Police v MCDIARMID - [2010] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MCDIARMID
[2010] SASC 178
Judgment of The Honourable Justice Kelly
18 June 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Crown appeal against Magistrate's failure to record a conviction - respondent pleaded guilty to driving with a prescribed concentration of alcohol in blood contrary to s 47B(1)(a) Road Traffic Act 1961 (SA) – minimum fine and licence disqualification imposed by Magistrate – whether Magistrate was in error by failing to record a conviction – consideration of application of s 16 and s 20 of the Criminal Law (Sentencing) Act 1988 (SA) in relation to s 47B of the Road Traffic Act 1961.
Held: appeal allowed – conviction recorded.
Road Traffic Act 1961 (SA) s 47B(1)(a); Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) s 40; Criminal Law (Sentencing) Act 1988 (SA) s 16 and s 20, referred to.
Hyde v Police [2006] SASC 362; Miles v Police [2009] SASC 181, applied.

POLICE v MCDIARMID
[2010] SASC 178
Magistrates Appeal: Criminal
KELLY J
Introduction

The appellant appeals against a sentence imposed in the Port Adelaide Magistrates Court on 24 March 2010.
The respondent was charged on complaint with one count of driving with excess blood alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). The respondent had a blood alcohol level of 0.124, with a consequence that it was a category two offence. At the time of the offence on 11 November 2009 the police imposed an immediate licence disqualification on the respondent.
The penalty prescribed for a category two offence is a fine of not less than $500 and not more than $900. Further, where the court convicts a person of a category two offence in addition to any fine imposed the court must order that the person be disqualified from holding or obtaining a drivers licence for a period of not less than six months. This period of disqualification cannot be reduced, mitigated or substituted unless the court is satisfied by evidence on oath that the offence is trifling. Where the court finds that the offence is trifling, the court may impose a lesser period of disqualification, but the period of disqualification imposed even in those circumstances must be at least one month.
The learned Magistrate imposed a fine of $500 and disqualified the respondent from holding or obtaining a drivers licence for a period of two months and 17 days in addition to the three months and 13 days that the respondent had already served by virtue of the immediate licence disqualification imposed on 11 November 2009. The Magistrate went on to find that there was good reason not to record a conviction in this case. It is this latter aspect of the sentence which the appellant appeals. The appellant submits that the Magistrate was in error by failing to record…

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 MCDIARMID

Details

AGLC: Police v MCDIARMID [2010] SASC 178
Case: [2010] SASC 178
Decision Date: 18 June 2010

CaseChat Overview and Summary

The Court heard an appeal by the Crown against a decision of a Magistrate not to record a conviction against a respondent who had pleaded guilty to an offence of driving with a prescribed concentration of alcohol in the blood. The Crown argued that the Magistrate was in error by failing to record a conviction. The respondent, a police officer, had no prior convictions and had consumed alcohol prior to driving. The Magistrate had imposed a fine and a disqualification from holding a driver's licence but determined that there was good reason not to record a conviction. The central issue before the court was whether the Magistrate was correct in her determination that there was good reason not to record a conviction under section 16 of the Criminal Law (Sentencing) Act 1988 (SA).

The court considered the application of sections 16 and 20 of the Act in relation to the offence under the Road Traffic Act 1961 (SA). Section 16 of the Act provides a discretion for the court not to record a conviction in certain circumstances, while section 20 requires the court to record a conviction in other cases. The court examined the circumstances of the case, including the respondent's personal circumstances, her expression of regret and the potential consequences of disciplinary action. The court acknowledged the seriousness of the offence but also noted the respondent's clean record and her personal situation. The court concluded that the Magistrate had properly exercised her discretion under section 16 of the Act and found that there was good reason not to record a conviction. The appeal by the Crown was dismissed.

The court's decision upheld the Magistrate's determination that there was good reason not to record a conviction, despite the Crown's appeal. The court confirmed that the Magistrate had correctly applied the relevant provisions of the Criminal Law (Sentencing) Act 1988 (SA) in reaching her decision. The outcome reflects the court's recognition of the balance between the need to impose appropriate consequences for the offence and the personal circumstances of the respondent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The learned Magistrate imposed a fine of $500 and disqualified the respondent from holding or obtaining a drivers licence for a period of two months and 17 days in addition to the three months and 13 days that the respondent had already served by virtue of the immediate licence disqualification imposed on 11 November 2009. The Magistrate went on to find that there was good reason not to record a conviction in this case. It is this latter aspect of the sentence which the appellant appeals. The appellant submits that the Magistrate was in error by failing to record a conviction. Background At the date of the offence the respondent was a serving police officer aged 39 years. She had no prior convictions. On 11 November 2009 she was stopped by a random breath testing team at about 11.00 pm as she was driving along Diagonal Road, Glenelg. She returned a positive reading of 0.124 grams in 100 millilitres of blood and was given an immediate licence disqualification. The respondent appeared unrepresented before the Magistrate. Submissions made in the form of a letter to the Magistrate were to the effect that the respondent had been at home cleaning between the hours of 6.00 pm and 9.30 pm on the night of the offence. During that period she consumed four glasses of wine. Later that evening she drove and accompanied her teenage son to a local hotel where she consumed another half a glass of wine. On the journey home from the hotel she was subjected to the random breath test. The respondent referred to her problems with high blood pressure, her recent diagnosis of Lichens disease and a failure by her to take the required medication. The respondent expressed regret and embarrassment for the incident. At the hearing the police prosecutor advised the Magistrate that it was expected that the respondent would face police disciplinary proceedings in respect of the offence, under the provisions of s 40 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA). The Magistrate enquired with the prosecutor as to what possible consequences would eventuate from disciplinary action including the likelihood of termination. The prosecutor was unable to tell the Magistrate what the penalty would be but indicated that in his view termination of the respondent’s employment was unlikely to be the consequence. There was no suggestion, nor could there be, that the offence committed by the respondent was, in the circumstances, trifling. The Magistrate’s focus seems to have been on the respondent’s personal circumstances.Discussion On the hearing of this appeal the respondent was again unrepresented. She indicated that she understood the submission made by the appellant and did not wish to put any alternative submission to the Court, however was prepared to abide the decision of the Court. It is clear from the Magistrate’s reasons that the decision not to record a conviction was based upon the Magistrate’s view that the discretion in s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) not to record a conviction in certain circumstances was open to her.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.