Nicholls v Police - [2003] SASC 303

NICHOLLS v POLICE
[2003] SASC 303
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the penalty imposed upon him in the Magistrates Court sitting at Christies Beach following his plea of guilty to a charge that on 4 July 2003 at Lonsdale without reasonable excuse he failed to comply with a term or condition of a bail agreement contrary to s 17(1) of the Bail Act 1985.
At the time he was dealt with for this offence he was also before the court on a charge that on 4 July 2003 at Dyson Road, Lonsdale, he drove a motor vehicle at 99 kilometres an hour in an 80 kilometre per hour speed zone, and that at the same date and place he drove whilst disqualified from holding or obtaining a driver’s licence. He pleaded guilty to those charges as well.
He was before the court on the same day as those offences were committed. He was represented by a solicitor, Mr Janson, who made submissions on his behalf. The magistrate there and then imposed penalties for all of the offences.
On the breach of bail the appellant was imprisoned for a period of 21 days. It is from that sentence that the present appeal is brought.
On the offences of speeding and drive disqualified the sentencing magistrate imposed one penalty only; namely a fine of $300.
As for the breach of bail, it appears that the appellant was released on home detention bail on 23 May 2003 pending his trial in the District Court on a number of dishonesty offences.
It was a condition of the bail that he not absent himself from an address at States Road, Onkaparinga Hills, except for remunerated employment, or for necessary medical or dental treatment, or for any other reason approved by a community corrections officer.
On the day in question at about 10.24 am he was detected driving a motor vehicle north on Dyson Road at Lonsdale at the speed to which I have referred. When stopped and questioned, he gave no explanation for his excessive speed.
Subsequent inquiries revealed that he was subject to the home detention bail condition to which I have referred.
I have had the benefit of affidavits from the police prosecutor Mr Dollard and also from Mr Janson.
According to the facts given by the prosecutor, the officer responsible for the supervision of the appellant’s home detention bail stated that earlier on that day, that is, 4 July 2003, she received a call from the appellant, during which she gave him permission to drive directly to an appointment with his solicitor Mr Vadasz. The appointment was believed to be at 2.00 pm The permission was conditional upon him driving by the most direct route from his home address to Mr Vadasz’s office and home again.
After the appellant had been detected and charged, inquiries made by the police with Mr Vadasz’s office revealed that there was no record of any appointment on that day for…

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.

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Details

Case: [2003] SASC 303
Decision Date: 27 August 2003

CaseChat Overview and Summary

In the matter of Nicholls v Police, the appellant, Mr Nicholls, appealed against the penalty imposed by the Magistrates Court at Christies Beach. He was convicted of breaching the conditions of his bail, driving at an excessive speed, and driving while disqualified. The appeal focused on the 21-day imprisonment term imposed for the bail breach. The appellant argued that the penalty was excessive and that the magistrate failed to consider a suspended sentence. The court needed to decide whether the penalty was manifestly excessive and if the magistrate adequately considered all sentencing options.

The primary legal issue was whether the 21-day imprisonment term for the bail breach was manifestly excessive. The court had to assess if the magistrate had erred in not considering a suspended sentence and if the penalty was appropriate considering the need for general deterrence. Additionally, the court examined if the appellant had demonstrated that the penalty was excessive in all circumstances.

The court held that the penalty imposed was not manifestly excessive. The magistrate, being experienced, was presumed to be aware of all sentencing options and had determined that a custodial sentence was appropriate due to the seriousness of the bail breach. The court reasoned that a suspended sentence would not be appropriate given the need for general deterrence. The appellant's extensive criminal history, including previous breaches of bail and parole, further supported the penalty. The appeal was dismissed, and the original penalty upheld.

The court's final order was that the appeal brought against the penalty imposed by the Magistrates Court was dismissed. The 21-day imprisonment term for the bail breach was confirmed as appropriate.

Orders