Police v Holer

Case [2016] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v HOLER

[2016] SASC 187

Judgment of The Honourable Justice Peek

14 December 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - FRESH EVIDENCE

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - OTHER PARTICULAR MATTERS

Appeal against penalty.

The appellant pleaded guilty to one count of dangerous driving contrary to s 46 of the Road Traffic Act 1961. The appellant, in apparent “road rage”, repeatedly and intentionally rammed the victim’s vehicle while travelling at speeds of approximately 75km/h, and intimidated the victim through prolonged tail-gating and sounding of the horn. The Magistrate sentenced the appellant to four months imprisonment and declined to suspend the sentence. The Magistrate also disqualified his driver’s licence for 3 years.

The appellant’s grounds of appeal contended that the sentencing discretion of the Magistrate miscarried in failing to suspend or partially suspend the sentence of imprisonment or to make a Home Detention Order, and that the 3 year licence disqualification was manifestly excessive. The appellant also applies to adduce fresh evidence pursuant to s 42(4) of the Magistrates Court Act 1991 in the form of two letters from his employer as to the consequences of the penalty on his employment.

Held (dismissing the appeal):

1.       The Magistrate correctly approached the questions of: whether a custodial sentence should be imposed; whether the sentence of imprisonment should be suspended either wholly or in part; and whether a Home Detention Order should be made. He acted within his discretion in imposing the sentence that he did.

2. The application to adduce fresh evidence pursuant to s 42(4) of the Act is granted. However, the documents have little weight.

3. Section 10B of the Criminal Law (Sentencing) Act 1988, has no application to the mandatory drivers licence disqualification prescribed by s 46(3)(a) of the Road Traffic Act 1961 and the Magistrate was correct in not discounting the period of license disqualification due to the appellant’s guilty plea.

Road Traffic Act 1961 s 46; Criminal Law (Sentencing) Act 1988 ss 3, 9E, 10, 10B, 11, 33BB; Magistrates Court Act 1991 s 42; Acts Interpretation Act 1915 s 30; Statutes Amendment and Repeal (Sentencing) Act 1988 s 72, referred to.
Reeves v Police (1998) 70 SASR 451; D'aniello v Police [2009] SASC 172; Moore v Police [2013] SASC 30; R v Jongewaard [2009] SASC 346; R v Domarecki [2016] SASCFC 67; Graham v Police [2008] SASC 122, discussed.
R v Nemer [2003] 87 SASR 168, considered.

POLICE v HOLER
[2016] SASC 187

Magistrates Appeal

  1. PEEK J.    Appeal against penalty for dangerous driving.

  2. The subject incident occurred on 17 December 2015 when the victim was driving…

Continue reading Police v Holer

Sign in free to access the full text

Details
AGLC
Police v Holer [2016] SASC 187
Case
[2016] SASC 187
Decision Date

CaseChat Overview and Summary

In the case of Police v Holer, the appellant was appealing against a decision made by a Magistrate in the Magistrates Court of South Australia. The appellant was convicted of dangerous driving and was sentenced to a term of imprisonment. The appellant was seeking to appeal against the decision of the Magistrate to not suspend the sentence of imprisonment. The appeal was brought before the Supreme Court of South Australia.

The legal issues that the court was required to decide included whether the Magistrate erred in law in not suspending the sentence of imprisonment and whether the sentence imposed was manifestly excessive. The court had to consider the relevant factors that should be taken into account when determining whether to suspend a sentence of imprisonment. The court also had to consider whether the sentence imposed was manifestly excessive and whether it fell outside the sentencing discretion available to the Magistrate.

The court found that the Magistrate had not erred in law in not suspending the sentence of imprisonment. The court found that the Magistrate had considered all relevant factors and had come to a reasonable conclusion. The court found that the sentence imposed was not manifestly excessive and that it fell within the sentencing discretion available to the Magistrate. The court found that the appellant's conduct was extremely serious and required strong denunciation by the Court. The court found that the appellant's recent apologies and the positive opinion proffered by others as to his good character were not sufficient to warrant a suspension of the sentence of imprisonment.

The court dismissed the appeal and upheld the decision of the Magistrate. The court found that the sentence of imprisonment was appropriate and that it was not open to the court to interfere with the discretion of the Magistrate. The court found that the Magistrate had exercised his discretion in a reasonable manner and that the sentence imposed was not manifestly excessive. The court found that the appellant's conduct was truly outrageous and required strong denunciation by the Court. The court found that the appellant's recent apologies and the positive opinion proffered by others as to his good character were not sufficient to warrant a suspension of the sentence of imprisonment. The appeal was dismissed, and the decision of the Magistrate was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PEEK J
More recently in R v Domarecki, Nicholson J (with whom Parker and LovellJJ concurred) stated:[5][23] … As the former Chief Justice also indicated in Jongewaard,[6] the argument that a sentencing Judge has erred in failing to suspend a prison sentence “will succeed only if this Court is persuaded that it was not open to the Judge to find that there was not ‘good reason’ for suspending the sentence, in exercise of the power conferred by ss 38(1) of the Sentencing Act”. … [26] The issue of whether or not the sentence imposed was manifestly excessive requires consideration of whether the Judge’s starting point was “unreasonable or plainly unjust” in all of the circumstances such that it fell outside the sentencing discretion available to the Judge. It also requires a consideration of whether or not the decision to suspend fell outside the discretion available to the Judge. In The Queen v Morse,[7] King CJ indicated that the factors to be considered when addressing the question of manifest excess are:(i) the maximum sentence prescribed by law for the offence; (ii) the standards of sentence customarily observed for offences of the kind in question; (iii) the seriousness of the offence committed when compared to other offences of its kind; and(iv) the personal circumstances of the offender. [Emphasis added][5] [2016] SASCFC 67.[6] At [42].[7] (1979) 23 SASR 98, 99.The approach of the Magistrate to the suspension decision The present offending constituted deliberate and dangerous harassment of other road users which put the driver and his children at risk. It was a prolonged incident in which the appellant tail-gated, sounded his horn and intimidated the victim and his children over the course of a number of kilometres, including through the township of Middleton. It occurred during the busy Christmas period when there were many people on the road. It was extremely serious in that the appellant quite deliberately drove up behind the victim’s car and rammed it from the rear a number of times. The appellant used his vehicle as an instrument to give effect to his anger. This was extremely frightening to the occupants, as well as being highly dangerous. It demonstrates a strong need for personal deterrence, the positive opinion proffered by others as to the appellant’s good character and his recent apologies notwithstanding. This was truly outrageous conduct. It simply cannot be tolerated and requires strong denunciation by the Court. In the present case, the Magistrate correctly approached the question of whether the sentence of imprisonment should be suspended (either wholly or in part). His Honour stated, “I now revisit all of the considerations again to determine whether good reason exists to suspend this sentence either wholly or in part.” In that earlier part of his judgment, in the context of imposing a sentence of imprisonment and assessing its duration, his Honour had referred to all relevant considerations put to him by counsel, including: the appellant’s age of 39 years; that he had virtually no prior offending (two minor matters being treated as irrelevant); his plea of guilty; and his submission that he had been shaken by the court process which he had not been involved in previously.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Full text does not contain this section.