Miles v Police - [2012] SASC 69

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MILES v POLICE
[2012] SASC 69
Judgment of The Honourable Chief Justice Doyle (ex tempore)
24 April 2012
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - GENERALLY
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS
Appeal against a sentence imposed by the Magistrate’s Court – the appellant plead guilty to driving his motor vehicle at a speed of 122 kilometres per hour in a 110 kilometre per hour zone – the appellant had previously expiated a number of driving offences to the point that he was liable to be disqualified from holding or obtaining a driver’s licence for a period of three months by operation of s 98BC(1) of the Motor Vehicles Act 1959 (SA) (the MVA) – the appellant avoided that result by electing, pursuant to s 98BE(2) of the MVA, to accept as a condition of his licence that he be of good behaviour for a period of 12 months – if the appellant incurred two or more demerit points while subject to that condition, he would be disqualified from holding or obtaining a driver’s licence for a period of six months – the appellant had already lost one of the two points – the Magistrate exercised her discretion to record a conviction – the Magistrate declined to find that the offence was trifling, or that any other proper cause existed to reduce the number of demerit points, in exercise of the power conferred by s 98B(4) of the MVA – the appellant incurred a demerit point and his driver’s licence was suspended for a period of six months.
The issues on appeal were: (1) whether the Magistrate should have exercised her power under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to not record a conviction; and (2) whether, on the basis of the evidence before the Magistrate, she should have been satisfied that the offence was trifling or that some other “proper cause” existed to reduce the number of demerit points.
Held: (1) s 16(a) of the Sentencing Act was not satisfied because it was not unlikely that the appellant would commit a further speeding offence – s 16(b) of the Sentencing Act was also not satisfied as even though the appellant was of general good character, the offence was not trifling and there were no extenuating circumstances; (2) considering the circumstances of the offence and the circumstances of the offender, no “proper cause” existed to reduce the demerit points.
Appeal dismissed.
Motor Vehicles Act 1959 (SA) s 98B(1), s 98B(4), s 98BC(1), s 98BE(2) and s 98BE(2a); Criminal Law (Sentencing) Act 1988 (SA) s 16 and s 16(b)(i), referred to.
Holness v Police [2010] SASC 314; (2010) 56 MVR…

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 Miles v Police

Details

AGLC: Miles v Police [2012] SASC 69
Case: [2012] SASC 69
Decision Date: 24 April 2012

CaseChat Overview and Summary

Miles appealed against the sentence imposed by the Magistrates Court, where he had pleaded guilty to driving his motor vehicle at a speed of 122 kilometres per hour in a 110 kilometre per hour zone. The appellant had a history of driving offences, which placed him at risk of being disqualified from holding or obtaining a driver’s licence for three months under section 98BC(1) of the Motor Vehicles Act 1959 (SA). However, he avoided this outcome by electing to accept good behaviour as a condition of his licence for a period of 12 months, pursuant to section 98BE(2) of the MVA. Under this condition, if the appellant incurred two or more demerit points, he would face a six-month disqualification from holding or obtaining a driver’s licence. The appellant had already lost one of the two points when he committed the current offence.

The court had to determine whether the Magistrate exercised her discretion correctly in recording a conviction and whether she declined to find that the offence was trifling, or that any other proper cause existed to reduce the number of demerit points, in exercise of the power conferred by section 98B(4) of the MVA. The court held that the Magistrate had exercised her discretion correctly in recording a conviction and that there was no error in finding that the offence was not trifling, or that any other proper cause existed to reduce the number of demerit points. The appellant incurred a demerit point, and his driver’s licence was suspended for a period of six months.

The appeal was dismissed. The court held that the Magistrate had exercised her discretion correctly in recording a conviction and that there was no error in finding that the offence was not trifling, or that any other proper cause existed to reduce the number of demerit points. The appellant incurred a demerit point, and his driver’s licence was suspended for a period of six months.

Orders