Padjan v Police - [2010] SASC 334

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PADJAN v POLICE
[2010] SASC 334
Judgment of The Honourable Justice Gray
1 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal against sentence - the appellant pleaded guilty in the Mount Gambier Magistrates Court to the offence of driving whilst disqualified, and to the offence of failing to comply with a reasonable direction of a member of the police force; namely to submit to a breath analysis - conduct breached the terms of a good behaviour bond entered into with respect to a suspended term of imprisonment of 21 days - where Magistrate sentenced the defendant to a term of imprisonment of 56 days, reduced from 60 days on account of plea, for the offence of driving whilst disqualified - that sentence not suspended - where Magistrate on the charge of failing to comply with a police direction to submit to a breath analysis, fined the defendant $2000.00, and further disqualified the defendant from holding or obtaining a drivers licence for a period of four years - where two periods of imprisonment cumulative, resulting in total order of imprisonment of 77 days - whether error in the sentencing process.
Held: appeal allowed in part - the Magistrate failed to make an adequate reduction on account of the defendant’s contrition and remorse and plea of guilty, and failed to have adequate regard to the appellant's youth and changing circumstances - appellant resentenced - period of six weeks imprisonment imposed to be suspended on the appellant entering a three-year supervised good behaviour bond - in view of the personal circumstances of the appellant, the minimum statutory fine of $1500.00 in respect of the failure to comply with a police direction to submit to a breath analysis is appropriate - the Magistrate’s discretion to impose a four-year disqualification miscarried because he failed to have regard to the notice of immediate licence disqualification and the statutory regime governing the orders to be made in such a circumstance - appropriate order made.
Motor Vehicles Act 1959 (SA) s 91(5); Road Traffic Act 1961 (SA) s 47E(3), referred to.
Mill v Police [2007] SASC 253; Police v Lindblom [2009] SASC 168; Police v Clayton-Smith (2010) 107 SASR 261, considered.

PADJAN v POLICE
[2010] SASC 334
Magistrates Appeal
GRAY J:

This is an appeal against sentence.
Introduction
Mick Padjan, the defendant and appellant, pleaded guilty in the Mount Gambier Magistrates Court to the offence of driving whilst disqualified,[1] and to the offence of failing to comply with a reasonable direction of a member of the police force; namely to submit to a breath analysis.[2] The defendant’s offending conduct breached the terms of a good behaviour bond entered into with respect to a suspended term of imprisonment of 21 days. The Police…

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 Padjan v Police

Details

AGLC: Padjan v Police [2010] SASC 334
Case: [2010] SASC 334
Decision Date: 1 December 2010

CaseChat Overview and Summary

In Padjan v Police, the appellant appealed against the sentence imposed by the Mount Gambier Magistrates Court, where he had pleaded guilty to driving while disqualified and failing to comply with a police direction to submit to a breath analysis. The court was required to decide if there was an error in the sentencing process, particularly whether the Magistrate had adequately considered the appellant's contrition, remorse, plea of guilty, and his youth and changing circumstances. The court also needed to assess if the Magistrate had appropriately exercised discretion regarding the disqualification period for the driver's licence and the statutory regime.

The court found that the Magistrate failed to sufficiently consider the appellant's contrition, remorse, and the plea of guilty, and did not adequately weigh his youth and changing circumstances. The court held that the Magistrate's sentence of 56 days imprisonment, reduced from 60 days for the driving while disqualified offence, was not suspended, which was inappropriate. The court also noted that the Magistrate did not adequately consider the statutory regime governing the orders to be made for the failure to comply with a police direction to submit to a breath analysis, resulting in an excessive disqualification period for the driver's licence.

The appeal was allowed in part. The court set aside the order of imprisonment of 56 days for the offence of driving while disqualified and imposed a six-week imprisonment term, suspended on the appellant entering a three-year supervised good behaviour bond. The court also set aside the $2000 fine for the offence of failing to comply with a police direction to submit to a breath analysis, and in its place imposed the minimum statutory fine of $1500. The court further disqualified the appellant from holding or obtaining a driver's licence for a period of two years. The revocation of the suspended sentence remained in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The defendant spent a further three days in custody before his release. I have had regard to this three day period in reaching my decision to suspend the term of imprisonment to be imposed as a result of the present offending. Conclusion This appeal is allowed in part. In respect of the offence of driving whilst disqualified, I set aside the order of imprisonment of 56 days made by the Magistrate. I sentence the defendant to a term of imprisonment of six weeks. I exercise my discretion to suspend that sentence on the defendant’s entry into a three year supervised good behaviour bond. Otherwise, the orders imposed by the Magistrate remain. With respect to the offence of failing to comply with a direction of a Police officer requiring the defendant to submit to a breath analysis, I set aside the fine imposed by the Magistrate of $2000.00 and in lieu impose the minimum fine of $1500.00. I note that the defendant may be unable to pay this amount because of his poor financial circumstances, and that he may make application to the Court for appropriate relief. The defendant is disqualified from holding or obtaining a driver’s licence for a period of two years to commence on 23 June 2012. The order of the Magistrate revoking the suspended sentence remains.

Ratio Decidendi

Legal Principle Established

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