Pointon v Police - [2004] SASC 4

POINTON v POLICE
[2004] SASC 4
Magistrates Appeal
GRAY J
Introduction

This is an appeal against sentence.
The Circumstances of the Offending
At about 4.00 am on 2 February 2003 police were called to commercial premises at Dry Creek. It was ascertained that a vehicle had been stolen and driven through locked front gates causing damage to the gates and padlocks. A search of the area located the vehicle being driven nearby. The police followed until the vehicle stopped. Mr Pointon left the vehicle and approached the police. He provided a false name and address. The police observed damage to the front driver’s side window. Mr Pointon was arrested. Police checks revealed that he was driving whilst disqualified.
On 12 August 2003 Mr Pointon was convicted of driving a motor vehicle without consent,[1] damaging property,[2] unlawfully on premises,[3] giving a false name and address[4] and driving whilst disqualified[5]. Mr Pointon pleaded guilty to each of these offences. In relation to the offences of driving without consent, damaging property and unlawfully on premises the magistrate imposed one penalty of eight months imprisonment pursuant to section 18A of the Criminal Law (Sentencing) Act 1988. This appeal relates only to the sentence imposed in respect of these offences. Mr Pointon was convicted without further penalty for giving a false name and address and driving whilst disqualified.
[1] Section 86A Criminal Law Consolidation Act 1935. Maximum penalty for first offence two years imprisonment, subsequent offence imprisonment for not less than three months and not more than four years.
[2] Section 85(3) Criminal Law Consolidation Act 1935. Maximum penalty two years imprisonment.
[3] Section 17(1) Summary Offences Act 1953. Maximum penalty two years imprisonment.
[4] Section 91 Motor Vehicles Act 1959. Maximum penalty for first offence six months imprisonment, subsequent offence two years imprisonment.
[5] Section 91 Motor Vehicles Act 1959. Maximum penalty for first offence six months imprisonment, subsequent offence two years imprisonment.
At the same hearing Mr Pointon was convicted of failing comply with a bail agreement and driving whilst disqualified. Mr Pointon pleaded guilty to both counts. Having regard to the two months he had spent in custody on remand, the magistrate convicted Mr Pointon without penalty.
At the same hearing Mr Pointon was convicted of failing to indicate before changing direction, driving while present a prescribed concentration of alcohol, driving an unregistered and uninsured vehicle and driving whilst disqualified. Mr Pointon pleaded guilty to each offence and the magistrate imposed a penalty including a licence disqualification and a fine of $800.
Mr Pointon was further convicted of two counts of failing to comply with a bail agreement. Regard was had to the time Mr Pointon had spent in custody. No further penalty was imposed.
Personal Antecedents
Mr Pointon’s personal antecedents indicate that he had a traumatic and an unstable childhood. Mr Pointon’s parents separated when he was seven. Both his parents died when he was fourteen.
Mr Pointon’s childhood indicates that he had poor role modelling…

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 Pointon v Police

Details

AGLC: Pointon v Police [2004] SASC 4
Case: [2004] SASC 4
Decision Date: 21 January 2004

CaseChat Overview and Summary

In Pointon v Police, the defendant, Mr Pointon, was charged with an illegal use offence under section 86A of the Criminal Law Consolidation Act 1935 (SA). This case arose from an incident where Mr Pointon was found to have driven a motor vehicle without the consent of the owner. The crux of the dispute was whether Mr Pointon’s previous conviction under the repealed section 44 of the Road Traffic Act 1961 (SA) should be considered a ‘subsequent offence’ under the new legislation. The court was tasked with interpreting the meaning of ‘subsequent offence’ in section 86A, particularly whether it encompassed earlier offences committed under the repealed section 44.

The primary legal issue was to determine whether Mr Pointon's prior conviction under the old statute qualified as a 'subsequent offence' under the new Act. The Crown argued that the essence of the offence remained unchanged, thus warranting a harsher penalty under the new legislation. This interpretation hinged on the court's understanding of legislative intent and the principle of continuity in criminal law. The Crown sought to leverage the precedent set in R v Austin, where the Court of Criminal Appeal held that a previous conviction could constitute a 'subsequent offence' if the substance of the offence remained consistent despite legislative changes.

The court meticulously examined the legislative history and the language of section 86A, finding that the legislative intent was to enhance penalties for repeat offenders. The court held that since the essence of the offence had not changed, Mr Pointon's prior conviction under section 44 of the Road Traffic Act constituted a 'subsequent offence' under the new Act. Consequently, the court ruled that the penalty for Mr Pointon's current offence would be determined by the provisions of section 86A, which mandated imprisonment for not less than 3 months and not more than 4 years. The court emphasised the importance of personal deterrence in sentencing, given Mr Pointon's persistent disregard for the law as evidenced by his antecedent criminal history.

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

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Ratio Decidendi

Legal Principle Established

Personal deterrence was said to be an important sentencing factor in this case. Mr Pointon’s antecedent criminal history indicated a persistent disregard for the law.Consideration of the IssuesSection 86A of the Criminal Law Consolidation Act 1935 (SA) Counsel for the Crown submitted that the illegal use offence was a subsequent offence within the meaning of section 86A of the Criminal Law Consolidation Act 1935 (SA) which provides:A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence. Penalty: For a first offence - imprisonment for 2 years; For a subsequent offence - imprisonment for not less than 3 months and not more than 4 years. …Mr Pointon had previously been convicted of illegal use of a motor vehicle contrary to section 44 of the Road Traffic Act 1961 (SA) which provided:A person shall not, on a road or elsewhere, drive, use or interfere with a motor vehicle without first obtaining the consent of the owner thereof.Section 44 was repealed by the Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992 and replaced by section 86A(1) of the Criminal Law Consolidation Act. The question arises: whether the meaning of ‘subsequent offence’ in section 86A includes an earlier offence committed against section 44 of Road Traffic Act. There has been considerable debate about what constitutes a ‘subsequent offence’ in sections such as section 86A of the Criminal Law Consolidation Act. One line of authority suggests that where the substance of an offence remains the same despite a change in a legislative scheme, a previous conviction will constitute a subsequent offence under the more recent Act. In R v Austin[8] the Court of Criminal Appeal was asked to consider the meaning of ‘second or subsequent conviction’ in the context of section 7(5) of the Criminal Law Amendment Act 1912[9]. It was argued for the appellant that as the previous offence was committed prior to the passing of the Act, it could not be considered a ‘subsequent offence’. The court observed:It was not intended by [the Criminal Law Amendment Act 1912] to diminish the existing deterrents from these offences. …No doubt; one can hardly imagine the Legislature punishing a man for having done an act which at the time of its commission was a perfectly innocent act. But to prescribe punishment for an old offender in case in the future he persist in his crime is quite another matter. The offence in question was committed since the Act. The Act says that a man guilty in the future may, if he has already been guilty in the past, be punished as he could not have been before the Act. There is nothing wrong in that. No man has such a vested interest in his past crimes and their consequences as would entitle him to insist that in no future legislation shall any regard whatever be had to his previous history.[10][8] [1913] 1 KB 551[9] 2 & 3 Geo. 5, c 20[10] [1913] 1 KB 551at 555-556