment of The Honourable Justice Bleby
1 December 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against recording of conviction – Appellant pleaded guilty to driving with prescribed concentration of alcohol in blood contrary to s 47(B)(1), Road Traffic Act 1961 (SA) – Minimum fine and licence disqualification imposed by Magistrate – Where circumstances of offending are trifling under s 47B(3), Road Traffic Act 1961 – Consideration of application of s 16 and s 20 of Criminal Law (Sentencing) Act 1988 (SA) in relation to s 47B, Road Traffic Act 1961 – Appeal dismissed.
Road Traffic Act 1961 (SA) s 47A, s 47B; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 20, s 37; Fisheries Act 1982 (SA) s 66, referred to.
Hemming v Mundy [2001] SASC 105, distinguished.
Cresswell v Bates (1989) 9 MVR 176; Glover v Haseldine (1990) 48 A Crim R 118; Glover v Romanowcyz (1991) 55 SASR 524; Janz v Woolven (1990) 55 SASR 239; Mancini v Vallelonga (1981) 28 SASR 236, considered.

HYDE v POLICE
[2006] SASC 362
Magistrates Appeal: Criminal

BLEBY J: This is an appeal against the recording of a conviction. The appellant first appeared before a magistrate at the Christies Beach Magistrates Court on 17 November 2005. On that date he pleaded guilty to driving with the prescribed concentration of alcohol being present in his blood, contrary to s 47B(1) of the Road Traffic Act 1961 (SA) (“the Act”) on 21 August 2005.
The appellant had present in his blood at the relevant time 0.142 grams of alcohol per 100 millilitres of blood, making the offence a “category 2” offence under s 47A(1) of the Act. This was the appellant’s first offence against s 47B of the Act.
The appellant was liable to pay a fine of not less than $500 and not more than $900.[1] He was also liable to be disqualified from holding or obtaining a driver’s licence for a period of not less than 6 months.[2] However, that disqualification period may be reduced to not less than one month if the court is satisfied, by evidence given on oath, that the offence is trifling.[3]
[1] Section 47B(1), Road Traffic Act 1961 (SA).
[2] Section 47B(3)(a)(i)(A), Road Traffic Act 1961 (SA).
[3] Section 47B(3)(b), Road Traffic Act 1961 (SA).
At the hearing at Christies Beach Magistrates Court on 17 November 2005 submissions were made by a legal practitioner on behalf of the appellant, supported by evidence on oath from the appellant, to the effect that the appellant’s offending should be considered trifling, given the circumstances surrounding the offending.
Briefly, the circumstances of the offending were as follows. On 19 August 2005 the appellant booked a taxi to collect him from the Alma Hotel, Willunga, at midnight…

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 Hyde v Police

Details

AGLC: Hyde v Police [2006] SASC 362
Case: [2006] SASC 362
Decision Date: 1 December 2006

CaseChat Overview and Summary

The appellant in this case, Hyde, appealed against the recording of his conviction for driving with a prescribed concentration of alcohol in his blood, contrary to section 47(B)(1) of the Road Traffic Act 1961 (SA). Following his guilty plea, the magistrate imposed a minimum fine and disqualified his licence. Hyde's appeal focused on whether the circumstances of his offending were trifling, which would permit the magistrate to consider an alternative to recording a conviction under section 47B(3) of the Road Traffic Act 1961. Additionally, Hyde argued that the principles outlined in sections 16 and 20 of the Criminal Law (Sentencing) Act 1988 (SA) should be applied to the Road Traffic Act 1961.

The central legal issue before the court was whether the circumstances of Hyde's offending were trifling enough to warrant consideration of alternatives to recording a conviction under section 47B(3) of the Road Traffic Act 1961. Furthermore, the court had to determine if the principles set out in sections 16 and 20 of the Criminal Law (Sentencing) Act 1988 (SA) could be applied to the Road Traffic Act 1961 in this context. The court needed to assess the relevance and applicability of these sections to the particular statutory provisions of the Road Traffic Act 1961.

The court found that the circumstances of Hyde's offending were not trifling. It reasoned that the statutory provisions of the Road Traffic Act 1961, particularly section 47B(3), did not permit the application of the principles from the Criminal Law (Sentencing) Act 1988 (SA). Consequently, the court dismissed Hyde's appeal, upholding the decision of the magistrate to record the conviction and impose the fine and licence disqualification. The appeal was dismissed on the basis that the statutory framework did not allow for the consideration of the principles from the Criminal Law (Sentencing) Act 1968 (SA) in the context of the Road Traffic Act 1961.

Orders