Police v ILLMAN - [2011] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ILLMAN
[2011] SASC 15
Judgment of The Honourable Justice Nyland
18 February 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Prosecution appeal against sentence - respondent pleaded guilty to driving without due care and driving whilst exceeding prescribed concentration of alcohol – Magistrate applied s 16 Sentencing Act not to record conviction for either offence – penalty for PCA offence included mandatory period of licence disqualification – Magistrate erred as s 16 not enlivened when a court is required by law to impose a penalty other than a fine or community service – respondent involved in accident whilst affected by alcohol - respondent genuinely contrite but seriousness of offence required conviction to be recorded – appeal allowed and conviction recorded with respect to both offences.
Road Traffic Act 1961 ss 45(1), 47A, 47B; Summary Procedure Act 1921 s 991(1); Criminal Law (Sentencing) Act 1988 s 16, referred to.
House v The King (1935) 55 CLR 499; Hyde v Police [2006] SASC 362, applied.
R v Osenkowski (1982) 30 SASR 212; Everett v R (1994) 181 CLR 295; Police v Cadd & Ors (1997) 69 SASR 150; Miles v Police [2009] SASC 181; Police v McDiarmid [2010] SASC 178, considered.

POLICE v ILLMAN
[2011] SASC 15
Magistrates Appeal

NYLAND J: This is a prosecution appeal against sentence. On 21 October 2010 the respondent appeared before a Stipendiary Magistrate in the Christies Beach Magistrates Court. He was represented by counsel. The respondent pleaded guilty to an offence of driving without due care (the due care offence), contrary to s 45(1) Road Traffic Act 1961 (SA) and to an offence of driving whilst exceeding the prescribed concentration of alcohol (“the PCA offence”), contrary to s 47B Road Traffic Act 1961 (SA). The relevant alcohol concentration made this a Category 2 offence, as defined by s 47A Road Traffic Act 1961 (SA). The appellant also pleaded guilty to an offence of failure to comply with a restraining order contrary to s 99I(1) Summary Procedure Act 1921 which was charged on a separate complaint. This appeal relates only to the due care and PCA offences.
Background
The circumstances of the offending were that on 2 July 2010 the respondent attended a hotel in the Willunga area. The respondent’s friend asked him to drive him home. Whilst driving along St Andrews Terrace, Willunga, the respondent attempted to navigate an S-bend and lost control of the car. The vehicle fish-tailed, spun 180 degrees and crashed into a tree. The street lighting was poor and conditions were wet. The respondent’s vehicle was the only vehicle on the road. The distance that the…

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 Police v ILLMAN

Details

AGLC: Police v ILLMAN [2011] SASC 15
Case: [2011] SASC 15
Decision Date: 18 February 2011

CaseChat Overview and Summary

The case of Police v Illman involved an appeal by the Crown against the decision of a magistrate not to record convictions for two traffic offences. The respondent, Illman, had pleaded guilty to driving without due care and exceeding the prescribed concentration of alcohol. The magistrate, exercising discretion under section 16 of the Sentencing Act, chose not to record a conviction for either offence, which meant that no conviction was officially recorded on Illman's criminal record, and the penalty for the prescribed concentration of alcohol (PCA) offence, including a mandatory period of licence disqualification, was not imposed.

The primary legal issues for the court to decide were whether the magistrate correctly exercised their discretion under section 16 and whether the court could interfere with the magistrate's decision. Specifically, the court had to determine whether the magistrate was correct in their understanding that section 16 did not apply when a court is required by law to impose a penalty other than a fine or community service. Additionally, the court needed to weigh the seriousness of the offences against the respondent's genuine contrition.

The court found that the magistrate had erred in their interpretation of section 16, clarifying that the section does not preclude the recording of a conviction when a court is legally required to impose a penalty other than a fine or community service. The court held that the seriousness of the respondent's actions, which included causing an accident while under the influence of alcohol, warranted the recording of a conviction despite the respondent's contrition. The appeal was allowed, and the convictions were recorded for both the PCA and the driving without due care offences. This decision underscored the importance of correctly applying statutory provisions regarding the recording of convictions and the need to balance the seriousness of the offence with the circumstances of the offender.

Orders