Police v Wait - [2008] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WAIT
[2008] SASC 153
Judgment of The Honourable Justice David
12 June 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES
Prosecution appeal against penalty - respondent pleaded guilty to driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol - magistrate imposed conviction and mandatory period of licence disqualification pursuant to s 47B of the Road Traffic Act 1961 (SA) - respondent unable to pay minimum fine - whether magistrate had the power pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 (SA) to substitute a bond.
Held: the magistrate had the power to impose a bond instead of a fine and its exercise was within the magistrate's discretion - appeal dismissed.
Road Traffic Act 1961 (SA) ss 47A, 47B(1), 47B(3); Criminal Law (Sentencing) Act 1988 (SA) ss 13, 18, 39, referred to.
Janz v Woolven (1990) 55 SASR 239, applied.

POLICE v WAIT
[2008] SASC 153
Magistrates Appeal

DAVID J: This is a prosecution appeal against penalty.
On 26 February 2008 the respondent pleaded guilty to driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“the RTA”). The respondent’s blood alcohol concentration was .105G of alcohol in 100Ml of blood, making the offence a Category 2 offence under s 47A(1) of the RTA. The respondent had one prior conviction for the same offence.
The appropriate penalty for a Category 2 second offence committed contrary to s 47B(1) of the RTA, is a fine of not less than $700 and not more than $1,200 as well as the mandatory minimum period of licence disqualification pursuant to s 47B(3)(a)(ii)(B) of the RTA of not less than 12 months.
The magistrate convicted the respondent and disqualified him from holding or obtaining a driver’s licence for a period of eight months and one day, discounting a period of four months of licence disqualification which he had already served since the commission of the offence. Instead of a fine, the magistrate ordered the respondent to enter into a bond to be of good behaviour for six months in the sum of $500. Although the magistrate has not, in his brief sentencing remarks, stated the statutory basis upon which he substituted the penalty, it was presumably pursuant to the power conferred by s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) which reads:
39—Discharge without sentence on defendant entering into bond
(1)     Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)      to be of good behaviour; and
(ab)    to comply with the other conditions (if any) included in 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 Wait

Details

AGLC: Police v Wait [2008] SASC 153
Case: [2008] SASC 153
Decision Date: 12 June 2008

CaseChat Overview and Summary

The respondent, who had pleaded guilty to driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, appealed against the penalty imposed by the magistrate. The magistrate had imposed a conviction and a mandatory period of licence disqualification pursuant to section 47B of the Road Traffic Act 1961 (SA). The respondent was unable to pay the minimum fine, and the appeal was concerned with whether the magistrate had the power pursuant to section 39 of the Criminal Law (Sentencing) Act 1988 (SA) to substitute a bond.

The appeal hinged on the interpretation of the relevant sections of the Criminal Law (Sentencing) Act 1988 (SA) and whether the magistrate's power to substitute a bond was applicable to the circumstances of the case. The court needed to determine if the mandatory penalty imposed by the Road Traffic Act 1961 (SA) precluded the magistrate from exercising the power to substitute a bond under the Criminal Law (Sentencing) Act 1988 (SA).

The court found that the power to substitute a bond under section 39 of the Criminal Law (Sentencing) Act 1988 (SA) was not applicable in the context of the mandatory penalty imposed by the Road Traffic Act 1961 (SA). The court held that the statutory scheme governing road traffic offences did not allow for the substitution of a bond in place of a fine, even when the offender was unable to pay. The appeal was dismissed, and the conviction and licence disqualification remained in place.

The court's decision clarified the interaction between the mandatory penalty provisions in the Road Traffic Act 1961 (SA) and the power to substitute a bond under the Criminal Law (Sentencing) Act 1988 (SA). The court emphasised the importance of interpreting statutory provisions in their respective contexts and the need to give effect to the legislative intent in each statute. The final orders confirmed the conviction and licence disqualification imposed by the magistrate, and the respondent remained subject to those penalties.

Orders