Jones v Police - [2023] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
JONES v POLICE
[2023] SASC 55
Judgment of the Honourable Justice Nicholson
13 April 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS
Appeal against sentence.
The appellant pleaded guilty to four driving offences and subsequently was sentenced on 27 July 2022 in the Magistrates Court for (i) driving whilst disqualified on 24 March 2021; (ii) exceeding the speed limit by 20-29km/h on 24 March 2021; (iii) driving a vehicle with a combination of drugs in fluid or blood on 24 March 2021; and (iv) driving whilst disqualified on 2 November 2021. The appellant also admitted to breaching her bond to be of good behaviour through the offending on 24 March 2021.
The Magistrate imposed a $1,500 fine and disqualified the appellant from driving for two years. The appellant was also sentenced to imprisonment for the total term of three months and three days. On 16 August 2022, the appellant was granted bail pending the appeal.
The sentence of imprisonment is the subject of the appeal.
Held:
1.Appeal allowed.
2.The appellant is re-sentenced to imprisonment for 51 days, which will be suspended provided the appellant enters into a bond to be of good behaviour for 18 months.

Australian Road Rules r 20; Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 91(5); Road Traffic Act 1961 (SA) s 47B(1)(a), referred to.
House v The King (1936) 55 CLR 499; Police v Cadd (1997) 69 SASR 150; Police v Chilton (2014) 120 SASR 32, considered.

JONES v POLICE
[2023] SASC 55
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 27 July 2022, the appellant, Lisa Marie Jones was sentenced in the Magistrates Court for a number of driving offences and for breaching a good behaviour bond. The appellant has appealed against the term of imprisonment that was imposed. The applicant had pleaded guilty to the following offences:
(i)driving whilst disqualified contrary to subection 91(5) of the Motor Vehicles Act (1959) SA (the second driving disqualified offence), committed on 24 March 2021;
(ii)exceeding the speed limit by 20-29km/h contrary to rule 20 of the Australian Road Rules, committed on 24 March 2021;
(iii)driving a vehicle with a combination of drugs in fluid or blood, contrary to subsection 47B(1)(a) of the Road Traffic Act 1961 (SA) committed on 24 March 2021; and
(iv)driving whilst disqualified committed on 2 November 2021 (the third driving disqualified offence).
The appellant admitted that the offending on 24 March 2021 caused her to breach a bond to be of good behaviour entered into on 13 July 2020 for an earlier offence of driving whilst disqualified (the first driving disqualified offence). The bond was one that required the appellant to come up for sentence, if breached.
For the first drive disqualified offence (the subject of the bond) the Magistrate fixed…

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

Case: [2023] SASC 55
Decision Date

CaseChat Overview and Summary

Jones has appealed against the sentence imposed by the Magistrates Court of South Australia. The appeal is on the ground that the sentence is manifestly excessive. The appeal arises under section 42 of the Magistrates Court Act 1991 (SA) and is an appeal by way of rehearing. The appeal will be determined in accordance with the principles summarised by the High Court in House v The King. The court must decide whether the sentence imposed is manifestly excessive in the circumstances of the case.

The appeal raises the question of whether the sentence imposed was manifestly excessive. The appellant argues that the sentence is manifestly excessive due to her age, lack of prior criminal history, and the personal circumstances of the driving disqualified offences. The court must consider the principles of sentencing, including deterrence, denunciation, and rehabilitation, as well as the personal circumstances of the appellant. The court must also consider the extenuating circumstances of the driving disqualified offences.

The court held that the appeal should be dismissed. The court found that the appellant's personal circumstances and the circumstances of the driving disqualified offences were sufficiently compelling to require leniency. The court considered the principles of sentencing and found that the sentence was appropriate in the circumstances of the case. The court found that the appellant's age, lack of prior criminal history, and the extenuating circumstances of the driving disqualified offences were mitigating factors that warranted a reduction in sentence. However, the court found that the seriousness of the offending called for the imposition of a term of imprisonment.

The court dismissed the appeal and affirmed the sentence imposed by the Magistrates Court.

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

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

An appeal of this nature arises pursuant to section 42 of the Magistrates Court Act 1991 (SA) and is an appeal by way of rehearing. However, it is to be determined in accordance with the principles summarised by the High Court in House v The King.[1] [1] (1936) 55 CLR 499 at 505.Consideration The driving disqualified offending was undoubtedly serious and called for the imposition of a term of imprisonment.[2] Both personal and general deterrence together with denunciation of the conduct are important considerations. However, the appellant’s personal circumstances and the circumstances of the offending were sufficiently compelling to require leniency.[2] Police v Cadd (1997) 69 SASR 150; Police v Chilton (2014) 120 SASR 32. The appellant was 51 at the time she was sentenced. Apart from the driving disqualified offences, she has no prior record of any significance. The appellant had not previously served any time in prison or had the benefit of a suspended prison sentence. She has three adult children (all in their 20s) who live with and remain largely dependent on her. The eldest has been confronting social issues associated with transitioning as a transgender person and a recent diagnosis of bowel cancer. This child has been very dependent on the appellant’s support. The appellant, herself, has struggled with significant, particularly mental, health issues. She suffers from post-traumatic stress disorder and depression likely as a result of the abusive conduct of her former partner, attempted suicide in early 2022 and has spent time in Woodleigh House, an acute care mental health facility in the northern suburbs of Adelaide. She also suffers from chronic pneumonia. The circumstances of the driving disqualified offences committed on 24 March and 2 November 2021 resulted from the appellant’s fraught relationship with her former partner. On the first occasion, the appellant collected her partner from prison after he had served some time for his domestic violence. She initially refused to do so but after multiple phone calls and requests she bowed to the pressure and relented. She was fearful for her safety. On the latter occasion, the appellant was in the process of escaping from the same man and getting away from him as quickly as she could. In each case there were alternatives available to her; in neither case were the circumstances sufficient to provide a defence. However, in each case they do serve to reduce her moral culpability. There is little, if any, merit in the first appeal ground. It is true that the Magistrate was not informed and did not seek to inform himself of the circumstances of the driving disqualified offence, the subject of the bond. However, counsel for the appellant could have done so. Further, the circumstances were quite unremarkable and I am satisfied that, if ventilated, they would have had no material effect on the sentence for that offence. However, it is a very serious matter to imprison a 51 year old, with no prior record of significance, for the first time and, particularly, a person in the appellant’s personal circumstances. Further, as mentioned, the latter two driving disqualified offences were committed in extenuating circumstances.