Police v Waller - [2011] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WALLER
[2011] SASC 232
Judgment of The Honourable Justice Gray
16 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
Police appeal against sentence - the defendant pleaded guilty to the offence of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA) - the circumstance of aggravation was that the defendant drove with a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood - where the defendant turned right under heavy acceleration at a corner, apparently hit some rocks on the road, overcorrected, went out of control, left the road and collided with a fence - the Magistrate disqualified the defendant from holding or obtaining a driver's licence for a period of six months and, pursuant to section 18 of the Criminal Law (Sentencing) Act 1988 (SA), imposed a fine of $1,500.00 in lieu of a term of imprisonment - whether the period of driver's licence disqualification was manifestly inadequate.
Held: Appeal allowed - the penalty imposed by the Magistrate did not adequately reflect the seriousness of the defendant's offending and was manifestly inadequate - after giving the defendant credit for a period of six months in which the defendant was disqualified from holding or obtaining a driver's licence for the same offending, the defendant was disqualified from holding or obtaining a driver's licence for a further six months - accordingly, the total period of driver's licence disqualification imposed was 12 months - the other orders of the Magistrate confirmed.
Criminal Law (Sentencing) Act 1988 (SA) s 18; Road Traffic Act 1961 (SA) s 45 and s 47B, referred to.

POLICE v WALLER
[2011] SASC 232
Magistrates Appeal
GRAY J:

This is a police appeal against sentence.
The defendant and respondent, Christopher Graeme Waller, pleaded guilty to the offence of aggravated driving without due care.[1] The circumstance of aggravation was that he drove with a concentration of 0.08 grams or more of alcohol in 100 millilitres of his blood. His blood alcohol concentration was 0.130 grams of alcohol in 100 millilitres of blood. On the defendant’s plea, a second count of driving with the prescribed concentration of alcohol in his blood[2] was withdrawn.
[1] Contrary to section 45 of the Road Traffic Act 1961 (SA).
[2] Contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA).
The Magistrate considered that it was appropriate to disqualify the defendant from holding or obtaining a driver’s licence for the minimum mandated statutory period of six months. At the time of sentence, the defendant had already served a period of instant driver’s licence suspension from the time of the offence of four months and 18 days. The Magistrate gave credit for this period and ordered suspension for a further period of one month and 12…

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 Waller

Details

AGLC: Police v Waller [2011] SASC 232
Case: [2011] SASC 232
Decision Date: 16 December 2011

CaseChat Overview and Summary

In Police v Waller, the respondent pleaded guilty to driving with a blood alcohol concentration of 0.08 grams or more, resulting in an aggravated driving offence. The respondent turned sharply at a corner, hit rocks, overcorrected, lost control of the vehicle, and collided with a fence. The Magistrate imposed a six-month disqualification from holding or obtaining a driver's licence, and a fine of $1,500 in lieu of imprisonment. The police appealed, arguing that the sentence was manifestly inadequate.

The court had to determine whether the penalty imposed by the Magistrate was appropriate in light of the seriousness of the offence. The court considered the gravity of the offence, including the blood alcohol concentration, the nature of the collision, and the risk to the public. The court also considered the need to deter the respondent and others from committing similar offences. The court found that the six-month disqualification was insufficient to reflect the seriousness of the offence.

The court concluded that the penalty imposed by the Magistrate did not adequately reflect the seriousness of the respondent's offending and was manifestly inadequate. The court gave credit for the period of four months and 18 days that the respondent had already spent on instant licence disqualification and a further period of one month and 12 days imposed by the Magistrate. The court imposed an additional six months of disqualification, resulting in a total of 12 months of disqualification. The court confirmed the other orders of the Magistrate.

The appeal was allowed. The respondent was disqualified from holding or obtaining a driver's licence for a further period of six months, commencing at 12:01 am on Saturday 17 December 2011. The other orders of the Magistrate were confirmed.

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

I consider that the defendant should be disqualified from holding or obtaining a driver’s licence for a period of 12 months. I would give credit for the period spent on instant licence disqualification of four months and 18 days and I would give credit for the further period of disqualification of one month and 12 days imposed by the Magistrate. Accordingly, it is appropriate to impose a driver’s licence disqualification for a further six months. Conclusion The appeal is allowed. The defendant is disqualified from holding or obtaining a driver’s licence for a further period of six months commencing at 12:01 am on Saturday 17 December 2011. Otherwise, the orders of the Magistrate are confirmed.

Ratio Decidendi

Legal Principle Established

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