McGrath v Police - [2021] SASC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MCGRATH v POLICE
[2021] SASC 140
Judgment of the Honourable Auxiliary Justice Davison
3 December 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
On 3 May 2021 the appellant was sentenced to a term of imprisonment of four days for an offence of driving whilst disqualified. That sentence was suspended upon her entering into a bond to be of good behaviour for six months.
On 18 May 2021 the appellant was detected driving whilst disqualified and having more than the prescribed concentration of alcohol in her blood. These offences were committed in breach of the suspended sentence bond imposed on 3 May 2021.
The appellant pleaded guilty on 7 September 2021 to the offences committed on 18 May 2021 and acknowledged the breach of the bond entered into on 3 May 2021. On 7 September 2021 the Magistrate revoked the suspended sentence and ordered that she serve the term of imprisonment. He sentenced her to seven weeks imprisonment for the offence of driving whilst disqualified on 18 May 2021 and ordered the sentences be served cumulatively.
The appellant appealed against the sentence on the grounds that:
1. The learned Magistrate erred in failing to excuse a breach of bond entered into by the appellant on 3 May 2021;
2. The head sentence for the offence of drive disqualified committed on 18 May 2021 was manifestly excessive;
3. The learned Magistrate erred in failing to properly exercise his discretion in not suspending the sentence.
Held:
1. The learned Magistrate did not err in failing to excuse the breach of bond as the breach was not trivial nor did proper grounds exist to excuse the breach.
2. The sentence of seven weeks imprisonment for a subsequent offence of driving whilst disqualified was not manifestly excessive.
3. The learned Magistrate did not err in failing to properly exercise his discretion in not suspending the sentence as he was precluded from doing so pursuant to s 96(3)(a) of the Sentencing Act 2017 (SA).
The appeal is dismissed.
Motor Vehicles Act 1959 (SA) ss 91, 91(5); Sentencing Act 2017 (SA) ss 71(2)(d), 96(1), 96(3)(a), 96(4), 114(1)(d), 114(3), referred to.
House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; Markarian v The Queen (2005) 228 CLR 357; Carbone v Police [2016] SASC 131; Police v Peel (2021) 134 SASR 584; Police v Heritage (2019) 135 SASR 1; Coombe v Douris (1987) 47 SASR 324; Eldridge v Bates (1989) 51 SASR 532; Police v Nissen (2014) 120 SASR 50; Police v Cadd (1997) 69 SASR 150;

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.

Continue reading McGrath v Police

Details

AGLC: McGrath v Police [2021] SASC 140
Case: [2021] SASC 140
Decision Date: 3 December 2021

CaseChat Overview and Summary

The appellant, McGrath, appealed against the sentence imposed on him by the Magistrates Court of South Australia. McGrath had been convicted of driving while disqualified, and this was his second such offence. The Magistrate sentenced McGrath to seven weeks imprisonment, suspended for two years, with certain conditions. McGrath subsequently breached the conditions of his suspended sentence and was convicted of a further offence of driving while disqualified. He was sentenced to seven weeks imprisonment. The appeal was brought against the sentence for the subsequent offence of driving while disqualified.

The legal issues in this case were whether the Magistrate erred in failing to excuse the breach of bond, whether the sentence imposed was manifestly excessive, and whether the Magistrate erred in not suspending the sentence for the subsequent offence. The central issue was the appropriate sentence for McGrath's second offence of driving while disqualified.

The Supreme Court of South Australia dismissed the appeal. The Court held that the breach of the bond was not trivial and that there were no proper grounds to excuse the breach. The Court also held that the sentence of seven weeks imprisonment was not manifestly excessive, given the nature and circumstances of the offence and its gravity. The Court further held that the Magistrate was precluded from suspending the sentence under s 96(3)(a) of the Sentencing Act 2017 (SA), as McGrath had breached the conditions of a suspended sentence within two years of the original offence.

The appeal was dismissed, and the sentence of seven weeks imprisonment was upheld.

Orders

Orders of the court

Held:

1. The learned Magistrate did not err in failing to excuse the breach of bond as the breach was not trivial nor did proper grounds exist to excuse the breach.

2. The sentence of seven weeks imprisonment for a subsequent offence of driving whilst disqualified was not manifestly excessive.

3. The learned Magistrate did not err in failing to properly exercise his discretion in not suspending the sentence as he was precluded from doing so pursuant to s 96(3)(a) of the Sentencing Act 2017 (SA).

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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