Peart v Police

[2003] SASC 274

PEART v POLICE
[2003] SASC 274

Magistrates Appeal:  Criminal

1. PERRY J  (ex tempore)     This is an appeal against the penalty imposed upon the appellant following his plea of guilty in the Magistrates Court sitting at Adelaide to a charge that on 8 March 2003 at Glengowrie he drove a motor vehicle on Diagonal Road whilst disqualified from holding or obtaining a driver’s licence.

2. After recording a conviction, the sentencing magistrate imposed a penalty of 21 days imprisonment, which was suspended upon the entry by the appellant into a bond in the sum of $100 to be of good behaviour for a period of 12 months.

3. Separately, the sentencing magistrate ordered that the appellant be disqualified from holding or obtaining a driving licence for six months, effective from the day following his appearance in the Magistrates Court, that is from 18 June 2003.

4. In his notice of appeal, the appellant advances one ground only, namely that the sentence was manifestly excessive.

5. I have had the benefit of an affidavit from the prosecutor who presented the matter in the court below. According to his affidavit, he informed the magistrate that at about 12.32 am on the morning in question, the appellant was observed driving with two male companions on Diagonal Road at Glengowrie. His vehicle was stopped due to his manner of driving, which is otherwise unexplained.

6. When asked to step out of the car and produce his licence, the appellant told the officer that his licence had been disqualified by a court order which, not surprisingly, was quickly confirmed.

7. The arresting officers reported that the appellant was polite, remorseful and co-operative when he was arrested.

8. It appears that the licence disqualification was imposed in December 2002 with respect to offences of driving at a dangerous speed and driving at speed while holding a provisional licence, the offence date being 13 September 2002. The defendant was sentenced to 52 hours of community service and was disqualified from driving for six months, commencing on 12 December 2003.

9. It follows that the offence now in question was committed a little less than halfway through the period of disqualification which was then ordered.

10. The sentencing magistrate in the present matter gave short sentencing remarks in which he noted that the appellant was aged 18, and had come down to the city after leaving his family, who resided in the country. He had found accommodation and was about to start a new job.

11. Ms McGrath, who appeared for the appellant in the court below and also on the hearing of the appeal, has submitted an affidavit in which she explained the submissions which she made to the sentencing magistrate and which she repeated before me.

12. The first point which she took was that the remarks on sentence did not indicate why the magistrate chose to adopt the sentencing option which he did, and what discount the appellant was allowed by reference to his plea of guilty. She added during the course of argument that the magistrate…