Police v Berzins

Case [2011] SASCFC 146

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
Case
[2011] SASCFC 146
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CaseChat Overview and Summary

The Police appealed against a sentence imposed by a Magistrate on the respondent, Mr Berzins. Mr Berzins had pleaded guilty to driving a motor vehicle without authorisation, contrary to section 74(2) of the *Motor Vehicles Act 1959* (SA), and to aggravated driving without due care, contrary to section 45(2) of the *Road Traffic Act 1961* (SA). The latter offence was aggravated by a blood alcohol reading of 0.155 grams of alcohol in 100 millilitres of blood. The Magistrate had applied section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) to impose a single penalty for both offences, consisting of a $500 fine and a three-month and 19-day driver's licence disqualification. This resulted in a total disqualification period of 10 months, as Mr Berzins had already been disqualified for six months and 19 days prior to sentencing.

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.

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

It is self evident that cases will arise when neither orders for imprisonment nor release on a bond are appropriate. An appropriate penalty may well be a fine together with a driver’s licence disqualification. The contention that section 18(a) is to be construed to deny to the court what may be a most suitable and appropriate power when sentencing should be rejected. Common sense would suggest that such a result was not intended. Once it is accepted that it may be appropriate to proceed without an order for imprisonment, it might be suggested that there would be an air of absurdity about restricting the court to a bond and to exclude the power to fine. Single Judge Decisions on Section 18(a) In Johnson,[23] Sulan J was faced with the issue of whether section 18(a) of the Sentencing Act was available to impose a fine in lieu of a sentence of imprisonment. However, Johnson concerned the offence of driving a motor vehicle without the consent of the owner, pursuant to section 86A of the Criminal Law Consolidation Act 1935 (SA). Section 86A(1) prescribes a penalty of “imprisonment for 2 years” for a first offence. That is the only penalty prescribed for that offence. Sulan J considered that section 18(a) of the Sentencing Act was applicable so as to enable a fine to be imposed in lieu of the sentence of imprisonment.[24] His Honour observed:[25][23] Johnson v Police [2011] SASC 63. [24] Johnson v Police [2011] SASC 63, [30], [33].[25] Johnson v Police [2011] SASC 63, [26]-[28], [30]. The scope of section 18 is ambiguous insofar as it purports to operate only where a penalty of imprisonment is the only sentence prescribed by the special Act. If a narrow interpretation of the section is correct, as submitted by counsel for the Police, then anomalous outcomes could result. On the one hand, a serious offence against a person, such as an assault, may have a penalty reduced from imprisonment to a fine, in accordance with section 18. However, a less serious offence, such as the present case, where it might have already been determined that a custodial sentence would be inappropriate, pursuant to section 11, could not be reduced by reason of the mandatory licence disqualification. In my view, it could not be said that Parliament would have intended this result.In the second reading speech for the Statutes Amendment (Illegal Use of Motor Vehicles) Bill (SA), the effect of the imposition of the mandatory disqualification period, pursuant to section 86A, was discussed. The Minister said:It will bring about consistency in the courts, in that anyone who embarks on an illegal use offence, apart from the penalties that are already prescribed by way of fines or imprisonment, in addition, faces a fixed period of disqualification for 12 months, which means consistency and certainty. (Emphasis is mine)It may be inferred, therefore, that it was the Minister’s intention that a sentencing judge be permitted to impose a fine where appropriate for a contravention of the section, at least for a first offence.…Section 18 is one of a number of sentencing provisions which enable the Court to extend leniency in an appropriate case. It should be construed beneficially. In my view, a commonsense reading of section 18 effectively divorces the sentence in respect of the licence disqualification from the words of subsection (a) in which the section speaks of “imprisonment only”. Therefore, where a court finds good reason to substitute a fine for a sentence of imprisonment, it may do so in addition to imposing the mandatory licence disqualification.[Footnote omitted.]

Ratio Decidendi

Legal Principle Established

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