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 143Magistrates 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…
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- Seeley v Police [2016] SASC 143
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- [2016] SASC 143
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: LOVELL J
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