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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- AGLC
- Miles v Police [2009] SASC 181
- Case
- [2009] SASC 181
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CaseChat Overview and Summary
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.
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