SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v BERZINS
[2011] SASCFC 146
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Stanley)
1 December 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal by the police against sentence – defendant pleaded guilty to the offence of driving a motor vehicle when not authorised to do so contrary to section 74(2) of the Motor Vehicles Act 1959 (SA) and to the offence of aggravated driving without due care contrary to section 45(2) of the Road Traffic Act 1961 (SA) – the latter offence was aggravated due to the presence of 0.155 grams of alcohol in 100 millilitres of the defendant’s blood – a Magistrate utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one penalty in respect of both counts – a fine of $500.00 was imposed and the defendant was disqualified from holding or obtaining a driver’s licence for a period of three months and 19 days – as the defendant had already been disqualified for 6 months and 19 days prior to sentencing, the total period of driver's licence disqualification was 10 months – whether the Magistrate had power to impose a fine in lieu of a term of imprisonment in respect of the aggravated offence of driving without due care – whether the penalty imposed by the Magistrate was manifestly inadequate – whether it was appropriate for the Magistrate to utilise section 18A of the Sentencing Act.
Consideration of section 18(a) of the Sentencing Act.
Held: Appeal allowed – the Magistrate had the power under section 18(a) of the Sentencing Act to impose a fine in lieu of a term of imprisonment in respect of the aggravated offence of driving without due care – however, the penalty imposed was manifestly inadequate – the imposition of a fine was inadequate – the appropriate course was to proceed pursuant to section 39 of the Sentencing Act to record a conviction and to release the defendant on a three year supervised good behaviour bond – the defendant was disqualified from holding or obtaining a driver’s licence for a further period of 20 months – as the breach of section 74(2) only attracts a fine for a first offence, it was not appropriate for the Magistrate to utilise section 18A of the Sentencing Act to deal with that offence at the same time as the offence against section 45(2) of the Road Traffic Act as the latter offence involved imprisonment as part…
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- Police v Berzins [2011] SASCFC 146
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- [2011] SASCFC 146
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CaseChat Overview and Summary
The appeal raised three key legal issues for determination by the Full Court of the Supreme Court of South Australia. Firstly, whether the Magistrate possessed the power to impose a fine in lieu of a term of imprisonment for the aggravated offence of driving without due care. Secondly, whether the penalty imposed by the Magistrate was manifestly inadequate. Thirdly, whether it was appropriate for the Magistrate to have utilised section 18A of the *Criminal Law (Sentencing) Act* in the circumstances of this case.
The Court rejected the contention that section 18A of the *Criminal Law (Sentencing) Act* should be construed to deny a court the power to impose a fine when such a penalty might be suitable and appropriate. The Court reasoned that common sense suggested such a restrictive outcome was not intended by Parliament. It was considered that if a court could proceed without imposing imprisonment, it would be absurd to restrict its power to imposing only a bond and to exclude the power to impose a fine. The Court referred to *Johnson v Police* [2011] SASC 63, where Sulan J had considered the availability of section 18A to impose a fine in lieu of imprisonment for an offence where only imprisonment was prescribed. Sulan J had concluded that section 18A was applicable, allowing for a fine to be imposed in addition to a mandatory licence disqualification, and that the section should be construed beneficially. The Full Court agreed with this approach, finding that a commonsense reading of section 18A effectively separated the sentence for licence disqualification from the wording of subsection (a) which referred to "imprisonment only".
The Court found that the Magistrate had the power to impose a fine in lieu of imprisonment for the aggravated driving offence and that the application of section 18A was appropriate. The appeal was dismissed.
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