R, J v Police - [2006] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
R, J v POLICE
[2006] SASC 153
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Layton)
25 May 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED
Appeal against sentence - appellant sentenced for two offences of driving whilst disqualified - appellant under 18 when he committed the first of the two offences - sentenced by a Judge of the Youth Court - Judge acting as a magistrate when sentencing in respect of the adult offence - for the youth offence appellant sentenced to driver's licence disqualification for three months and $300 fine - for the adult offence appellant sentenced to three months imprisonment, to be suspended, and a further driver's licence disqualification of eight months to be concurrent with the other disqualification - appeals against each of the sentences heard together by the Full Court - whether the sentences imposed were manisfestly excessive - Held: sentences manifestly excessive - appeal allowed - appellant re-sentenced - driver's licence disqualification for one month and fine of $300 imposed on the youth offence - sentence of imprisonment for one month, to be suspended, imposed on the adult offence.
Magistrates Act 1983 s 22; Criminal Law (Sentencing) Act 1988 s 11, referred to.
Crafter v Police [2001] SASC 336; Police v Cadd (1997) 69 SASR 150, discussed.
Sadler v Crossman (1988) 47 SASR 331; Khammash v Police (1999) 29 MVR 561; Peart v Police (2003) 229 LSJS 194; Woodward v Police (2000) 210 LSJS 16; Ironside v Police (1999) 204 LSJS 186; R v Manunta (1989) 54 SASR 17; R v Doecke (1999) 205 LSJS 304; Elliott v Harris (No 2) (1976) 13 SASR 516; R v Morse (1979) 23 SASR 98, considered.

R, J v POLICE
[2006] SASC 153
Full Court: Sulan, Anderson and Layton JJ

SULAN J: I would allow the appeal. I agree with the reasons of Layton J. I agree with the orders Layton J proposes.
ANDERSON J I agree with the reasons of Layton J. I agree with the orders Layton J proposes. I would also allow the appeal
LAYTON J: This is an appeal against sentence imposed in the Youth Court. The appellant pleaded guilty to three offences. The first offence was committed whilst he was a youth. The second and third were committed two weeks later when the appellant was 18 years old. The learned sentencing judge, at the request of defence counsel, exercised his power as a District Court judge to sit as a magistrate,[1] and sentenced the appellant for all offences in the Youth Court.
[1]

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 R, J v Police

Details

AGLC: R, J v Police [2006] SASC 153
Case: [2006] SASC 153
Decision Date: 25 May 2006

CaseChat Overview and Summary

The appellant was sentenced by a Youth Court Judge for two separate offences: driving while disqualified as a juvenile and as an adult. The sentences imposed were a three-month driver's licence disqualification and a $300 fine for the juvenile offence, and a three-month suspended imprisonment and an eight-month driver's licence disqualification for the adult offence, to run concurrently with the juvenile offence. The appellant, who was under 18 at the time of the first offence, appealed the sentences, arguing they were manifestly excessive. The Full Court heard the appeal and was tasked with determining whether the sentences were indeed manifestly excessive, and if so, what appropriate re-sentencing should be imposed.

The legal issues before the court included whether the sentences for the two offences were manifestly excessive and whether the Youth Court Judge, acting as a magistrate for the adult offence, appropriately exercised their sentencing discretion. The court had to consider the principles of sentencing for juvenile and adult offenders, the nature and circumstances of the offences, and the principles of proportionality and justice. The court also had to assess whether the sentences imposed by the Youth Court Judge were an appropriate response to the offences committed by the appellant.

The Full Court found that the sentences imposed were manifestly excessive. The court noted the appellant's age at the time of the juvenile offence and the nature of the offences, which were relatively minor driving incidents. The court held that the sentences did not reflect the principles of proportionality and justice. The Full Court re-sentenced the appellant, imposing a one-month driver's licence disqualification and a $300 fine for the youth offence, and a one-month suspended imprisonment for the adult offence. The court considered these sentences to be more appropriate and proportionate to the offences committed.

The Full Court allowed the appeal, set aside the original sentences, and imposed the re-sentences as outlined. The appellant was to serve a one-month driver's licence disqualification and a $300 fine for the youth offence, and a one-month suspended imprisonment for the adult offence.

Orders