SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PANUCCIO v POLICE
[2016] SASC 7
Judgment of The Honourable Justice Vanstone
12 February 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - GENERALLY
Application for extension of time within which to appeal against sentence - applicant pleaded guilty to serious traffic offences in the Magistrates Court and received a custodial sentence and licence disqualification for 11 years - whether extension of time for seven years was justified - whether licence disqualification imposed was manifestly excessive - whether Magistrate failed to consider applicant's prospects for rehabilitation - whether it was open to the Magistrate to order disqualification 'until further order' under s 168 of the Road Traffic Act.
Held: Application refused. The total disqualification period imposed was not out of proportion to the nature of the offending. The Magistrate was correct in determining to impose fixed terms of disqualification. It is not open to the court to order licence disqualifications until further order for offences which impose mandatory minimum disqualification periods. The proposed appeal would fail on the merits.
Road Traffic Act 1961 (SA) s 46, s 47B, s 168, s 169A; Criminal Law Consolidation Act 1935 (SA) s 19AC, s 144(1), s 85(3), referred to.
Boehm v Milham (1980) 24 SASR 98, applied.
R v Rigney [2001] SASC 426, not followed.
Hopkins v Conn (1979) 23 SASR 470; Police v Nowak (2000) 76 SASR 551, considered.
PANUCCIO v POLICE
[2016] SASC 7Magistrates Appeal: Criminal
VANSTONE J: Luigi Panuccio applies for an extension of time within which to appeal against a sentence imposed on 21 August 2008 by then Magistrate Mr Harris SM for offending against the Road Traffic Act 1961 (SA) and the Criminal Law Consolidation Act 1935 (SA). The sentence comprised a term of immediate imprisonment as well as driver’s licence disqualification for 11 years. It is upon the order of disqualification that this proposed appeal is focussed. The applicant requires an extension of some seven years.
Background
It is convenient to set out in tabular form details of the offending which the applicant acknowledged.
Offence date Offence Section Maximum Penalty Plea date 15.07.2006 Driving in a manner dangerous Road Traffic Act s 46 Imprisonment for 2 years
Minimum disqualification of 3 years
21.04.2008 12.01.2007 Driving in a manner dangerous Road Traffic Act s 46 Imprisonment for 2 years
Minimum disqualification of 3 years
23.07.2008 08.08.2007 Unlawful possession Summary Offences Act s 41(1) $10,000 or imprisonment for 2 years 23.07.2008 05.12.2007 Driving in a manner dangerous to escape police pursuit (at Elizabeth Downs) Criminal Law Consolidation Act s 19AC Imprisonment for 3 years
Minimum disqualification of 2 years
23.07.2008 Driving in a manner dangerous (at Elizabeth East)
Road Traffic Act s 46
Continue reading Panuccio v Police
Sign in free to access the full text
- AGLC
- Panuccio v Police [2016] SASC 7
- Case
- [2016] SASC 7
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to decide included whether the applicant's proposed appeal had any merit, whether the extension of time for seven years was justified, whether the disqualification imposed was manifestly excessive, and whether the Magistrate had failed to consider the applicant's prospects for rehabilitation. Additionally, the court needed to determine whether it was open to the Magistrate to order a disqualification 'until further order' under s 168 of the Road Traffic Act.
The court held that even if the proposed appeal had some merit, there would have been difficulty in justifying an extension of time within which to appeal of the length required. The court concluded that the proposed appeal would fail on the merits and, therefore, it was not necessary to further discuss that question. The court refused the application for an extension of time within which to appeal. The court also found that the applicant's claim that the lack of a driver's licence impeded his employment and made it difficult to see his children did not constitute reasonable cause for postponing the commencement of the disqualification under s 169A of the Road Traffic Act. The court held that the Magistrate had considered the applicant's prospects for rehabilitation and that the disqualification imposed was not manifestly excessive. The court also held that it was open to the Magistrate to order a disqualification 'until further order' under s 168 of the Road Traffic Act.
The Supreme Court of South Australia refused the application for an extension of time within which to appeal against the sentence imposed by the Magistrates Court. The court held that the proposed appeal would fail on the merits and that the applicant's claim that the lack of a driver's licence impeded his employment and made it difficult to see his children did not constitute reasonable cause for postponing the commencement of the disqualification. The court also held that the Magistrate had considered the applicant's prospects for rehabilitation and that the disqualification imposed was not manifestly excessive.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The applicant claims that not having a driver’s licence impedes his employment, which is the management of his mother’s various rental properties. In addition, there is difficulty in seeing his three children, who live in Port Pirie. He claims that it was not until he attended at the Holden Hill Magistrates Court in 2015 to apply for the return of his driver’s licence that he discovered he was disqualified for 11 years. Consideration It is helpful to first determine what power is utilised when ordering that periods of disqualification are to be served either concurrently or consecutively. I set out s 169A of the Road Traffic Act (“the Act”). 169A—Power to postpone commencement of disqualification If, under this Act or any other Act, a court orders that a convicted person be disqualified from holding or obtaining a driver's licence, the court may, if it is satisfied that reasonable cause exists for doing so, order that the disqualification take effect from a day or hour subsequent to the making of the order. It can be seen that s 169A of the Act gives a court power to order that terms of licence disqualification are to be served consecutively where reasonable cause exists for so doing. This power is to be exercised in accordance with proper sentencing principles: Boehm v Milham (1980) 24 SASR 98 at 104 per King CJ, Wells J and Williams AJ agreeing. The court usually orders that the periods are to run consecutively only where the relevant offences are separated in time and place: Hopkins v Conn (1979) 23 SASR 470. The very terms of s 169A suggest that in the usual case the disqualification period will commence on the day of the order. In Police v Nowak (2000) 76 SASR 551, the Full Court considered the question of concurrency in the context of the respondent’s commission of two separate offences of driving with the prescribed concentration of alcohol. Each offence required the sentencing court to impose a penalty which included licence disqualification for not less than a certain period, there, 12 months and six months respectively. Counsel for the police, Mr M Walter, conceded that the Magistrate had the power to order that both terms start on the day penalty was imposed and that they therefore run concurrently. That concession was made despite the provisions of s 47B(3)(b) stipulating that the disqualification prescribed could not be reduced or mitigated in any way in the absence of a finding – on the basis of evidence on oath – that the offence was trifling. Doyle CJ (with whom Debelle J agreed) and Bleby J were prepared to act on the concession, although neither wished to be taken as agreeing with it. Bleby J observed that s 47B(3)(b) of the Act would normally constitute “reasonable cause” (under s 169A) for ordering that periods of disqualification run consecutively. Debelle J specifically agreed with Bleby J’s reasoning on this point. In the present appeal a provision comparable to s 47B(3)(b) is applicable, that being s 46(3)(b). Its terms are:46—Reckless and dangerous driving...(3) If a court convicts a person of an offence against subsection (1), the following provisions apply:...(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.