Miles v Police

Case [2009] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MILES v POLICE

[2009] SASC 181

Judgment of The Honourable Justice Kourakis

29 June 2009

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW

Appeal against sentence - appellant pled guilty to assault arising out of a "road rage" incident - Magistrate declined to record a conviction against the appellant upon the appellant entering into a bond to be of good behaviour for 18 months in the amount of $100, but proceeded to impose a period of driver's licence disqualification pursuant to s 168 of the Road Traffic Act 1961 - s 168 allows "a court that convicts a person" of an offence to impose a licence disqualification period - whether Magistrate erred in failing to provide adequate reasons - whether Magistrate erred in deciding not to record a conviction but to impose a licence disqualification penalty under s 168 - whether sentence manifestly excessive.

Held: Appeal allowed - ss 16 and 39 of the Criminal Law Sentencing Act 1988 which allow for the decision not to record a conviction against a person do not allow the sentencing Judge to then impose a penalty of licence disqualification pursuant to s 168 of the Road Traffic Act 1961 - the period of licence disqualification imposed by the Magistrate was manifestly excessive in the circumstances of the case - unnecessary to decide on the question of inadequate reasons.

Road Traffic Act 1961 (SA) s 168; Criminal Law Consolidation Act 1935 (SA) s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 9, s 15(1)(b), s 16, s 17, s 39, s 70E (5), s 70G (8); Offenders Probation Act 1913 (SA) s 4; Acts Interpretation Act 1915 (SA) s 30; Summary Procedure Act 1921 (SA) s 67, s 69, s 75; Magistrates Court Act 1991 (SA) s 5; District Court Act 1991 (SA) s 5, s 17, s 49; Supreme Court Act 1935 (SA) s 6, referred to.
House v The King (1936) 55 CLR 499, applied.
Hanley v Steel (1973) 5 SASR 242, distinguished.
Burgess v Boetefeur (1844) 7 Man & G 481; 135 ER 193; Cobiac v Liddy (1969) 119 CLR 257, discussed.
Papps v Police (2000) 77 SASR 210; Maxwell v The Queen (1996) 184 CLR 501; Vreeker v Police (2004) 144 A Crim R 544; Price v Police [2008] SASC 119; Coleman v Mayne [1966] SASR 404; S v Recorder of Manchester [1971] AC 481; R v Nam [1968] SASR 107; R v Brain (1999) 74 SASR 92; McNicholl v Tothill (1988) 47 SASR 134; McNair v McEvoy [1966] SASR 342; Hodgins v Police [2008] SASC 176; Hatton v Harris [1892] AC 547; R v Hodgkinson [1954] VLR 140; Griffiths v The Queen (1977) 137 CLR 293; Gray v Jones [1948] SASR 201;

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Details
AGLC
Miles v Police [2009] SASC 181
Case
[2009] SASC 181
Decision Date

CaseChat Overview and Summary

The appeal in the matter of Miles v Police was heard by the Supreme Court of South Australia. The appellant, Miles, appealed against his sentence after pleading guilty to an assault charge arising from a road rage incident. The Magistrate, in the Magistrates Court, decided not to record a conviction against Miles but imposed a period of driver's licence disqualification under section 168 of the Road Traffic Act 1961. Miles challenged the sentence on several grounds, including the Magistrate's failure to provide adequate reasons, the lack of power to impose a licence disqualification after deciding not to record a conviction, and the excessiveness of the sentence.

The legal issues before the Supreme Court were whether the Magistrate erred in not providing adequate reasons for the sentence, whether the Magistrate had the authority to impose a licence disqualification after choosing not to record a conviction, and whether the sentence was manifestly excessive. The Court examined sections 16 and 39 of the Criminal Law Sentencing Act 1988, which permit a decision not to record a conviction, and section 168 of the Road Traffic Act 1961, which allows a court that convicts a person to impose a licence disqualification. The Court needed to determine if the Magistrate had the power to impose a licence disqualification in the absence of a conviction and if the disqualification period was justified.

The Supreme Court allowed the appeal, holding that the Magistrate did not have the power to disqualify Miles from holding a licence under section 168 of the Road Traffic Act 1961 because she had decided not to record a conviction. The Court found that even if it was incorrect in its first finding, the period of licence disqualification was manifestly excessive in the circumstances. The Court did not need to address the issue of inadequate reasons because the primary ground for the appeal was successful.

The Supreme Court ordered that the appeal be allowed and that the sentence imposed by the Magistrate be set aside. The Court did not specify any particular sentence to replace the one set aside, leaving that decision to the Magistrates Court upon a new hearing.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals that sentence on the grounds that the Magistrate failed to provide adequate reasons, that she did not have the power to impose a licence disqualification once she had decided to not record a conviction, and in the alternative that the sentence is manifestly excessive. For the reasons that follow I would allow the appeal on the grounds that the Magistrate did not have the power to disqualify the appellant from holding a licence pursuant to s 168 of the RTA because she had proceeded by not recording a conviction, and on the further ground that, even if I am wrong on the first ground, the disqualification was, in any event, manifestly excessive.Facts and background The appellant was charged that on 26 May 2008, he committed assault by accosting the victim, Steev’n Andrew Jones, in a threatening manner contrary to s 20(3) of the Criminal Law Consolidation Act 1935. On 16 March 2009, in the Magistrates Court hearing, the appellant pled guilty to that charge. The Police Prosecutor then read a summary of the facts surrounding the incident, which had been agreed with the appellant’s counsel, Ms Nguyen. The relevant facts stated in that summary are as follows:At about 8:00am on Monday 26 May 2008, the accused was involved in a ‘road rage’ incident. He is alleged to have followed the victim’s vehicle for a distance, twice approaching the driver’s side door while stationary at traffic signals. The accused attempted to open the door and punched at the driver’s window causing the victim to fear that a physical assault would be carried out. Counsel for the appellant then made submissions as to penalty. She addressed the appellant’s personal circumstances, including the fact that he had no prior convictions and that he was involved in a motorbike accident five years earlier which had left him with serious injuries. Counsel informed the Court that the appellant had expressed remorse, and had written a letter of apology to the witness and the victim. As to the injuries sustained in the motorbike accident, counsel for the appellant tendered a report prepared by Dr Tony Davis, a psychiatrist who had been treating the appellant on a monthly basis since his accident, and who had prepared the report in the context of the appellant’s ongoing personal injury claim arising out of that accident. Dr Davis’ report of 2 February 2009 stated that:He has experienced recurrent anxiety and depression of mood, as well as a propensity for irritability, frustration and aggression.… Mr Miles has continued to experience symptoms of a chronic adjustment disorder with mixed emotional features. He also has ongoing problems related to personality function particularly in relation to impulse control and modulation of affect, which is indicative of some subtle form of organic mental disorder …I noted in particular the most recent neuropsychological assessment of Dr Michael Wood, in the report of 20 December 2007. I agree with his conclusion that Mr Miles suffered a mild to moderate closed head injury, that has been associated with significant psychological sequelae.

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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