Joanni v Police - [2004] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOANNI v POLICE
Judgment of The Honourable Justice Gray
29 July 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant convicted of two counts of driving at a speed dangerous - one previous conviction - sentenced to a suspended term of imprisonment - licence disqualification of three years for each offence - magistrate ordered that the suspension be cumulative - serious offending - total disqualification period crushing - appeal allowed - part concurrency of periods of disqualification ordered - total sentence manifestly excessive - appellant submitted disqualifications should have been partly concurrent.
Road Traffic Act 1961 (SA) s 46, s 169A, referred to.
Police v Nowak (2000) 76 SASR 551; Mill v The Queen (1988) 166 CLR 59; R v Griffiths (1989) 167 CLR 372; Galic v Police (Debelle J, 24 January 1997, unreported), considered.

JOANNI v POLICE
[2004] SASC 225
Magistrates Appeal

GRAY J: This is an appeal against sentence.
Paraskeva Joanni, the appellant, pleaded guilty to two counts of driving at a speed which was dangerous to the public contrary to Section 46 of the Road Traffic Act 1961 (SA).
The first count related to an offence that took place at 3.15pm on 24 December 2003 on Seaview Road. The appellant was observed to ride a motorcycle past police ‘doing a mono’. This expression relates to circumstances of a rider of a motorcycle raising the front wheel off the road while travelling. He was followed by police and eventually stopped. His speed was estimated at 110 kilometres per hour. The speed limit was 60 kilometres per hour. When questioned by the police he said that he heard the police siren, panicked and took off. The appellant acknowledged that he had been showing off.
The second count related to an offence on 25 January 2004 at 5.45pm. The appellant was timed at a speed of 116 kilometres per hour on Military Road. The speed limit was 60 kilometres per hour. It was said that his pillion passenger was a prospective purchaser. The performance of the motorcycle was being demonstrated.
Section 46 of the Road Traffic Act relevantly provides:
(1)     A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
Penalty:
For a first offence--a fine of not less than $300 and not more than $600.
For a subsequent offence--
(a)   a fine of not less than $300 and not more than $600; or
(b)   imprisonment for not more than three months.
…
(3)     Where a court convicts a person of an offence against subsection (1), the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence
(i)in the case of a first offence--for such period, being not less than six months, as…

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 Joanni v Police

Details

AGLC: Joanni v Police [2004] SASC 225
Case: [2004] SASC 225
Decision Date: 29 July 2004

CaseChat Overview and Summary

The appellant, Joanni, was convicted of two counts of driving at a speed dangerous, with a previous conviction, and was sentenced to a suspended term of imprisonment. Each offence resulted in a three-year licence disqualification, which the magistrate ordered to be cumulative, leading to a total disqualification period of six years. The appellant appealed, arguing that the disqualification periods should have been partly concurrent.

The central legal issue was whether the magistrate had correctly applied the totality principle when imposing the cumulative licence disqualification periods. The principle of totality requires that the overall penalty for multiple offences, when considered together, should not be excessive. The court had to determine if the magistrate had appropriately balanced the need for deterrence and punishment with the potential hardship to the offender.

The court found that the magistrate had failed to adequately consider the principle of totality in imposing the sentences. While it was permissible to treat each offence separately, the court needed to ensure that the overall penalty was appropriate. The court noted that the appellant's conduct was serious, but the cumulative disqualification periods, when combined with the term of imprisonment, were crushing. The court allowed the appeal and ordered that the licence disqualification periods be partly concurrent, reducing the total disqualification period to four years.

The final order was that the licence disqualification in respect of the January 2004 offence would commence on 10 May 2005, allowing for a period of two years concurrency. This modification reduced the overall sentence, making it more aligned with the principle of totality.

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

It is recognised that ordering licence disqualification periods to be served consecutively, or as partly consecutive, is a means by which the totality principle can operate when a court is sentencing an offender for separate offences. As Debelle J observed in Galic v SA Police:[7]The period of three years disqualification ordered for each offence was the prescribed minimum. It was open to the magistrate to order a higher period of disqualification. However, it is apparent that the magistrate has failed to have regard to the totality of the order which he had made. Although the magistrate was entitled to treat each of the offences as having occurred on quite separate occasions and, to that extent, to impose orders which operated cumulatively, it was equally necessary for the magistrate, having ordered the periods of disqualification, to have regard to the totality of the criminality involved in the appellant's conduct and to determine whether the overall penalty was, in all the circumstances, appropriate.[7] (1997) SASC s5992 (24 January 1997) Debelle J – see also Watson v Police (1998) SASC S6623 (9 April 1998) Bleby JConclusion The conduct of the appellant involved serious breaches of the statutory provision. As the magistrate observed, the January 2004 offending put the appellant’s passenger at risk. Other road users were also potentially put at risk. The appellant was fortunate, as were others, that no mishap occurred. The magistrate addressed the seriousness of the January 2004 offending by imposing a term of imprisonment of two months. Bearing in mind the allowance made for the plea of guilty, it is evident that the magistrate must have started at or close to the maximum statutory sentence of three months imprisonment when arriving at the term of imprisonment of two months. Although an order was made suspending the term of imprisonment, it remains a very significant punishment.[8] In addition, counsel for the appellant drew the court’s attention to the undue hardship that would result from the cumulative periods of licence disqualification given the appellant’s personal circumstances.[8] Elliot v Harris (No 2) (1976) 13 SASR 516 at 527; Rae v Police [2002] SASC 270 When regard is had to the two terms of disqualification together with the term of imprisonment, there is substance in the complaint that the sentences were crushing. The magistrate’s remarks do not suggest that, having identified the sentence to be imposed for the two offences, he “stood back” and considered the principle of totality. Having regard to the term of imprisonment imposed, a proper consideration of the totality principle called for some concurrency of the periods of licence disqualification. In the circumstances of the present case, it was appropriate to have directed that the licence disqualification be in part consecutive and in part cumulative. The appeal is allowed for the limited purpose of altering the date on which the licence disqualification in respect of the January 2004 offence is to commence. That licence disqualification is to commence on 10 May 2005. This allows for a period of two years concurrency.

Ratio Decidendi

Legal Principle Established

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