Moore v Police - [2013] SASC 30

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MOORE v POLICE
[2013] SASC 30
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
22 February 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
The appellant pleaded guilty in the Magistrates Court to driving in a manner dangerous contrary to s 46 of the Road Traffic Act 1961 (SA) - the Magistrate sentenced the appellant to three months imprisonment, reduced from four months imprisonment by way of his plea of guilty on the first day of trial - the Magistrate also disqualified the appellant from holding or obtaining a driver's licence for 12 months - at the time of sentencing the appellant was serving a term of imprisonment of one year, four months and two weeks with a non-parole period of five months - the Magistrate ordered that the sentence imposed by her be served at the expiration of that term and extended the appellant's non-parole period by one month - the appellant appeals against the sentence of imprisonment imposed by the Magistrate.
(1) Whether permission granting an extension of the time in which to appeal ought to be made - (2) whether the Magistrate considered the short duration of the offending, the low speed at which the appellant was driving and the lack of embarrassment to other vehicles - (3) whether the Magistrate failed to have regard to s 11 of the Criminal Law (Sentencing) Act 1988 (SA) - (4) whether the sentence was manifestly excessive in the circumstances.
Held: appeal dismissed - (1) an extension of time in which to appeal is granted to 10 December 2012 when the notice was filed - (2) the Magistrate expressly took account of the appellant's low driving speed - it is implicit in the Magistrate's remarks that she had in her mind the matters of duration and lack of embarrassment - (3) the Magistrate expressly turned her mind to s 11 of the Criminal Law (Sentencing) Act 1988 (SA), although she did not expressly mention the section itself - (4) the sentence is relatively severe for an offence of this kind, however, I am not persuaded that it is manifestly excessive.
Road Traffic Act 1961 (SA) s 46; Criminal Law (Sentencing) Act 1988 (SA) s 11, referred to.
The Queen v Reiner (1974) 8 SASR 102, considered.

MOORE v POLICE
[2013] SASC 30
Magistrates Appeal

KOURAKIS CJ (ex tempore): On 24 October 2012, the appellant, Mr Moore, pleaded guilty in the Magistrates Court to driving in a manner dangerous, contrary to s 46 of the Road Traffic Act 1961 (SA), on 20 December 2011 at Mawson Lakes. The Magistrate sentenced Mr Moore to three months imprisonment. The Magistrate indicated that, but for his plea of guilty, she would have sentenced…

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 Moore v Police

Details

AGLC: Moore v Police [2013] SASC 30
Case: [2013] SASC 30
Decision Date

CaseChat Overview and Summary

The appellant in this case, Mr Moore, appealed against the sentence of imprisonment imposed by the Magistrate for dangerous driving under the Road Traffic Act 1961 (SA). The appellant had pleaded guilty to the offence, which occurred when he drove his car in a dangerous manner following an argument with his girlfriend, driving on the wrong side of the road and onto the footpath where his girlfriend was walking. The Magistrate sentenced the appellant to three months imprisonment, reduced from four months due to his guilty plea on the first day of trial, and disqualified him from holding or obtaining a driver's licence for 12 months. The sentence was to be served at the expiration of the appellant's existing term of imprisonment, extending his non-parole period by one month.

The legal issues before the court were whether the Magistrate had considered the short duration of the offending, the low speed at which the appellant was driving, and the lack of embarrassment to other vehicles. The appellant also argued that the Magistrate failed to have regard to s 11 of the Criminal Law (Sentencing) Act 1988 (SA) and that the sentence was manifestly excessive. The court found that the Magistrate had taken into account the relevant factors, including the appellant's low driving speed and the risk posed to his girlfriend, and had considered the increased maximum penalty for dangerous driving. The court held that while the sentence was relatively severe for an offence of this kind, it was not manifestly excessive given the real risk of harm posed by the appellant's driving.

The appeal was dismissed, and the sentence of imprisonment imposed by the Magistrate was upheld. The court granted an extension of time in which to appeal, and the sentence was to be served at the expiration of the appellant's existing term of imprisonment, extending his non-parole period by one month. The Magistrate's decision to impose a penalty of imprisonment for the dangerous driving offence was considered appropriate given the gravity of the circumstances and the need for effective deterrence.

Orders