JAMIESON v Police - [2004] SASC 335

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JAMIESON v POLICE
Judgment of The Honourable Justice White
29 October 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
Appellant pleaded guilty to illegal use, failing to obey a reasonable direction of a police officer, and driving in a manner dangerous - For illegal use, Magistrate sentenced appellant to 10 months imprisonment, suspended after one month - Appellant had demonstrated rehabilitation between commission of offences and sentencing - Appellant in employment which would be lost if custodial sentence required to be served immediately - Term of imprisonment was appropriate given seriousness of offence - Magistrate erred in failing to suspend entire sentence - Appeal allowed.
Magistrates Court Act 1991, s 42; Criminal Law Consolidation Act 1935, s 86A; Criminal Law (Sentencing) Act 1988, s 38; Australian Road Rules r 10, r 304; Road Traffic (Road Rules - Ancillary and Miscellaneous provisions) Regulations 1999, reg 50, referred to.
House v The King (1936) 55 CLR 499; Gardner v Janic (1975) 12 SASR 495, applied.
R v Harris (1992) 59 SASR 300; R v Place (2002) 81 SASR 395; R v Kane [2003] SASC 237; Wood v Samuels (1974) 8 SASR 465, considered.

JAMIESON v POLICE
[2004] SASC 335
Magistrates Appeal
WHITE J
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991 against a sentence imposed by a Magistrate on 3 August 2004.
The appellant pleaded guilty to three charges. Each offence occurred on 14 August 2002. The first was that he had driven a motor vehicle without first obtaining the consent of the owner, contrary to s 86A of the Criminal Law Consolidation Act 1935. The second was that he had failed to obey a reasonable direction for the safe and efficient regulation of traffic given to him by a police officer in contravention of rule 304(1) of the Australian Road Rules. The third was that he had driven on roads in Campbelltown, Newton and Paradise in a manner which was dangerous to the public. Each of the offences arose out of the unauthorised use of a motor vehicle involving a high-speed chase by police on 14 August 2002.
In respect of the offence of use of the vehicle without the consent of the owner (“illegal use”) the Magistrate sentenced the appellant to 10 months imprisonment. However, he directed that the appellant was to serve one month of that sentence and suspended the remainder of the sentence, pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988, upon condition that the appellant enter into a bond in the sum of $400 to be of good behaviour for the balance of the period of imprisonment, namely nine months. In addition, the Magistrate ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months and that the period…

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: JAMIESON v Police [2004] SASC 335
Case: [2004] SASC 335
Decision Date: 29 October 2004

CaseChat Overview and Summary

Jamieson appealed against the sentence imposed by the magistrate. The appellant had pleaded guilty to illegal use, failing to obey a reasonable direction of a police officer, and driving in a manner dangerous. The magistrate sentenced the appellant to 10 months imprisonment, suspended after one month, for illegal use. The appellant had demonstrated rehabilitation between the commission of the offences and sentencing. The appellant was in employment which would be lost if the custodial sentence required to be served immediately. The term of imprisonment was appropriate given the seriousness of the offence.

The appeal centred around the magistrate's decision not to suspend the entire sentence of imprisonment. The court had to determine whether the magistrate's decision was appropriate under the circumstances and whether the appellant's rehabilitation and employment status warranted a full suspension of the sentence. The court also had to consider whether the punishment and deterrence requirements were met by the sentence.

The court found that the punishment and deterrence requirements were met by the imposition of the sentence of imprisonment. The particular circumstances of the appellant made suspension appropriate. The appellant had demonstrated rehabilitation and was in employment which would be lost if the custodial sentence required to be served immediately. The court found that the magistrate had erred in failing to suspend the entire sentence. The court allowed the appeal and set aside the order of the magistrate that the appellant serve one month of the sentence. In lieu thereof, the court imposed a sentence of 10 months imprisonment, to commence on 3 August 2004, and suspended that sentence wholly upon the appellant entering into a bond in the sum of $400 to be of good behaviour for a period of 18 months. The other orders made by the magistrate, including orders for licence disqualification, fines and compensation, 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

In my opinion, this is a case in which the whole of the sentence of imprisonment which had been imposed should be suspended. The punishment of the appellant, and the requirements of deterrence are met by the imposition of the sentence of imprisonment. The particular circumstances of the appellant make suspension appropriate.Conclusion For the reasons given, I allow the appeal. In respect of the offence of illegal use of a motor vehicle, I set aside the order of the Magistrate that the appellant serve one month of that sentence and that the remainder be suspended. I substitute for that order an order that the sentence of imprisonment of 10 months be suspended on condition that the appellant enter into a bond in the sum of $400 to be of good behaviour for a period of 18 months. The remaining orders of the Magistrate are to stand. The orders of the Court are:1Appeal allowed.2The sentence which was imposed by the Magistrate on 3 August 2004 for the offence of driving a motor vehicle without the consent of the owner is set aside.3In lieu thereof, I impose for the offence of driving a motor vehicle without the consent of the owner, a sentence of 10 months imprisonment, to commence on 3 August 2004.4That sentence is wholly suspended upon the appellant entering into a bond in the sum of $400 to be of good behaviour for a period of 18 months.5The other orders made by the Magistrate, including orders for licence disqualification, fines and compensation, are to stand.

Ratio Decidendi

Legal Principle Established

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