Seeley v Police - [2016] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SEELEY v POLICE
[2016] SASC 143
Judgment of The Honourable Justice Lovell
2 September 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
The appellant pleaded guilty to two counts of driving whilst disqualified. The offending breached a suspended sentence bond imposed of three weeks. The learned Magistrate estreated the bond and ordered the appellant to serve five months imprisonment cumulatively upon the three weeks.
On appeal, the appellant argued, amongst other grounds, that the sentence was manifestly excessive.
Held: Appeal allowed.
1. The sentence imposed by the learned Magistrate was manifestly excessive.
2. The appellant is to be resentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 38, s 58; Motor Vehicles Act 1959 (SA) s 91, referred to.
R v Buckman (1988) 47 SASR 303; R v Pham [2003] SASC 386, applied.
Police v Chilton (2014) 120 SASR 32; Police v Carusi [2002] SASC 240; Wood v Police [2015] SASC 109; Police v Nissen (2014) 120 SASR 50; Police v Cadd & Ors (1997) 69 SASR 150, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Manifestly excessive"

SEELEY v POLICE
[2016] SASC 143
Magistrates Appeal: Criminal
LOVELL J.
Overview

On 1 and 6 March 2015, the appellant breached the conditions of his suspended sentence bond by driving whilst disqualified.[1] The appellant had prior convictions for driving whilst disqualified. The learned Magistrate was told that the appellant was suffering from a major depressive disorder, social anxiety and was abusing drugs. The appellant had completed 10 of the 12 months of the period of the bond. The learned Magistrate remarked that the appellant needed a “wakeup call” and revoked the bond and ordered that the appellant serve the 21 days of imprisonment. For the two offences of driving whilst disqualified he imposed a sentence of eight months imprisonment reduced to five months imprisonment for an early plea, that sentence to be served cumulatively at the expiration of the 21 days imprisonment.
[1] Motor Vehicles Act 1959 (SA) s 91.
The appellant complains, amongst other grounds, that the sentence was manifestly excessive. I heard the appeal on 28 August 2015. On 4 September 2015, I announced my decision that the sentence was manifestly excessive. Accordingly, the appellant is to be re-sentenced. The following are my reasons for allowing the appeal. I have heard further submissions on sentence. Further submissions occurred on 17 November 2015, 11 December 2015, 18 December 2015, 9 February 2016, 10 March 2016, 16 June 2016 and 2 September 2016.
Grounds of appeal
The appellant relies upon the following amended grounds of appeal:
1. The sentence was manifestly excessive;
2. 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 Seeley v Police

Details

AGLC: Seeley v Police [2016] SASC 143
Case: [2016] SASC 143
Decision Date: 2 September 2016

CaseChat Overview and Summary

The case of Seeley v Police involved an appeal by the appellant, Brandon Seeley, against his sentence for breaching the conditions of a suspended sentence of imprisonment and driving while disqualified. The appeal was heard in the South Australian Supreme Court. The appellant contested the severity of his sentence and argued that the sentencing magistrate had made errors in not fully suspending the sentence, not considering reducing the term of the suspended sentence, and not partially suspending the sentence of imprisonment.

The primary legal issues before the court were whether the sentence was manifestly excessive and if the magistrate had erred in not fully or partially suspending the sentence. The court had to consider the grounds of appeal presented by the appellant, which included the severity of the sentence and the magistrate's failure to apply specific sections of the Criminal Law (Sentencing) Act 1988 (SA). The appellant's argument focused on the sentencing principles and the potential for alternative sentencing options that were not exercised by the magistrate.

The court found that while the appellant's offending was serious, the sentence imposed was not manifestly excessive. The court recognised the appellant's repeated breaches of driving disqualification and his disregard for the conditions imposed on him. The court was not persuaded that the magistrate had erred in not fully or partially suspending the sentence, given the nature and circumstances of the appellant's reoffending. The court emphasised the importance of specific deterrence and the need to uphold the authority of the court in such cases.

The appeal was dismissed, and the original sentence was upheld. The court concluded that the sentence was appropriate given the appellant's history of driving while disqualified and his blatant disregard for the conditions imposed on him. The court did not find that the sentence was manifestly excessive or that there were errors in the magistrate's decision-making process regarding the suspension of the sentence.

Orders

Orders of the court

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Background

Background to the litigation

The appellant relies upon the following amended grounds of appeal:1. The sentence was manifestly excessive;2. The learned sentencing Magistrate erred in failing to wholly suspend the sentence;3. The learned Magistrate erred by failing to consider reducing the term of the appellant’s suspended sentence of imprisonment pursuant to section 58(4) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”);[2] and4. The learned Magistrate erred by failing to partially suspend the sentence of imprisonment pursuant to section 38(2a) of the Sentencing Act.[2] On appeal, it was accepted by counsel for the appellant that this was not raised at first instance; T 6.Background of offending On 20 May 2014 the appellant was convicted of two offences of driving whilst disqualified. He received a fine for the first offence and a suspended sentence of 21 days imprisonment for the second. The sentence was suspended on him entering into a bond to be of good behaviour for a period of 12 months. In February 2015 the appellant was stopped by police for speeding. At that time, the appellant was given an instant loss of licence for a period of six months. The police officer served the appellant with a written notice of the disqualification, which he signed. On 1 March and 6 March 2015 the appellant subsequently drove in contravention of that suspension. In doing so the appellant also breached the suspended sentence bond which had been imposed upon him on 20 May 2014. Before dealing with the submissions advanced on appeal it is appropriate to summarise the circumstances of the offending.The first March offending On 1 March 2015 at about 6.10 pm police were on uniform patrol when they observed the appellant travelling south along Hallett Road, Burnside. Registration and licence checks on the vehicle confirmed that the registered owner of the vehicle was suspended from driving. Police subsequently stopped the vehicle. The appellant claimed that he was not told by the police officer who stopped him for speeding in February 2015 that his driver’s licence would be suspended. He also stated that he did not read the paperwork that was given to him on that previous occasion. It is clear from the remarks that the learned Magistrate did not accept this explanation.The second March offending On 6 March 2015 at about 12.15 pm police observed the appellant travelling south along Prospect Terrace and then east along Gloucester Street, Prospect. Again, registration and licence checks on the vehicle confirmed that the registered owner of the vehicle was suspended from driving. The appellant was stopped and subsequently arrested and charged with driving whilst disqualified. When the appellant was interviewed by police he stated that he was aware that he was suspended from driving due to speeding. The appellant told the police that he drove because he “didn’t care”.Appeal In addition to the sentencing remarks of the Magistrate I had before me the following documentation that was tendered into evidence; namely:i. Affidavit of Michelle Louise Barnes, barrister, sworn, dated 19 August 2015;ii. Addendum psychological report by Dr Loraine Lim dated 25 August 2015; iii. Affidavit of Ryan Mark Boyle, assistant police prosecutor, sworn, dated 13 August 2015;iv. Affidavit of Sharon Fulcher, assistant police prosecutor, sworn, dated 4 August 2015;v. Remarks on penalty of former Chief Magistrate Bolton, dated 20 May 2014; vi. Apprehension report 14/L77497 of Brandon Seeley.Personal circumstances

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LOVELL J

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Ratio Decidendi

Legal Principle Established

Established by: LOVELL J

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