Soroba v Police - [2005] SASC 259

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SOROBA v POLICE
Judgment of The Honourable Justice Layton
18 July 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
Appellant charged and pleaded guilty to three sets of driving offences on three different complaints over a 5 month period- cumulative penalty of licence disqualification for three years and nine months imposed by a magistrate- whether manifestly excessive- whether magistrate failed to have regard to the totality of the sentence- whether proceedings before the magistrate were fair as appellant unrepresented- financial and personal circumstances of the appellant considered- appeal allowed- sentence to be served concurrently.
Road Traffic Act 1961 (SA) s 42, s 45, s 47; Motor Vehicles Act 1959 (SA) s 98aab(2); Australian Road Rules r 73(2)(a), referred to.
Cooling v Steel (1971) 2 SASR 249; Cronssen v R (1936) 55 CLR 509; Cross v Police [2001] SASC 47; Day v Conn (1979) 22 SASR 372; Galic v South Australian Police (Unreported, Supreme Court of South Australia, Debelle J, 24 January 1997, Judgment No S5992); Griffiths v The Queen (1989) 167 CLR 372; Joanni v Police [2004] SASC 225; Mill v The Queen (1988) 166 CLR 59; Pietkun v Police (Unreported, Supreme Court of South Australia, Perry J, 15 December 1997, Judgment No S6490); Police v Nowak (2000) 76 SASR 551; R v Rossi (1988) 142 LSJS 451; R v Power [2003] SASC 288, considered.

SOROBA v POLICE
[2005] SASC 259
Magistrates Appeal

LAYTON J: This is an appeal against the decision of a Magistrate, made on 8 March 2005 imposing a cumulative penalty of licence disqualification of three years and nine months for a series of driving offences committed by the appellant in February, May and July of 2004.
The Facts
The appellant was charged and pleaded guilty to three sets of driving offences on three different complaints, namely 7 February 2004 (AMC-04- 4056) 27 May 2004 (AMC-04-12549) and 17 July 2004 (AMC-04-15913).
One count was subsequently withdrawn by the prosecution,[1] and the appellant pleaded guilty to and was tried on the following nine offences:
[1] (AMC-04-4056) 7 February 2004 Leave granted to dismiss for want of prosecution Count 1: failure to stop before reaching stop line at red traffic light.
On 7 February 2004 (AMC-04-4056), four offences, namely, failure to comply with a request to stop a vehicle contrary to s 42 of the Road Traffic Act 1961 (SA) (“the RTA”); driving without due care contrary to s 45 of the RTA; failure to comply with a direction of an alcotest/breath analysis contrary to s 47e of the RTA and failure to carry or produce a licence or permit when requested contrary to s 98aab(2) of the Motor Vehicles Act 1959 (SA) (“the MVA”).
On 27 May 2004, three offences,…

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.

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Details

Case: [2005] SASC 259
Decision Date: 18 July 2005

CaseChat Overview and Summary

Soroba was charged with three sets of driving offences, each occurring over a five-month period, and pleaded guilty. The cumulative penalty imposed by the magistrate was a licence disqualification of three years and nine months. Soroba appealed against the sentence, arguing it was manifestly excessive and that the magistrate had failed to consider the totality of the sentence and ensure fair proceedings due to his unrepresented status. The appeal was heard by the court which examined the principles of sentencing, particularly the principle of totality and the fairness of the proceedings.

The legal issues before the court included whether the sentence was manifestly excessive, whether the magistrate had adequately considered the principle of totality, and whether the proceedings were fair to an unrepresented appellant. The court noted that the principle of totality requires a sentencer to review the aggregate sentence to ensure it is just and appropriate. The court also had to consider the appellant's personal and financial circumstances, which were provided during the appeal.

The court found that the sentence was manifestly excessive as it did not properly consider the principle of totality. The cumulative penalty of three years and nine months was disproportionate to the individual penalties for each offence. Additionally, the court found that the magistrate failed to ensure fair proceedings given that Soroba was unrepresented. The court considered the appellant's personal and financial circumstances, which were provided during the appeal, and concluded that the proceedings were not fair. The appeal was allowed, and the sentence was to be served concurrently.

The final orders of the court were that the sentence was to be served concurrently, reducing the overall penalty to a total of three years. The court emphasised the importance of considering the principle of totality and ensuring fair proceedings for unrepresented defendants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 47B of the RTA, provides the penalties for offences which involve a concentration of alcohol which is a category 3 offence, as was the case at bar, for the 27 May and 17 July offences:[2] [2] Road Traffic Act 1961 (SA) s 47A Interpretation- “A category 3 offence means an offence against s 47B(1) involving a concentration of alcohol of .15 grams or more in 100 millilitres of blood.”47B—Driving while having prescribed concentration of alcohol in blood(1) A person must not—(a) drive a motor vehicle; or(b) attempt to put a motor vehicle in motion,while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.Penalty: For a first offence—…(c)being a category 3 offence—a fine of not less than $700 and not more than $1 200.For a second offence—…(c)being a category 3 offence—a fine of not less than $1 200 and not more than $2 000.(3) Where a court convicts a person of an offence against subsection (1) (other than a category 1 offence that is a first offence), the following provisions apply:(a)the court must order that the person be disqualified from holding or obtaining a driver's licence—(i) in the case of a first offence—…(B)being a category 3 offence—for such period, being not less than 12 months, as the court thinks fit;(ii) in the case of a second offence—…(C)being a category 3 offence—for such period, being not less than 3 years, as the court thinks fit;Grounds of Appeal The amended grounds of appeal (the notice of appeal) contain three grounds. First, is that the licence disqualification of 45 months, based on cumulative sentences in respect of the three sets of driving offences, was manifestly excessive. Second, the Magistrate failed to give adequate consideration to the principle of totality. Third, the Magistrate failed to ensure that the proceedings were fair to the appellant who was unrepresented at the time. The first two grounds of appeal are linked and I will therefore consider them together.Totality and Manifestly Excessive Sentencing principles The principle of totality is well accepted and is a fundamental principle of sentencing. The principle has been articulated in both the High Court and in this Court. The High Court in Mill v The Queen[3] approved of the description of the principle of totality in Thomas, Principles of Sentencing (2nd ed, 1979) at pp 56-57 (omitting references):The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [‘]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.[3] (1988) 166 CLR 59.