Johnson v Police

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.