SZADZIEWICZ v Police

[2010] SASC 288

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

SZADZIEWICZ v POLICE

[2010] SASC 288

Judgment of The Honourable Justice Anderson (ex tempore)

1 October 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appellant seeks to appeal the period of driver's licence disqualification imposed for offence of driving in a manner dangerous - magistrate imposed the minimum disqualification period of 12 months.

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

Appellant seeks extension of time in which to appeal - appeal brought due to change in personal circumstances - granting of extension opposed by respondent - extension granted.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

Appellant relied on fact of commencing apprenticeship as new evidence - driver's licence required for transport to various worksites - appellant commenced the apprenticeship in April this year - magistrate took into account effect of disqualification on appellant's employment.

Held: Magistrate did not err - no reasons exist which would allow the mandatory minimum penalty to be reduced - appeal dismissed.

Road Traffic Act 1961 (SA), referred to.

SZADZIEWICZ v POLICE
[2010] SASC 288

Magistrates Appeal:  Criminal

1. ANDERSON J.     The appellant appeals against a penalty imposed upon him by a magistrate on 20 January 2010 pursuant to the Road Traffic Act 1961 (SA).

2. The magistrate on that date disqualified him from holding or obtaining a driver’s licence for 12 months. The offending involved driving in a dangerous manner. It was a case of road rage. I will not go into the details; they are set out in the magistrate’s brief reasons and the Police Apprehension Report.

3. The penalty imposed by the magistrate was the mandatory minimum penalty in the circumstances.

4. The appellant seeks to have the period of disqualification reduced because he needs his licence for his work as an apprentice employed by Mtec Plumbing.

5. The appeal is out of time. Effectively the appellant wishes to raise the new circumstances of his employment which commenced in April this year.

6. As I have indicated, the penalty imposed by the magistrate was the minimum. No error has been shown in the approach taken by the magistrate. No application was made at the time the appellant appeared before the magistrate to have the offending characterised as trifling so as to allow the mandatory minimum penalty to be reduced.

7. Even if I regard the facts of the appellant’s subsequent employment in April as new evidence, the circumstances of the offending do not convince me that this is a case in which the penalty should be reduced.

8. As I have indicated, it was a road rage incident in which an innocent victim was affected. The victim’s car was completely destroyed and he was injured to the extent that he spent time in hospital and then had to take time off work.

9. The appellant’s licence was already disqualified at the time of sentencing because of a previous non-payment of fines.

10. The magistrate made the licence disqualification for this offending concurrent with the disqualification for the non-payment of fines. She took into account the fact that the appellant needed his licence for his employment, and she was lenient in imposing the minimum period of disqualification. Her Honour said, “You were lucky that no-one was hurt or killed”. I agree with these comments. It was a serious offence.

11. I therefore grant an extension of time to the appellant. I regard the circumstances of his employment in April as new evidence. But for the reasons I have discussed, I dismiss the appeal.