PICK v Police - [2013] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PICK v POLICE
[2013] SASC 184
Judgment of The Honourable Justice Kelly
25 November 2013
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
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - OTHER FACTORS - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence - appellant charged on two complaints with two identical sets of offences committed within 10 days of one another, driving disqualified, driving a defective vehicle and driving an unregistered vehicle - for first driving disqualified offence Magistrate imposed an 18 month good behaviour bond with conditions - for second driving disqualified offence Magistrate disqualified the appellant’s driver’s licence for three months and sentenced him to seven days imprisonment suspended upon entry into the good behaviour bond - for all other offences, appellant was convicted without penalty - appellant filed notices of appeal nearly one year after sentence.
Two grounds of appeal – first, Magistrate failed to take into account s 19C of the Criminal Law (Sentencing) Act 1988 (SA), second, sentence of seven days imprisonment and disqualification of licence for three months manifestly excessive.
Held:
(1) Extension of time to file the notices of appeal refused. Insufficient merit in grounds of appeal and no prejudice to appellant identified.
(2) In any event sentences imposed by the Magistrate were not crushing and do not amount to inappropriate double punishment.
(3) The Magistrate must have taken into account the matters he was required to under s 19C of the Criminal Law (Sentencing) Act 1988 (SA). The sentences as a whole are not explicable on any other basis.
(4) Appeal dismissed.
Motor Vehicles Act 1959 (SA) s 9, s 91; Road Traffic Act 1961 (SA) s 145; Criminal Law (Sentencing) Act 1988 (SA) s 19C, referred to.
Sadler v Crossman (1988) 47 SASR 331; Khammash v Police (1999) 29 MVR 561; Peart v Police [2003] SASC 274; R, J v Police [2006] SASC 153; Clancy v Haynes (1994) 179 LSJS 196; Police v Warren [2000] SASC 285, discussed.

PICK v POLICE
[2013] SASC 184
Magistrates Appeal: Criminal
KELLY J.

This is an appeal against two sentences imposed by a Magistrate on 10 September 2012. The appellant appeared for sentence before Magistrate Harrap in relation to three complaints.
The first complaint alleged that on 12 January 2011, the appellant drove a defected vehicle without L-plates displayed, without an accompanying licenced driver, and without being able to produce his permit to drive. These offences were committed nine days after identical offending committed on 3 January 2011. For these offences the sentencing Magistrate convicted on each count but imposed no penalty. The sentence imposed for this set of offending is not the subject of the appeal, but sheds some light on…

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 PICK v Police

Details

AGLC: PICK v Police [2013] SASC 184
Case: [2013] SASC 184
Decision Date: 25 November 2013

CaseChat Overview and Summary

The appellant, PICK, appealed against his sentence before the Supreme Court of South Australia. He was charged with multiple driving offences, including driving while disqualified and driving a defective and unregistered vehicle. The offences were committed within a short period. The Magistrate imposed an 18-month good behaviour bond with conditions for the first offence of driving while disqualified and, for the second offence, disqualified the appellant's driver's licence for three months and sentenced him to seven days imprisonment suspended upon entry into the good behaviour bond. The appellant filed his notices of appeal almost a year after the sentence was handed down.

The court had to determine whether the Magistrate erred in failing to consider section 19C of the Criminal Law (Sentencing) Act 1988 (SA) and whether the sentence imposed for the second driving disqualified offence was manifestly excessive. The court also had to consider whether the appeal was filed within the appropriate timeframe and if any late filing could be excused.

The Supreme Court found that the Magistrate did not err in failing to consider section 19C as it did not apply to the appellant's circumstances. The court also held that the sentence was not manifestly excessive, taking into account all relevant factors, including the appellant's previous convictions and the seriousness of the offences. The court found that the appellant's delay in filing the appeal was unreasonable, but given the significant issue of the sentence being manifestly excessive, the court exercised its discretion to hear the appeal. The appeal was dismissed.

The Supreme Court dismissed the appeal and affirmed the sentence imposed by the Magistrate.

Orders