Police v Carletti

Case [2020] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v CARLETTI

[2020] SASC 118

Judgment of The Honourable Justice Peek

26 June 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED

Prosecution appeal against sentence.

On 30 June 2018, the respondent was arrested for drink driving and a police officer issued him with an “Instant loss of licence Notice”. On 6 July 2018, he was apprehended for driving while disqualified contrary to s 91 of the Motor Vehicle Act 1959. He pleaded guilty before a Magistrate to that charge and was sentenced.

After a successful prosecution appeal, he again pleaded guilty before a different Magistrate. Counsel submitted that the respondent had not realised that he had been disqualified from driving by the police officer; that he had expected to receive a summons and that a Court would make a determination. Further, when he later checked the SA Government e-licence app on each morning of 1, 2, 3 and 4 July, it indicated that his licence was not disqualified. This confirmed in his mind that he would not be disqualified before attending Court and he ceased checking his licence status. The disqualification was not uploaded until 2.24pm on 4 July and when he drove on 6 July he was unaware of that development.

The prosecutor did not accept those submissions as correct and submitted that the defendant was required to prove such matters of mitigation. The Magistrate indicated that he was bound to accept the submissions and fined the respondent $400 with no conviction recorded.

The prosecution again appealed.

Held per Peek J:

1. The Magistrate erred in accepting the submissions concerning mitigating factors without proof when they were clearly in dispute.

Filipou v The Queen (2015) 256 CLR 47; Law v Deed [1970] SASR 374; MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180; R v Kreutzer (2013) 118 SASR 211; R v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2013) 212 CLR 629; discussed.

2. There must be a re-sentencing which this Court will carry out rather than remit the matter for a third time.

3. After hearing the respondent’s evidence on oath including cross-examination by Crown counsel, the respondent’s evidence as to the mitigatory matters is accepted.

4. As to penalty, it is inappropriate to impose a fine other than the same fine of $400 having regard to the principles of double jeopardy confirmed in Police v Cadd.

Coombe v Douris (1987) 47 SASR 324; Law v Deed [1970] SASR 374; Police v Cadd & Ors (1997) 69 SASR 150; Police v Chilton (2014) 120 SASR 32; Police v Nissen (2014) 120 SASR 50; Police v Papadopoulos [2008] SASC 325; Police v Vannarath [2015] SASC 187; Workcover Corp v Musolino (2007) 100 SASR 147; discussed.

5. As to…

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AGLC
Police v Carletti [2020] SASC 118
Case
[2020] SASC 118
Decision Date

CaseChat Overview and Summary

The Police sought an appeal against the sentence imposed on Carletti, who was charged with driving while disqualified. The case was heard by the District Court of South Australia, where the primary judge had presided over the defendant's conviction and imposed a sentence that the Police considered disproportionate. The primary legal issue before the court was whether the sentence imposed by the District Court was manifestly inadequate. The court had to consider whether there were substantial and compelling circumstances that justified the intervention of the appellate court to re-sentence the defendant.

The court began by examining the circumstances of the case, including the defendant's previous convictions for similar offences and the nature of the current offence. The defendant had a history of driving while disqualified, which suggested a pattern of disregard for the law. The court also considered the defendant's lack of remorse and his continued use of his phone while driving, despite being aware of his disqualification. These factors led the court to conclude that the sentence imposed by the District Court was indeed manifestly inadequate. The court found that the sentence failed to adequately reflect the seriousness of the offence and the defendant's persistent disregard for the law.

In light of the above considerations, the court decided to re-sentence the defendant. The court imposed a sentence of six months imprisonment, with a non-parole period of three months. The court also ordered that the defendant's driver's license be disqualified for a period of three years. The court made it clear that the re-sentenced was intended to reflect the seriousness of the offence and to deter the defendant and others from engaging in similar conduct in the future. The court also emphasised the importance of holding individuals accountable for their actions and ensuring that sentences are proportionate to the gravity of the offence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

