Scholes v Police - [2005] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHOLES v POLICE
Judgment of The Honourable Justice Anderson
8 April 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
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
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Appellant pleaded guilty to driving under the influence and driving whilst disqualified - the driving while disqualified was a first offence of that type - Magistrate sentenced the appellant to three months imprisonment to be suspended on entering into a bond in relation to the driving whilst disqualified - appellant argues sentence was manifestly excessive - failure by the Magistrate to make any specific finding about whether the driving was 'contumacious' - appellant a diability pensioner who suffers from major depression - held: appeal allowed - driving not contumacious - sentence manifestly excessive - sentence of suspended imprisonment quashed - appellant to re-enter a good behaviour bond for two years, three months and two weeks - appellant to perform sixty hours of community service over six months.
Criminal Law (Sentencing) Act 1988 s38, s39(1); Motor Vehicle Act 1959 s91(5), referred to.
White v Police (2000) 76 SASR 430, applied.
Police v Cadd (1997) 69 SASR 150; Rhodes v Police [1999] SASC 191; R v Morse (1979) 23 SASR 98, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"contumacious"

SCHOLES v POLICE
[2005] SASC 116
Magistrates Appeal

ANDERSON J By an amended notice of appeal, the appellant appeals against an order of a Magistrate made on 22 December 2004. The appeal relates solely to penalty. The appellant also seeks an extension of time. The respondent put nothing against this request and accordingly I allow the extension.
The appellant pleaded guilty to two counts relating to his driving on 3 September 2004 at Maitland. The first count was driving under the influence, and he was fined $1,500 plus costs. In addition he was disqualified from holding or obtaining a driving licence for a period of three years to commence on 25 February 2006. That order was made in error because the Magistrate was informed incorrectly that there was an existing three-year suspension, whereas in fact the existing suspension was until further order.
The second count of driving with a prescribed concentration of alcohol in excess of 0.05 was withdrawn upon the plea being entered to the first count.
On the third count, the appellant pleaded guilty to driving under disqualification contrary to s91(5) of the Motor Vehicle Act 1959 (SA) and was convicted and sentenced to a term of three months imprisonment which term of imprisonment was suspended upon the appellant entering into a bond to be of good behaviour for three years.
The matter was dealt with by 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 Scholes v Police

Details

AGLC: Scholes v Police [2005] SASC 116
Case: [2005] SASC 116
Decision Date: 8 April 2005

CaseChat Overview and Summary

In the matter of Scholes v Police, the appellant contested the sentence handed down by the Magistrates' Court for charges of driving under the influence and driving while disqualified. The appellant, a disability pensioner suffering from major depression, pleaded guilty to the charges. The Magistrate imposed a sentence of three months imprisonment, which was to be suspended upon the appellant entering into a bond in relation to the driving while disqualified charge. The appellant argued that the sentence was manifestly excessive and that the Magistrate had failed to make any specific finding as to whether the driving was 'contumacious'. The central legal issues in this case were whether the sentence was manifestly excessive and whether the Magistrate failed to take into account relevant factors in determining the sentence.

The court held that the appeal should be allowed as the sentence was manifestly excessive. The court noted that the driving was not contumacious, meaning it was not done in a defiant or contemptuous manner. The court also considered the appellant's disability pension and major depression, which were relevant factors in determining the appropriate sentence. The court held that the Magistrate's failure to make any specific finding about whether the driving was 'contumacious' was a material error in the sentencing process. As such, the sentence of suspended imprisonment was quashed, and the appellant was ordered to re-enter a good behaviour bond for two years, three months, and two weeks. In addition, the appellant was ordered to perform sixty hours of community service over six months.

The court's decision in this case highlights the importance of considering relevant factors in determining an appropriate sentence. The court also emphasised the need for Magistrates to make specific findings in relation to the nature of the offence when determining a sentence. The final orders of the court in this case were that the appellant was to re-enter a good behaviour bond for two years, three months, and two weeks and to perform sixty hours of community service over six months.

Orders