LENNON v Police - [2005] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LENNON v POLICE
Judgment of The Honourable Justice Anderson
21 January 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appellant convicted of driving whilst disqualified, driving with the prescribed concentration of alcohol present in his blood, and speeding - the learned sentencing Magistrate found, in relation to the offence of driving whilst disqualifed, that the appellant's offending was 'contumacious' and imposed a sentence of imprisonment of six weeks - appeal against sentence of imprisonment - respondent conceded that if the offending was not contumacious then imprisonment was not justified - circumstances of the offending were that the appellant had driven from Port Augusta to Port Pirie in his grandmother's car - while in Port Pirie the appellant consumed alcohol, believing that his girlfriend would be driving back to Port Augusta - there was an argument between the appellant and his girlfriend that resulted in her leaving - the appellant then received a telephone call from his grandmother who was ill and needed the car returned to her - Magistrate found that there was not a genuine medical emergency - held: Magistrate misdirected himself in relation to whether the offending was 'contumacious' - appeal allowed.
Motor Vehicles Act 1959 (SA) s91; Road Traffic Act 1961 (SA) s47A, s47B, referred to.
White v Police [2000] SASC 127, applied.
Police v Cadd (1997) 69 SASR 150; Rhodes v Police [1999] SASC 191, discussed.

LENNON v POLICE
[2005] SASC 11
Magistrates Appeal

ANDERSON J In this matter the appellant appeals against a sentence of imprisonment imposed by a Magistrate when the appellant was convicted of driving whilst disqualified and driving with excessive alcohol in his blood.
The first count against the appellant was driving whilst disqualified from holding a licence contrary to s91 of the Motor Vehicles Act 1959 (SA).
The second count was driving whilst there was present in his blood more than the prescribed concentration of alcohol contrary to ss47A and 47B of the Road Traffic Act 1961 (SA). The actual concentration was 0.154 grams in 100 millilitres of blood.
The third count was that the appellant drove the motor vehicle on National Highway 1 at a speed of 135 kph in a 110 kph zone.
At the time of the offences, the appellant had been disqualified for forty-two months for driving with excessive alcohol some months beforehand.
The circumstances of the offending were that the appellant and his girlfriend had borrowed his grandmother’s vehicle from Port Augusta and attended at Port Pirie. When they were at Port Pirie the appellant consumed alcohol in the belief that his girlfriend would be driving back to Port Augusta. There was an argument between the appellant and his girlfriend which resulted in her leaving.
The appellant then said he received a phone call from his grandmother who was ill and who needed the car returned to her. The appellant was in a close relationship with his grandmother.…

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: [2005] SASC 11
Decision Date: 21 January 2005

CaseChat Overview and Summary

The appellant, Lennon, was convicted of driving while disqualified, driving with a prescribed concentration of alcohol in his blood, and speeding. Lennon drove from Port Augusta to Port Pirie in his grandmother's car, consumed alcohol in Port Pirie, and returned the car when his grandmother called, claiming to be ill. The sentencing Magistrate deemed Lennon's conduct contumacious, resulting in a six-week imprisonment sentence. Lennon appealed this decision, with the respondent conceding that if the conduct was not contumacious, imprisonment was unjustified.

The central legal issue was whether the Magistrate correctly identified Lennon's conduct as contumacious, warranting imprisonment. Contumacious conduct is typically defined as wilful, deliberate, and blatant disregard for the law. The appeal hinged on whether the Magistrate's findings regarding the nature of Lennon's conduct were justified, particularly considering the circumstances under which he drove the vehicle.

The court found that the Magistrate misdirected himself in concluding that Lennon's conduct was contumacious. The evidence did not support a finding of blatant disregard for the law, as Lennon had initially believed his girlfriend would drive back, and only drove the car in response to his grandmother's urgent request. The court emphasised that a genuine medical emergency was not established, but the circumstances did not rise to the level of contumacious behaviour. Therefore, the appeal was allowed, and the conviction was quashed.

Orders