Johnson v Police

Case [2011] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

JOHNSON v POLICE

[2011] SASC 63

Judgment of The Honourable Justice Sulan

19 April 2011

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Appeal against sentence - appellant pleaded guilty to driving motor vehicle without consent - took golf cart without permission - sentenced to suspended sentence of ten days' imprisonment - disqualified from holding driver's licence for 12 months - conviction recorded - whether sentence manifestly excessive - whether section 86A contemplates a penalty other than imprisonment - whether section 18 allows for substitution of a fine when imposing a disqualification of licence - whether discretion not to record conviction under section 39 - whether discretion not to record conviction under section 16 when imposing a disqualification of licence - offence not trifling - Magistrate erred in imposing imprisonment and recording conviction - appeal allowed in respect of count 1 - imposition of fine and disqualification of licence.

Criminal Law Consolidation Act 1935 (SA) s 86A; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 16, s 18, s 39; Road Traffic Act 1961 (SA) s 45(2), s 46, s 47b(1), s 47b(3); Statutes Amendment (Illegal Use of Motor Vehicles) Bill (SA), referred to.
Speake v Police [2008] SASC 314, applied.
Janz v Woolven (1990) 55 SASR 239, distinguished.
Nattrass v Police [2008] SASC 267; Police v Jachmann [2010] SASC 345; Harris v Police [2009] SASC 163; Miles v Police [2009] SASC 314; Hemming v Mundy [2001] SASC 105; Siviour-Ashman v Police (2003) 85 SASR 23; Walden v Hensler (1987) 163 CLR 561; Campbell v Fuss (1991) 55 SASR 355; Police v Hodge (1996) 89 A Crim R 290; Police v Mutton [2006] SASC 328, considered.

JOHNSON v POLICE
[2011] SASC 63

Magistrates Appeal:                  Criminal

  1. SULAN J:             This is an appeal against sentence.  The defendant, Jerome Marvyn Johnson, pleaded guilty to driving a motor vehicle without consent, and was sentenced to ten days’ imprisonment.  The sentence was suspended upon the defendant entering into a bond in the amount of $500 to be of good behaviour for six months. He also pleaded guilty to driving an unregistered and uninsured motor vehicle, for which he was fined $800.  Finally, he pleaded guilty to driving without due care, for which he was fined $200.  The defendant was disqualified from holding or obtaining a driver’s licence for a period of 12 months.

  2. The defendant complains that the sentence was manifestly excessive.  He contends that the Magistrate erred in imposing a period of imprisonment and recording a conviction for the illegal use offence.  Furthermore, that the Magistrate erred in failing to conclude that the offending was trifling.

    Background

  3. On 13 March 2010, the defendant drove a motorised golf buggy without first obtaining the consent of the owner.  The defendant had attended the Clipsal 500 with two of his friends.  Disheartened by…

Continue reading Johnson v Police

Sign in free to access the full text

Details
AGLC
Johnson v Police [2011] SASC 63
Case
[2011] SASC 63
Decision Date

CaseChat Overview and Summary

The appellant, Johnson, appealed against a sentence imposed by the Magistrates Court for taking a golf cart without permission. The court was required to determine whether the sentence was manifestly excessive, if the statute allows for a penalty other than imprisonment, and whether the court can substitute a fine for a disqualification of a licence. The court also had to decide if there was a discretion not to record a conviction in certain circumstances. The appellant contended that the Magistrate erred in imposing a period of imprisonment and recording a conviction for the illegal use offence, and in not concluding that the offending was trifling. The Magistrate had sentenced Johnson to a suspended sentence of ten days' imprisonment, disqualified him from holding a driver's licence for 12 months, and recorded a conviction. The Magistrate was satisfied that Johnson was genuinely contrite, had been cooperative with the police, and was unaware of the seriousness of the offending. The Magistrate concluded that Johnson was unlikely to offend again.

The court found that the sentence was manifestly excessive as the offence was not trifling, but a foolish act committed without thought. The court held that section 86A of the Criminal Law Consolidation Act 1935 (SA) does not contemplate a penalty other than imprisonment, and that section 18 of the Act allows for substitution of a fine when imposing a disqualification of a licence. The court also found that there is a discretion not to record a conviction under section 39 and section 16 when imposing a disqualification of licence. The appeal was allowed in respect of count 1, and the imposition of a fine and disqualification of licence was ordered instead of the imprisonment and conviction.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The defendant complains that the sentence was manifestly excessive. He contends that the Magistrate erred in imposing a period of imprisonment and recording a conviction for the illegal use offence. Furthermore, that the Magistrate erred in failing to conclude that the offending was trifling.Background On 13 March 2010, the defendant drove a motorised golf buggy without first obtaining the consent of the owner. The defendant had attended the Clipsal 500 with two of his friends. Disheartened by the long walk to their car, the defendant asked an employee of the Clipsal 500 for a lift on a golf buggy. His requests were refused. Shortly thereafter, the defendant was seen by police driving away in an unattended buggy. He drove the buggy out of the venue and proceeded to cross Fullarton Road, via the pedestrian crossing, with other pedestrians. He drove along Alexandra Avenue to Rose Park Primary School, where he abandoned the buggy. The golf buggy was driven approximately 500 metres in total. No damage was done to the vehicle.The defendant’s circumstances The defendant pleaded guilty. The Magistrate was satisfied that the defendant was genuinely contrite. He had been cooperative with police. The defendant was unaware of the seriousness of the offending. The offending was a foolish act committed without thought. The defendant was 19 years of age at the time of the offence. He has no prior convictions for any criminal or traffic matters. A statement from the Bishop of the defendant’s church attests to him being a kind and helpful individual who seeks to make positive changes in his life. He currently serves as a leader in the youth program and is well supported by his parents and church leaders. The conduct was totally out of character. The Magistrate concluded that the defendant is unlikely to offend again.The relevant provision The defendant was charged with contravention of section 86A of the Criminal Law Consolidation Act 1935 (SA), which states:86A – Using motor vehicle without consent(1) A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.Penalty:For a first offence – imprisonment for 2 years;For a subsequent offence – imprisonment for not less than 3 months and not more than 4 years.(2) Where an adult court finds a person guilty of an offence against this section, the court must (whether or not it convicts the person of the offence and in addition to any other order that it may make in relation to the person) order that the person be disqualified from holding or obtaining a driver’s licence for a period of 12 months.(3) Notwithstanding the Children’s Protection and Young Offenders Act 1979 where the Children’s Court finds a charge of an offence against this section proved against a child, the Court must (whether or not it convicts the child of the offence and in addition to any other order that it may make in relation to the child) order that the child be disqualified from holding or obtaining a driver’s licence for a period of 12 months (commencing, in the case of a child who has not attained the qualifying age for a driver’s licence, not earlier than when the child attains that age).(4) The disqualification prescribed by subsection (2) or (3) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.(5) The court may, in addition to imposing a penalty under this section, order the defendant to pay to the owner of the motor vehicle driven, used or interfered with in contravention of this section such sum as the court thinks proper by way of compensation for loss or damage suffered by the owner.(6) Subsections (1) and (5) do not apply to any person acting in the exercise of any power conferred, or the discharge of any duty imposed, under the Road Traffic Act 1961 or any other Act.(7) In this section – drive, driver’s licence, motor vehicle, road and owner have the same meanings as in the Road Traffic Act 1961. (Emphasis is mine)Should a sentence of imprisonment have been imposed?

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.