POLICE v MARTINEZ-DIAZ

[2007] SASC 47

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

POLICE v MARTINEZ-DIAZ

[2007] SASC 47

Judgment of The Honourable Justice David (ex tempore)

13 February 2007

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT

Crown appeal against sentence – respondent charged with driving whilst disqualified – previous conviction for driving whilst disqualified – magistrate imposed fine of $400 – whether sentence manifestly inadequate – whether driving was contumacious – held, appeal allowed – irrespective of whether driving was contumacious, because of previous convictions sentence was inadequate – re-sentenced to 21 days imprisonment suspended on respondent entering bond.

Motor Vehicles Act 1959 s 9, s 91, s 102, referred to.

POLICE v MARTINEZ-DIAZ
[2007] SASC 47

Magistrates Appeal

1. DAVID J.               This is an appeal against the inadequacy of a sentence for driving whilst disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act 1959. The magistrate fined the respondent the sum of $400 in relation to this offending. In dealing with the matter the magistrate also penalised the respondent for driving an unregistered vehicle, contrary to s 9 of the Motor Vehicles Act and driving an uninsured vehicle, contrary to s 102 of the Motor Vehicles Act. However, those charges are not the subject of this appeal.

2. On 13 December 2006, the respondent was penalised for driving whilst under disqualification for an offence committed on 1 August 2006, and was fined the sum of $400. The respondent had previous convictions in relation to other traffic matters, including a conviction for driving whilst disqualified.

3. In relation to the present matter, the magistrate determined that the offending was not contumacious. This was argued on appeal. However, in my view, irrespective of whether or not I were to find the offending in this case contumacious, because of the respondent’s previous conviction for driving whilst disqualified, it is agreed by both parties that a fine was far too lenient a sentence. I therefore allow the appeal.

4. It was also agreed that I should re-sentence the respondent. In relation to re‑sentencing, I take into account the fact that the respondent is in a different position than he was when originally sentenced, and I can see my way clear to suspend any term of imprisonment which I have to impose. The substituted sentence will therefore be imprisonment for 21 days, suspended upon the respondent entering into a bond in the sum of $500 to be of good behaviour for a period of two years.