Larizza v SA Police No. Scciv-02-1151

[2002] SASC 339

LARIZZA v SA POLICE

[2002] SASC 339

MAGISTRATES APPEAL
CIVIL

1. GRAY J                 This is an appeal against the decision of a magistrate.

2. On 26 July 2002 the appellant Dominic Larizza pleaded guilty to driving unregistered and uninsured.[1]  Mr Larizza was unrepresented.  He was convicted, fined $250.00 and his drivers licence was disqualified for three months.[2]  The maximum penalty for driving unregistered was a fine of $1,002.00.  The maximum penalty for driving uninsured was a fine of $2,500.00 and licence disqualification for 12 months.

   An affidavit of the prosecutor deposed that the charges were read and involved an allegation that at about 9:07 pm Mr Larizza was driving a Toyota sedan in a westerly direction along North Terrace Adelaide.  He was stopped and spoken to by the police.  Mr Larizza stated that he had driven the vehicle on North Terrace, Anzac Highway and Brighton Road and that he had no excuse for driving unregistered and uninsured.  He also stated that he was aware that it was an offence to drive whilst unregistered and uninsured. 

   The prosecutor’s affidavit recorded that Mr Larizza’s relevant prior offending was identified for the magistrate as follows:

   - on 25 October 2001 convicted of driving unregistered and with no licence and fined $100.

   - on 6 October 1998 convicted of driving unregistered and uninsured and fined $100.

   - on 27 October 1998 convicted of driving unregistered and uninsured and was fined $150 and disqualified from driving for a period of 2 days.

   - on 12 May 1993 convicted of driving unregistered, uninsured and with no licence and fined and $210 and disqualified from driving for 7 days.

   [1] The complaint was in the following terms:

   [2] In addition Mr Larizza was ordered to pay costs in the amount of $108.70 court fees and $56.00 criminal injuries compensation levy and prosecution costs of $16.00 

3. The affidavit also disclosed that the magistrate then asked Mr Larizza whether he agreed with the facts and prior convictions alleged.  Mr Larizza did not challenge those facts and prior convictions.  The magistrate questioned Mr Larizza about the specific circumstances of his offending and discussed his personal and financial circumstances. He then imposed the one penalty for both offences. 

4. Mr Larizza’s appeal was lodged three days late. The only material filed was a notice of appeal which purports to appeal against conviction and sentence.  It provides limited information. The only ground of appeal is “Too excessive, last conviction 1½ yrs ago.” No affidavit supporting the appeal has been filed.

5. Mr Larizza was given written notice of the date and time of the hearing. He made telephone contact with my chambers and advised that he was leaving to travel to Kalgoorlie to work and that he would be unable to attend at the allocated time. Mr Larizza said that he was unsure whether he would pursue his appeal. He was advised that if he was proposing to abandon his appeal then he would need to speak with the registry about the discontinuance procedure. He was advised that it was possible that his matter could be re-listed to a more suitable time.

6. Mr Larizza was offered the opportunity to attend court at a directions hearing at short notice before he left for Kalgoorlie so that he could advise the court and the Crown about the listing difficulty. He was offered tentative times. Mr Larizza said that he would telephone later. However he has made no further contact with my chambers.

7. The following week my chambers was contacted by the appeals clerk at the Crown and advised that she had heard from Mr Larizza that he was not going to attend court at the listed time. Counsel for the Crown wished to be informed if the matter was to proceed on the listed date. My chambers then spoke with Mr Larizza by telephone. He advised that he would be leaving for Kalgoorlie soon. He was again unsure as to whether he was would continue his appeal. Mr Larizza was advised that his appeal would be called on as originally listed. He was advised that if he could not attend then it was important that he arrange for someone else to come to court on his behalf. He was also advised that if this was not possible it was important for him to put an explanation in writing and fax it as soon as practicable. Mr Larizza said he did not need the fax number because it was on the court letterhead earlier received.

8. Mr Larizza also sought advice about whether his licence would be taken away and whether he could continue to drive interstate. That was the last contact my chambers had with Mr Larizza.

9. There has been no explanation for the appeal being lodged out of time. Mr Larizza did not seek to have the matter called on to fix a more convenient time or explain his position in writing. There is nothing to indicate that this appeal has any prospect of success.

10. The appeal is dismissed for want of prosecution.

    LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

    [1] The complaint was in the following terms:

    “On the 31^st day of May 2002 at Adelaide in the said State [Dominic Larizza] drove a vehicle namely a motor vehicle on a road namely North Terrace the registration of such motor vehicle not then being in force under the provisions of part II of the Motor Vehicles Act 1959.
    Section 9 of the Motor Vehicles Act 1959.

    On the 31^st day of May 2002 at Adelaide in the said State [Dominic Larizza] drove a vehicle namely a motor vehicle on a road namely North Terrace without there then being in force, in relation to the said motor vehicle, a policy of insurance complying with Part IV of the Motor Vehicles Act, 1959.
    Section 102 of the Motor Vehicles Act 1959.”

    [1] In addition Mr Larizza was ordered to pay costs in the amount of $108.70 court fees and $56.00 criminal injuries compensation levy and prosecution costs of $16.00 

    
    

“On the 31^st day of May 2002 at Adelaide in the said State [Dominic Larizza] drove a vehicle namely a motor vehicle on a road namely North Terrace the registration of such motor vehicle not then being in force under the provisions of part II of the Motor Vehicles Act, 1959.
Section 9 of the Motor Vehicles Act 1959.

On the 31^st day of May 2002 at Adelaide in the said State [Dominic Larizza] drove a vehicle namely a motor vehicle on a road namely North Terrace without there then being in force, in relation to the said motor vehicle, a policy of insurance complying with Part IV of the Motor Vehicles Act, 1959.
Section 102 of the Motor Vehicles Act 1959.”