Khammash v Police - [1999] SASC 225

KHAMMASH v POLICE
[1999] SASC 225

Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Elizabeth following his conviction on a charge that on 1 September 1998 at Parafield he drove while disqualified from holding or obtaining a licence, contrary to s91 of the Motor Vehicles Act 1959.
He pleaded not guilty, but was found guilty by the learned trial magistrate, who imposed a sentence of 18 months imprisonment.
The offence operated as a breach of a bond upon which a sentence of five months imprisonment had previously been suspended. The magistrate saw no reason to ameliorate the consequences of the breach of bond, with the result that the sentence of five months imprisonment was activated, giving a total head sentence of 23 months, against which the learned magistrate set a non-parole period of 15 months. Further, he disqualified the appellant from holding or obtaining a driver's licence until further order.
The appeal is against sentence only. The appellant complains that both the sentence of imprisonment and the period of the licence suspension were manifestly excessive.
The magistrate's sentencing remarks indicate that he took a poor view of the appellant, particularly having regard to his record of prior convictions. Many of them were for traffic offences, but there were also offences involving dishonesty and violence stretching back to 1985.
There were no less than seven prior convictions for driving whilst disqualified. The dates upon which the prior offences were committed lie between 1988 and 1997. As to the last of them, the appellant was before the court on 18 February 1998, when he was disqualified for a period of 12 months. The present offence was a breach of that order of disqualification.
The circumstances of the present offending appear from the learned magistrate’s reasons for judgment following the defended hearing.
It appears that at about 2.15 on the afternoon of the day in question, the appellant was seen driving a Rover sedan motor car on Main North Road by a uniformed police officer in a mobile patrol car. The police car overtook the appellant. As it drew alongside, the driver of the police car recognised the appellant from previous dealings which he had had with him. He noticed a female passenger in the appellant's car. The driver of the police car then pulled over to the side of the road, stopped and made a computer inquiry which indicated, in the first place, that the appellant's car was owned by him and, in the second place, that he had been disqualified on the occasion in February 1998 to which I have referred, that disqualification then still being current.
Armed with that information, the driver of the police car pursued the appellant's car, eventually catching up with it at some shops further down the road, where the appellant had pulled in and stopped his car.
When challenged about the matter, the appellant said that he had not been driving…

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: Khammash v Police [1999] SASC 225
Case: [1999] SASC 225
Decision Date: 28 May 1999

CaseChat Overview and Summary

The case of Khammash v Police involved the appellant, who appealed against the sentence imposed on him for driving while disqualified, contrary to section 91 of the Motor Vehicles Act 1959. The appeal was limited to the sentence only. The appellant argued that both the sentence of imprisonment and the period of the licence suspension were manifestly excessive. The magistrate had imposed a sentence of 18 months imprisonment, which was a breach of a bond upon which a sentence of five months imprisonment had previously been suspended. The total head sentence was 23 months, against which the non-parole period was set at 15 months, and the appellant was disqualified from holding or obtaining a driver's licence until further order.

The legal issues the court was required to decide included whether the sentence of 18 months imprisonment for an eighth offence of driving while disqualified was manifestly excessive, and whether a period of licence disqualification should be coupled with the sentence of imprisonment.

The court held that the sentence of 18 months imprisonment was manifestly excessive and reduced it to 12 months, to be served cumulatively upon the activated sentence of 5 months, giving an overall sentence of 17 months, against which the non-parole period would be set at 10 months. The court also quashed the order for disqualification. The reasoning behind the decision was that the sentence imposed by the learned magistrate was not in line with sentencing standards for this offence, and that it was inappropriate to superimpose upon the term of imprisonment a further order for suspension of licence.

The final orders of the court were that the appeal would be allowed, and the order of imprisonment imposed by the learned trial magistrate would be substituted with a term of 12 months imprisonment on the charge of driving while disqualified, which, together with the activated term of five months imprisonment which was suspended, made a total head sentence of 17 months. The non-parole period was fixed at 10 months against the adjusted head sentence, and the order for disqualification was quashed. The respondent was ordered to pay the appellant's costs of and incidental to the appeal in the sum of $150.

Orders