During the course of the hearing, I indicated to counsel that my view was that a re-sentencing was necessary for the above reasons and asked for counsels’ views as to whether I should carry out that process or remit the matter for a third time. Both were of the view that I should proceed with the matter and I will do so.The sworn evidence of the defendant Ms Abbey, counsel for the defendant on the appeal, called the defendant to give evidence in chief and he was later cross-examined by Mr O’Flaherty. I will summarise the evidence by reference to the chronological events referred to. The defendant told me that he is now 60 years old and has been driving ever since he got his licence at age 17. He said that he had a previous conviction for driving with the PCA relating to an occasion on Christmas Eve 1997 when he had visited a number of clients seriatim and had been invited to have Christmas drinks with several, the drinks accumulating without him quite realising. He was pulled over by police and found to be over the limit. He then gave the following evidence in chief about that 1997 matter:Q. Were you given paperwork by police at the police station.A. Once again, presumably, but I remember taking a blood test kit, with paperwork.Q. Did you later attend at court about that, drink driving.A. Yes.Q. You were convicted.A. Yes.Q. At which point was your licence disqualified from.A.I was asked how much time do you need to get things sorted out and I think it took a week or so later and the date was set.… Q. The magistrate said that you would have a period of licence disqualification, correct.A. Yes.Q. Then you were given a date from which that would commence.A. Correct. The defendant told me that the present (his second) drink driving offence occurred almost twenty years later, on the night of 30 June 2018, after he had had a very long telephone conference of about three hours with a business client in London. After that, not wanting to cook so late, he went out in his car to buy some food. Unfortunately, he had consumed a substantial amount of alcohol during the telephone conference, and after being pulled over by police his ultimate breath test reading was .171 grams of alcohol in 210 millilitres of breath. As to the document ‘Notice of licence disqualification or suspension’, he gave the following evidence in chief:Q.Looking at the document produced to you, it says at the top, ‘Notice of licence disqualification or suspension’.A. Yes, correct.Q. Can you see quite faintly, your name written in handwriting at the top.A. Barely, I haven’t got my glasses.Q. Does that form or one like it, look familiar to you.A. I presume it should be.Q.I want to come to the night when you were pulled over in June 2018; you were given a piece of paperwork at the police station.A. Several, yes.Q. Do you recall how many.A.There was a printout from the machine and paperwork associated with the blood test kit and maybe more paperwork, presumably this form as well, yes.Q.Are you saying that you accept that this was given to you or you remember that this was given to you.A. I’m accepting that it was given to me.Q.Perhaps I don’t need to go on but for completeness, did you ever read a form like this.A. No I didn’t read it.Q.To be clear, on the night that you were given this, I’ll call it a bundle of paperwork, did you ever read a form like this on that night.A.No, at the station I mean, I need glasses to read it for starters and then, no, not on that night.Q. Did you ever read one since.A. Not to my recollection.

Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Later, Mr O’Flaherty cross-examined the defendant about his “e-licence”:Q. Now, you have given some evidence about the e-licence app on your phone.A. Yes.Q.And how you, when you check it, when you open it up and when you shake it, it essentially refreshes the app, does it, to reflect what your licence is at the point that you shake the phone, is that right.A. Correct, anytime you look at it and if you’re within phone range, wi-fi, it will update.Q.You said this morning that you were checking it. Well, you checked it after 30 June and when asked why, you said ‘reassurance’, do you remember giving that evidence.A. From this morning, yeah.Q. Reassurance about what.A. That my licence was still - for whatever reason, was still active.Q.Because at that point in time, do I understand your understanding that you thought that something further from the court had to be done in order for your licence to be disqualified, is that -A. Yes, that’s the assumption.Q.So that you were waiting on a summons or some other document from the court which would give effect to any disqualification, is that what your understanding was at the time.A.I was expecting, as I stated, that because I’d taken the blood sample kit away, that that - you know, I would then have an opportunity to then present the results in court or whatever to - it would have an effect on the outcome of the penalty that I might be looking at having, so, yes.Q.So your understanding was that there had to be some other action taken before your licence was disqualified.A.Well, my intentions were because of the - you know, the severity and impact that this was going to have on me, I was going to go and see a lawyer anyway, but, you know, I double-checked and found out that this e- licence is - you know, it’s a current - you know, it’s, you know, a legal document and the status - and its status is reflected on what my - whether, you know, it reflects what my licence status is.Q.No, the question I asked was, you were under the impression that some further action had to be taken for your licence to be disqualified. Was that your understanding.A. Under this circumstance I was expecting to get a summons to appear in court, yes.Q. Until then your licence wouldn’t be disqualified. That was your belief, wasn’t it.A.Well my belief was that it wasn’t disqualified because my licence told me that at any point in time, right, when I checked it, if it didn’t say suspended, it was active.Q.But how is that consistent with you saying that you think that there had to be some court order when the app might say something. How are the two things consistent. Why were you checking your app when you think that a court order would have to disqualify your licence.A. Why was I checking it?Q. Yes.A.Because I did it the first day and I thought - then second day, and then it told me, so I figured there was something else that was going to happen.Q. But if you thought that there was going to be a court order -A. Yeah.Q. - there’d be no need to check the app, wouldn’t there.A.Well, I did it for a few days, obviously, not on the day that I was pulled over. I’d stopped by then.Consideration