Police v Reid - [2011] SASC 210

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v REID
[2011] SASC 210
Judgment of The Honourable Justice Gray
1 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - OTHER MATTERS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
Crown appeal against sentence - defendant pleaded guilty in the Magistrates Court to five offences committed on three separate occasions, between November 2010 and June 2011; three offences of driving whilst disqualified and two offences of driving with the prescribed concentration of alcohol, on one occasion with a reading of 0.093 and on the other a reading of 0.108 - each offence constituted a breach of a previously imposed 20 month suspended sentence bond, imposed for similar offending - application made to enforce the breached bond - where the Magistrate exercised his powers pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and discharged the defendant on a supervised bond to be of good behaviour in the sum of $100.00 for a period of 18 months - the Magistrate took into account 42 days the defendant had spent in custody - Magistrate refused to enforce the breached bond - in relation to the first prescribed concentration of alcohol offence, Magistrate imposed a driver's licence disqualification of 12 months, and a disqualification of two years in relation to the second offence - the first was ordered to commence at the expiration of previously imposed periods of disqualification and the second ordered to be served consecutive upon the first - complained on appeal that imposition of a good behaviour bond manifestly inadequate - further complained that the one year licence disqualification for the first prescribed concentration of alcohol offence was below the statutory minimum required by the Road Traffic Act 1961 (SA) - finally complained that Magistrate in error in taking no action in regard to the breaches of the suspended sentence bond, in circumstances where the Magistrate made no finding that there were proper grounds to reduce the suspended sentence or refrain from revoking the suspension.
Consideration of principles relevant to sentencing for contumacious offending which forms part of a pattern of persistent disregard of the rules of the road.
Held: appeal allowed and defendant resentenced - having regard to poor driving record of the defendant, sentence imposed was manifestly inadequate - Magistrate erred in imposing a licence disqualification less than the statutory minimum - Magistrate in error in refraining from revoking the suspended sentence of imprisonment - after making a reduction of 25 per cent on account of guilty pleas and having regard to the 42 days spent in custody defendant resentenced in respect of the three driving whilst disqualified offences to a term of imprisonment of eight months - suspended term of 20 months imprisonment, revoked - in respect of the total term of imprisonment faced by the defendant of 28 months, non-parole period…

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 Reid

Details

AGLC: Police v Reid [2011] SASC 210
Case: [2011] SASC 210
Decision Date: 1 December 2011

CaseChat Overview and Summary

The case involves an appeal by the Crown against the sentence imposed by a Magistrate on a defendant who pleaded guilty to five traffic offences committed between November 2010 and June 2011. The offences included three counts of driving while disqualified and two counts of driving with a prescribed concentration of alcohol. Each offence was a breach of a previously imposed 20-month suspended sentence bond for similar offences. The Magistrate discharged the defendant on a supervised bond of good behaviour and refused to enforce the breached bond. Additionally, the Magistrate imposed a 12-month driver's licence disqualification for the first alcohol offence and a two-year disqualification for the second offence, with the latter to be served consecutively.

The Crown appealed the sentence on several grounds. Firstly, the Crown argued that the imposition of a good behaviour bond was manifestly inadequate. Secondly, it was argued that the one-year licence disqualification for the first alcohol offence was below the statutory minimum. Finally, it was contended that the Magistrate erred in not taking action regarding the breaches of the suspended sentence bond, as no proper grounds were found to reduce the suspended sentence or refrain from revoking the suspension.

The court found merit in the appeal. The sentence imposed by the Magistrate was set aside, and the defendant was resentenced to an immediate term of imprisonment of eight months for the offences of driving while disqualified. The suspension of the 20-month term of imprisonment imposed on 17 March 2010 was revoked, resulting in a total period of imprisonment of 28 months, with a non-parole period of six months. The sentence was to commence when the defendant was taken into custody. Additionally, the court imposed the mandatory statutory minimum driver's licence disqualification of two years in respect of each of the prescribed concentration of alcohol offences, with the periods to commence on 18 March 2012 and 19 March 2015, respectively.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

The licence disqualifications imposed with respect to the prescribed concentration of alcohol offences should reflect the statutory minimum of two years. Accordingly, I impose the mandatory statutory minimum driver’s licence disqualification of two years in respect of each of the prescribed concentration of alcohol offences of 20 November 2010 and 12 February 2011. The first period is ordered to commence on 18 March 2013 at the expiration of previous disqualifications, and the second is to commence on 19 March 2015, ending on 19 March 2017.Conclusion Appeal allowed. Sentence imposed by the Magistrate set aside. Defendant resentenced to an immediate term of imprisonment of eight months with respect to the offences of driving whilst disqualified. The suspension of the term of imprisonment of 20 months imposed on 17 March 2010 is revoked. The total period of imprisonment faced by the defendant is 28 months. A non-parole period of six months is fixed. The sentence is to commence when the defendant is taken into custody. The defendant is to surrender to the Port Lincoln police at 10:00am on Monday 5 December 2011. The defendant is disqualified from holding or obtaining a driver’s licence for a period of two years in respect of each of the prescribed concentration of alcohol offences of 20 November 2010 and 12 February 2011. The first period is to commence on 18 March 2012 and the second to commence on 19 March 2015, ending on 19 March 2017.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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