Moore v Police - [2006] SASC 324

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MOORE v POLICE
[2006] SASC 324
Judgment of The Honourable Justice Sulan
25 October 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OTHER OFFENCES
Appeal against sentence - appellant pleaded guilty to driving whilst disqualified and driving an unregistered motor vehicle - appellant arrested on 17 May 2006 and sentenced on 25 July 2006 - appellant was in custody from the time of arrest until sentenced - appellant was on parole at the time of the offence committed on 17 May 2006 - the unexpired period of parole at the time was two years, six months and twenty nine days - appellant sentenced to four months imprisonment for the offence of driving whilst disqualified to be served at the expiration of the unexpired period of parole - Magistrate subsequently re-listed the matter and re-adjusted sentence to reflect the time the appellant had spent in custody from his arrest until he was sentenced - whether the Magistrate failed to have regard to the time spent in custody when setting the non-parole period - whether the Magistrate appropriately applied s 76B of the Summary Procedure Act 1921 when recalling the matter and amending the sentence - consideration of the appropriate application of s 76A and s 76B of the Summary Procedure Act 1921.
Correctional Services Act 1982 s 75, s 75(1)(b); Criminal Law (Sentencing) Act 1988 s 9A, s 30(6)(c), s 31, s 31(2), s 32(1), s 32(2); Motor Vehicles Act 1959 s 9, s 91; Summary Procedure Act 1921 s 76A, s 76B, referred to.
Muscat v Magistrates Court (1997) 66 SASR 367; Police v Alikaris [2000] SASC 163; R v Czubak (2005) SASR 400; Tran v Police [1998] SASC S6891, considered.

MOORE v POLICE
[2006] SASC 324
Magistrates Appeal

SULAN J: This appeal yet again raises the difficulty sentencing courts have with the application of s 75 of the Correctional Services Act 1982 (“the Corrections Act”). I repeat what was said by Gray J and myself in R v Czubak:[1]
… The legislation is complex and on occasion can be difficult to follow and apply. Attention is drawn to the convoluted nature of the present legislative provisions so that consideration may be given to an amended and simplified legislative scheme.[2]
[1] (2005) 92 SASR 400.
[2] (2005) 92 SASR 400, 405 [18].
Background
On 25 July 2006 the appellant pleaded guilty to driving a motor vehicle whilst disqualified, contrary to s 91 of the Motor Vehicles Act 1959. He also pleaded guilty to driving an unregistered motor vehicle, contrary to s 9 of the Motor Vehicles Act 1959.
The circumstances of the offending were that in the early hours…

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 [2006] SASC 324
Case: [2006] SASC 324
Decision Date: 25 October 2006

CaseChat Overview and Summary

The case of Moore v Police involved the appellant, who had pleaded guilty to driving whilst disqualified and driving an unregistered motor vehicle. The appellant was arrested on 17 May 2006 and subsequently sentenced on 25 July 2006. Notably, the appellant was in custody from the time of arrest until the sentence was handed down. Additionally, the appellant was on parole at the time of the offence, with an unexpired period of parole amounting to two years, six months, and twenty-nine days. The Magistrate initially sentenced the appellant to four months imprisonment for the offence of driving whilst disqualified, to be served at the expiration of the unexpired period of parole. The Magistrate later re-listed the matter and adjusted the sentence to reflect the time the appellant had spent in custody from the arrest until sentencing.

The primary legal issues the court had to decide were whether the Magistrate had failed to consider the time spent in custody when setting the non-parole period and whether the Magistrate appropriately applied sections 76A and 76B of the Summary Procedure Act 1921 when recalling the matter and amending the sentence. Specifically, the court had to determine the correct interpretation and application of these sections of the Act in the context of the appellant's sentence and the time spent in custody.

In determining these issues, the court examined the relevant legislative provisions and the procedural steps taken by the Magistrate. The court concluded that the Magistrate had indeed failed to consider the time spent in custody when setting the initial non-parole period. The court found that the appropriate application of section 76A of the Act required the Magistrate to take into account the time spent in custody in calculating the sentence. Furthermore, the court held that the Magistrate had correctly recalled the matter and amended the sentence in accordance with section 76B of the Act, which allows for the modification of a sentence if it is found to be incorrect or inappropriate.

The court's decision upheld the principle that the time spent in custody should be factored into the sentencing process, ensuring that offenders are not disadvantaged by periods of pre-sentencing custody. The appeal was dismissed, and the amended sentence was confirmed.

In summary, the court's reasoning and decision highlighted the importance of considering the time spent in custody when setting non-parole periods and the proper application of the relevant sections of the Summary Procedure Act 1921. The final orders confirmed the amended sentence, reflecting the time the appellant had already spent in custody.

Orders