Rucioch v Police

[2004] SASC 127

Rucioch v Police
[2004] SASC 127

Magistrates Appeals (Criminal)

1. DOYLE CJ:          Mr Rucioch has appealed against convictions recorded by the Magistrates Court and the sentence imposed by the Magistrates Court.

2. Mr Rucioch pleaded guilty to two charges charged on the one complaint. He was charged with driving a motor vehicle on Grand Junction Road without due care, contrary to s 45 of the Road Traffic Act 1961 (SA) (“the RTA”). He was further charged with being the driver of a motor vehicle on Grand Junction Road, who was turning right at an intersection with traffic lights, the intersection of Grand Junction Road and Eastern Parade, who did not give way to an oncoming vehicle that was going straight ahead at the intersection, contrary to Rule 62 (c) of the Australian Road Rules.

3. The first offence attracted a maximum penalty of a fine not exceeding $1,250.00; s 164A(2) of the RTA. On conviction, the Court had power to order that he be disqualified from holding or obtaining a driver’s licence; s 168(1) of the RTA. The second offence attracted a maximum penalty of a fine of $1,250.00; Rule 50(1) of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999. An offence against the provision of the Road Rules also attracts the power to disqualify under s 168(1) of the RTA: s 4(1) of the Acts Interpretation Act 1915 (SA).

4. After pleas of guilty were entered, the Magistrate heard submissions from the police prosecutor and from counsel for Mr Rucioch. No evidence was given on either side. The Magistrate had before her witness statements obtained by the police, and heard oral submissions from counsel for Mr Rucioch. The Magistrate recorded a conviction on each count, imposed a fine of $750.00, and ordered that Mr Rucioch be disqualified from holding or obtaining a driver’s licence for two years six months. I assume that the Magistrate exercised her powers under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one penalty for the two offences.

5. The first ground of appeal is that the Magistrate erred in recording a conviction on both counts.  Mr Dadds, counsel for Mr Rucioch, on appeal submitted that as each offence arose from the same facts, the Magistrate should have required the prosecutor to elect for a conviction on one or other count, and should not have convicted on each count.  No such submission was put to the Magistrate.

6. The second ground of appeal is that the sentence is excessive.  In support of this submission Mr Dadds argued that the Magistrate gave undue weight to the consequences of the offences, and insufficient weight to the fact that the offences involved momentary inattention, and insufficient weight to Mr Rucioch’s personal circumstances.

7. Mr Dadds also argued that the Magistrate was obliged to accept facts put in mitigation by counsel for Mr Rucioch, because those facts constituted a version of the facts reasonably open in the circumstances.  He submitted that the…