Police v Summers - [1998] SASC 6950

POLICE v SUMMERS
[1998] SASC 6950

Magistrates Appeal: Criminal

OLSSON J. This matter came before me pursuant to an order of the Full Court made on the 11 September 1998. By that order the Full Court allowed an appeal against an order made by Perry J in relation to an appeal from a magistrate, set aside his order and remitted the proceedings for rehearing before another Judge. Having heard counsel I dismissed the appeal from the decision of the learned magistrate. I now publish my reasons for so doing.
Most of the relevant background facts are set out in the judgment written by me as a member of the Full Court (see Summers v Police [1998] SASC 6845). There is, therefore, no need to retrace all of this ground in the course of these reasons. Suffice to say that I am now required to reconsider afresh a prosecution appeal against an order of a stipendiary magistrate suspending two sentences of imprisonment which he imposed, consequent upon the conviction of the respondent of two separate offences of driving disqualified. The appeal also challenged the refusal of the learned magistrate to revoke the suspensions of four earlier custodial sentences, by reason of the breaching of bond conditions to be of good behaviour.
Full details of the earlier suspended sentences are set out in my above judgment and I will not here repeat them. Three of them were for illegal use of a motor vehicle. The fourth was for an offence of driving disqualified. Two offences of illegal use occurred on 13 September 1993, whilst the remaining two offences were committed on 18 August 1995. The further offences before the learned magistrate occurred on 7 January 1996 and 6 March 1996 respectively.
In my judgment I described these last mentioned offences in the following terms:-
“The first arose from an incident which occurred on the date in question when police officers on mobile uniform patrol (who were acquainted with the appellant and aware that he was subject to licence disqualification) observed him riding a motorcycle over a relatively short distance on Forest Avenue, Gray Street and Winifred Avenue, Black Forest. When stopped and questioned he admitted the offence. He stated that the motorcycle was not his - that it belonged to the "Honda Shop" and he was taking it for a test drive.
The second related to an incident which occurred at about 11 p.m. on 6 March 1996. A police mobile uniform patrol stopped a yellow Ford X - C motor vehicle being driven by the appellant along Grove Avenue, Marleston, because of an apparent defect in its lighting. A licence check indicated that the appellant was driving whilst under suspension. When questioned he said that he was aware that this was the situation and that it was an offence to drive. Bearing in mind the time of night, he told the police what seemed, at the time, to have been a somewhat unlikely story that he had just purchased 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.

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Details

AGLC: Police v Summers [1998] SASC 6950
Case: [1998] SASC 6950
Decision Date: 10 November 1998

CaseChat Overview and Summary

The Magistrates Appeal in Police v Summers was heard by Olsson J. The appeal arose from the decision of a stipendiary magistrate to suspend two sentences of imprisonment imposed on the respondent for separate offences of driving while disqualified. The appeal also contested the magistrate's refusal to revoke the suspensions of four earlier custodial sentences due to the breaching of bond conditions to be of good behaviour. The appeal was dismissed by Olsson J, who found the magistrate's decision to be appropriate given the circumstances.

The key legal issues were whether the magistrate had proper grounds to excuse the breaches of the earlier bonds and whether the sentences imposed were disproportionate to the seriousness of the crimes. Olsson J considered that while the breaches of the bonds were serious, the extensive delay in resolving the case and the potential double jeopardy issue warranted a merciful approach. The court found that the personal circumstances of the respondent, including his efforts towards rehabilitation, justified the magistrate's decision to suspend the sentences and excuse the breaches.

In summary, Olsson J dismissed the appeal, noting that the extreme delay and the potential for double jeopardy placed the case in an exceptional category. The court acknowledged the deliberate nature of the respondent's breaches but concluded that it was not just to require him to serve the custodial sentences at that stage. The decision reflects a balanced consideration of the respondent's rehabilitation efforts and the unique circumstances of the case.

Orders