SHEEAN v POLICE
[1999] SASC 187
Full Court: Prior, Perry and Mullighan JJ
PRIOR J I agree with Mullighan J that, on the material before the magistrate, there was no proper basis to reduce the sentence of one month’s imprisonment imposed but suspended on 5 June 1997.
I also agree that the appellant’s circumstances and his offending on 11 March 1998 did not call for the unusual course of non-custodial sentences for these further breaches of s91 of the Motor Vehicles Act 1959. In my view, both the driving from the beach and the later driving that day were both contumacious. I would have imposed a single custodial sentence of imprisonment for these breaches. That is not to say that the course adopted by the judge on appeal was erroneous in imposing separate sentences for these two offences.
I think the judge was entitled to intervene to maintain adequate standards of punishment for subsequent breaches of s91. If that was all to the appeal, I would have dismissed this appeal. However, the evidence of Mr Byrne cannot be overlooked, even if it fails to be fresh evidence within the proper meaning of that phrase in s42(4) of the Magistrates Court Act 1991. The fact that such material should have been available to the judge on appeal calls for the consideration of that material now. Taking note of it, I incline to the view that whilst maintaining that cumulative sentences of imprisonment for the breach of bond and subsequent breaches of s91 were appropriate and called for a total of three months imprisonment to be served, the circumstances now before this court warrant simply allowing the appeal from the single judge. The consequence is that the sentences imposed by the magistrate stand, to the present appellant’s advantage against the reality that sentences of some months imprisonment should have been carried into effect or imposed.
The magistrate had no material before him to justify the orders he made when revoking the suspended sentence. The sentences imposed by the magistrate for the March 1998 offences were manifestly inadequate. The magistrate’s orders were properly reviewed by this Court.
Whilst concurring in the orders proposed by Mullighan J I point out that in cases like this an executive discretion with respect to proper sentences of imprisonment should not be overlooked. Home detention is a means by which any real risk arising from the imposition of an appropriate sentence of imprisonment may be avoided.
PERRY J. I agree that the appeal should be allowed for the reasons given by Mullighan J. I agree with the orders suggested by him.
During the course of the argument on appeal, reference was made to the decision of the Full Court in Police v Cadd and Ors,[1] and to my decision in Bates v Police.[2] As it has been suggested that there may be some tension between the two decisions, it is appropriate that I add some further comments as to that aspect of the matter.
[1] (1997)…
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- [1999] SASC 187
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Orders
Orders of the court
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Established by: PERRY J, MULLIGHAN J
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