O'DONOGHUE v Police - [2007] SASC 169

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
O'DONOGHUE v POLICE
[2007] SASC 169
Judgment of The Honourable Justice Kelly (ex tempore)
10 May 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Appeal against sentence – appellant pleaded guilty to one offence of driving a motor vehicle with a prescribed concentration of alcohol in the blood contrary to s47B of the Road Traffic Act, and one offence of driving without a licence contrary to s47(1)(a) and (b) of the Motor Vehicles Act – magistrate recorded a conviction in respect of both offences – in respect of the Road Traffic Act offence, the magistrate fined the appellant $1,100 and ordered he be disqualified from holding a licence for 22 months – in respect of the Motor Vehicles Act offence the magistrate recorded a conviction and fined the appellant $250.00 – appellant appeals the penalties imposed for the Road Traffic Act offence – whether period of disqualification and amount of fine excessive – whether magistrate erred in not providing reasons – whether magistrate failed to take into account the period of two months licence disqualification already served by the appellant as a result of the automatic disqualification of his licence – HELD: failure to give reasons did not constitute an error of law in the circumstances of this case – the fine and disqualification period were within the upper range of penalties available to the magistrate –appeal dismissed.
Road Traffic Act 1961 s47B; Motor Vehicles Act 1959 s74(1)(a) & b; Criminal Law (Sentencing) Act 1988 s10, referred to.
Badari v Police [2003] SASC 149; Hodgson v Police [2001] SASC 35; Edwards v Police [2000] SASC 121, applied.
Powditch v Police [1988] SAS 6844, distinguished.
Police v Conway; Police v Parker [2006] SASC 186, considered.

O'DONOGHUE v POLICE
[2007] SASC 169
MAGISTRATES APPEAL
KELLY J

On 16 March 2007 the appellant pleaded guilty in the Adelaide Magistrates Court to two charges contrary to the Road Traffic Act 1961 and the Motor Vehicles Act 1959.
For the offence of driving a motor vehicle with a prescribed concentration of alcohol in the blood contrary to s 47B of the Road Traffic Act, the Magistrate recorded a conviction, fined the appellant $1,100 and ordered that he be disqualified from holding or obtaining a driver’s licence for a period of 22 months.
For the offence of driving without a licence, contrary to s 74(1)(a) and (b) of the Motor Vehicles Act 1959 the Magistrate recorded a conviction and fined the appellant $250.
The maximum penalty for the first offence, given that the appellant was a second offender, was a fine not less than $700 and not more than $1200 and disqualification from holding or obtaining a driver’s licence for a period not less than 12 months. The maximum fine for the second offence prescribed by the statute was $1250.
The circumstances of the offending were that the appellant was stopped in his…

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: [2007] SASC 169
Decision Date: 10 May 2007

CaseChat Overview and Summary

The appellant in this case, O'Donoghue, appealed against the sentence imposed by a magistrate following a conviction for two separate offences. O'Donoghue had pleaded guilty to driving a motor vehicle with a prescribed concentration of alcohol in the blood, in breach of section 47B of the Road Traffic Act, and to driving without a licence, in breach of section 47(1)(a) and (b) of the Motor Vehicles Act. The magistrate convicted O'Donoghue on both counts, imposing a fine of $1,100 and a 22-month disqualification from holding a licence for the Road Traffic Act offence, and a $250 fine for the Motor Vehicles Act offence. O'Donoghue appealed solely in relation to the sentence for the Road Traffic Act offence, arguing that the period of disqualification and amount of the fine were excessive. Additionally, the appellant contended that the magistrate had erred in not providing reasons for the sentence and had failed to consider the two-month period of disqualification already served by O'Donoghue due to the automatic disqualification of his licence.

The court examined the contention that the failure to provide reasons constituted an error of law, ultimately finding that it did not in the circumstances of this case. The court also considered the appellant's argument that the penalty imposed was excessive. It was determined that the fine and the disqualification period were within the upper range of penalties available to the magistrate and were therefore within the bounds of what could be considered a just outcome. The court held that the magistrate had not failed to take into account the period of disqualification already served by the appellant, as the two-month period was a result of the automatic disqualification, not a judicial decision. Thus, the court found no error in the magistrate's consideration of the sentence.

The appeal was dismissed by the court. The reasoning of the magistrate was upheld, and the penalties imposed were considered appropriate within the given circumstances. The court found no grounds for altering the sentence, and thus the original penalties were maintained.

Orders