Reed v Police No. Scciv-04-226

[2004] SASC 115

REED  v  POLICE
[2004] SASC 115

Magistrates Appeal

1. DUGGAN J.         The appellant appeared before the Magistrates Court on charges of illegal use of a motor vehicle and driving whilst unlicensed.  He pleaded guilty to the charges.  He was sentenced to imprisonment for one month on the first charge and the sentence was suspended upon his entering into a bond in the sum of $100 for one year.  A conviction was imposed in respect of the second charge and a fine of $100 was imposed.  He was disqualified from holding or obtaining a driver’s licence for a period of 12 months.

2. The appellant has appealed against the imposition of the term of imprisonment.  The notice of appeal was filed a few days after the time limit had expired, but an extension of time was granted during the hearing of the appeal.

3. At the hearing before the magistrate the court was told that the appellant admitted driving the vehicle on the occasion of the offence.  He said that the vehicle was driven by a friend to the house of the appellant’s partner whom he was visiting at the time.  The friend told him that the vehicle was stolen and invited him to drive it.  The appellant then drove the vehicle along the street in which the house is located before returning it to his acquaintance.  The appellant was sentenced on the basis of this version.

4. The appellant was 20 years of age at the time of sentencing.  He was in a relationship with a partner and he has two young children aged two and three.  The prosecutor told the court that the appellant has a history of mainly traffic offending.  He has twelve prior convictions for driving whilst unregistered and nine prior convictions for driving uninsured and without a licence.  The court was told that he did not have any prior convictions for illegal use of a motor vehicle or dishonesty.

5. The magistrate acknowledged that the facts upon which the offence of illegal use was based placed the offence at the lower end of the scale of seriousness for offences of this nature.  However, she pointed out that such offences are prevalent and that general deterrence is important in relation to this category of offending.  The magistrate said that she took into account other possible sentences but considered that the a sentence of imprisonment was appropriate.

6. Although the appellant has a number of convictions for traffic offences, this was the first occasion on which he had been before the court on an offence for which imprisonment was one of the sentencing options.  His youth was also an important factor to take into account.

7. The main ground of appeal complains that the magistrate erred in failing to have regard to s 11 of the Criminal Law (Sentencing) Act 1988. In so far as it is relevant s 11 provides as follows:

   “(1)   A sentence of imprisonment may only be imposed –

   (a)     if, in the opinion of the court –

   (i)the defendant has shown a tendency to violence towards other persons; or

   (ii)the defendant is likely to commit a serious offence if allowed to go at large; or

   (iii)the defendant has previously been convicted of an offence punishable by imprisonment; or

   (iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or

   (b)if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).”

8. The magistrate did not refer specifically to this section in her sentencing remarks. The only possible basis permitting the imposition of a sentence of imprisonment under this section is that referred to in s 11(1)(a)(iv).

9. Whilst the circumstances of the commission of the illegal use may, in some cases, satisfy the requirements of s 11(1)(a)(iv), it is difficult to see how this could be so in the present case. According to the agreed sentencing basis, the appellant was not involved in the original taking of the vehicle, but drove it for a short period along the street in which the house he was visiting was located. In my view, the level of seriousness of the incident was not such as to lead to the conclusion that a penalty other than a sentence of imprisonment would be inappropriate.

10. For these reasons, the appeal will be allowed and the sentence of imprisonment imposed in relation to the first count will be set aside.  In lieu thereof the appellant will be convicted and required to enter into a bond to be of good behaviour in the sum of $200 for a period of two years.  It will be a condition of the bond that he appear before the court for sentence if he fails during the term of the bond to comply with any of its conditions.  In all other respects the sentence and orders of the magistrate are confirmed.