MCTERNAN v Police - [2009] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCTERNAN v POLICE
[2009] SASC 78
Reasons for Decision of The Honourable Justice Kelly
27 March 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR - TEST
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY
Appeal against sentence and conviction - appellant pleaded guilty to one count of driving whilst under the influence of alcohol and one count of aggravated driving without due care - on the first count appellant was sentenced to four weeks imprisonment and licence disqualification for eighteen months - on the second count he was sentenced to two months imprisonment and a licence disqualification of six months - sentences of imprisonment suspended upon the appellant entering into a bond to be of good behaviour for three years - whether the two offences were duplicitous - whether the magistrate erred in failing to take into account the two month licence disqualification appellant had already served.
Held: appeal against conviction dismissed - appeal against sentence allowed - plea of autrefois convict is not available on the complaint - the offences of driving whilst under the influence and aggravated driving without due care are not duplicitous - sentences of imprisonment and length of licence disqualifications were manifestly excessive - appellant sentenced afresh on both counts to a fine of $1800 and a total period of sixteen months licence disqualification.
Road Traffic Act 1961 s 45, s 47(1)(a), s 47B, s 47IAA(9), referred to.
Arthur v Police (2008) 101 SASR 529, distinguished.
R v O'Loughlin; Ex Parte Ralphs (1971) 1 SASR 219, discussed.
Carr v Western Australia (2007) 232 CLR 138, considered.

MCTERNAN v POLICE
[2009] SASC 78
Magistrates Appeal
Kelly J

The appellant appealed against a conviction and sentence imposed in the Mount Gambier Magistrates Court on 7 May 2008.
The appellant originally filed a notice of appeal on 15 May 2008 appealing against the sentence only. At the hearing of the appeal the appellant sought permission to amend the notice of appeal in order to incorporate an appeal against conviction as well.
On 7 May 2008 the appellant was convicted on his plea of guilty to one count of driving a motor vehicle whilst under the influence of alcohol contrary to Section 47(1)(a) of the Road Traffic Act 1961 (‘the Act’), one count of an aggravated offence of driving a motor vehicle without due care contrary to Section 45 of the Act and one count of failing to give his name and address to another driver after being involved in a motor vehicle crash contrary to Rule 287 of the Australian Road Rules. Another count of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to Section 47B (1)(a) of…

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 MCTERNAN v Police

Details

AGLC: MCTERNAN v Police [2009] SASC 78
Case: [2009] SASC 78
Decision Date: 27 March 2009

CaseChat Overview and Summary

In the matter of McTernan v Police, the appellant was convicted of driving under the influence of intoxicating liquor and aggravated driving without due care. The appellant appealed against both his sentence and conviction. The appellant was sentenced to four weeks imprisonment and eighteen months licence disqualification for driving under the influence, and two months imprisonment and a six-month licence disqualification for aggravated driving without due care. The sentences were suspended on the condition that the appellant enter into a bond to be of good behaviour for three years. The appellant argued that the sentences were excessive and disproportionate, and that the magistrate had failed to take into account the two-month licence disqualification he had already served.

The court was required to determine whether the two offences were duplicitous and whether the magistrate erred in failing to take into account the two-month licence disqualification the appellant had already served. The court also needed to decide whether the sentences were manifestly excessive and disproportionate.

The court held that the plea of autrefois convict was not available on the complaint, and that the offences of driving whilst under the influence and aggravated driving without due care were not duplicitous. The court found that the sentences of imprisonment and length of licence disqualifications were manifestly excessive, and that the magistrate had erred in failing to take into account the two-month licence disqualification the appellant had already served. The court allowed the appeal against sentence and sentenced the appellant afresh on both counts to a fine of $1800 and a total period of sixteen months licence disqualification. The appeal against conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appeal against sentence was primarily based on the submission that the imposition of terms of imprisonment, whether in relation to count 1 or count 3, was excessive and the length of the disqualification imposed was also manifestly excessive. It was also contended that the sentencing magistrate had erred by failing to observe that the appellant had already served a period of approximately two months disqualification by virtue of the mandatory disqualification provisions under s 47IAA(9) of the Act. The appellant submitted that the combination of these circumstances was such that the overall sentence imposed by the magistrate was unduly harsh and disproportionate to the appellant’s offending. Background The appellant was originally charged with four offences under the Act: the offence of driving under the influence, exceeding the prescribed concentration of alcohol, aggravated due care and failing to comply with the duties of a driver after a crash. The charges arose out of an episode of driving behaviour on 9 March 2008 on the Riddoch Highway in the South East. The appellant had earlier attended a rodeo at Keith and was driving home at about 2.20 am in the morning. There were other vehicles on the highway, in particular one that was travelling at the speed limit of 110 kilometres per hour. The appellant overtook that vehicle at a speed of approximately 130 kilometres per hour and in doing so collided with the side of the vehicle. Despite having sideswiped the vehicle and being aware of the collision, the appellant chose to drive on and accelerated at speeds of up to 150 kilometres per hour. The police were called and the appellant was eventually stopped and charged by the police with the four offences. At the time of his apprehension by the police he swayed backwards and staggered into the side of the utility he had been driving. The police formed the opinion that he was plainly under the influence of alcohol. Even though the police were aware at that time, that the appellant was deaf and had a speech problem, the arresting police officer formed the view that his speech was more slurred than usual and more difficult to understand. A breath analysis test conducted by the police revealed a blood alcohol concentration of 0.183 grams per 100 millilitres of blood. At the date of the offending the appellant was 23 years old and had no relevant prior convictions. A report from a psychologist of Health Services Australia was tendered before the magistrate. That report confirmed that the appellant suffered a severe intellectual disability and that he is virtually unemployable. It also confirmed that in addition to his severe intellectual disability he had some social and behavioural difficulties which further impacted on his ability to hold employment in any capacity. The magistrate accepted that the appellant’s disability impacted upon his decision to drive. However, he took the view that the appellant’s offending was very serious as it represented a grave risk to the safety of other people on the road.

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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