Pitt v Police - [2009] SASC 244

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PITT v POLICE
[2009] SASC 244
Judgment of The Honourable Justice Kelly (ex tempore)
12 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING
Appellant pleaded guilty in the Elizabeth Magistrates Court to causing harm by dangerous driving contrary to s 19A of the Criminal Law Consolidation Act 1935 - Magistrate sentenced the appellant to fifteen months imprisonment with a non-parole period of eight months - sentence was suspended upon the appellant entering into a good behaviour bond for three years - appellant was disqualified from holding driver's licence for four years - appeal against the sentence - whether the Magistrate took into account irrelevant considerations and failed to take into account relevant considerations - whether the Magistrate erred in not disqualifying himself from sentencing the appellant when there was an appearance of bias - whether the sentence was manifestly excessive - whether Magistrate did not give adequate consideration to s 11 of the Criminal Law (Sentencing) Act 1988 - appellant was aged eighteen years - appellant entered a plea of guilty at earliest opportunity - no aggravating elements like alcohol or hoon driving - appellant displayed remorse.
Held: No evidence to support the submission that the Magistrate did not bring an impartial mind to the sentencing process - Magistrate was entitled to take into account all circumstances surrounding appellant's driving at the time of the offence - Magistrate justified in imposing a sentence of imprisonment - head sentence held to be manifestly excessive - appeal allowed - Magistrate's sentence set aside - appellant re-sentenced to six months imprisonment, suspended upon appellant entering into a bond of $20 to be of good behaviour for two years - appellant's driver's licence suspended for two years.
Criminal Law Consolidation Act 1935 (SA) S 19A; Criminal Law (Sentencing) Act 1988 (SA) s 7, s 7A, s 10, s 11, referred to.
R v Goodall (2006) 169 A Crim R 440; Chapman v Police [2009] SASC 196, applied.

PITT v POLICE
[2009] SASC 244
Magistrates Appeal
KELLY J (ex-tempore)

On 10 February 2009 the appellant entered a plea of guilty to one count of causing harm by dangerous driving contrary to Section 19A of the Criminal Law Consolidation Act 1935. On 22 May 2009 sentencing submissions took place in the Elizabeth Magistrates Court and later that day the Magistrate sentenced the appellant to fifteen months imprisonment with a non-parole period of eight months. The sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of three years. She was disqualified from holding or obtaining a licence to drive for a period of four years from 22 May 2009.
The appellant has appealed against the sentence. The notice of appeal filed contains nine separate grounds of…

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 Pitt v Police

Details

AGLC: PITT v Police [2009] SASC 244
Case: [2009] SASC 244
Decision Date: 12 August 2009

CaseChat Overview and Summary

The appellant, Pitt, appealed against his sentence for causing harm by dangerous driving, which he pleaded guilty to in the Elizabeth Magistrates Court. The original sentence involved fifteen months imprisonment with a non-parole period of eight months, suspended upon the appellant entering into a good behaviour bond for three years, and a disqualification from holding a driver's licence for four years. The appeal raised several issues including whether the Magistrate took into account irrelevant considerations and failed to take into account relevant considerations, whether there was an appearance of bias warranting the Magistrate's recusal, whether the sentence was manifestly excessive, and if the Magistrate adequately considered section 11 of the Criminal Law (Sentencing) Act 1988. Pitt argued that he was eighteen years old, pleaded guilty early, showed remorse, and there were no aggravating factors like alcohol or hoon driving.

The court examined the arguments raised by Pitt and found that there was no evidence suggesting the Magistrate did not approach the sentencing with an impartial mind. The court held that the Magistrate was entitled to consider all circumstances surrounding the offence, including the appellant's driving at the time. The court also determined that the Magistrate did not err in imposing a custodial sentence and was justified in doing so. However, the court found that the head sentence of fifteen months imprisonment was manifestly excessive. As a result, the appeal was allowed, and the original sentence was set aside. The appellant was re-sentenced to six months imprisonment, suspended upon entering into a bond of $20 to be of good behaviour for two years, and his driver's licence was suspended for two years.

The court's reasoning led to a reduction in the custodial sentence and the duration of the licence disqualification. The final orders reflected a more proportionate sentence considering the appellant's age, early guilty plea, and lack of aggravating factors. The court's decision emphasized the importance of proportionality in sentencing and the need to adequately consider relevant factors while avoiding manifestly excessive sentences.

Orders