Thiele v Police - [2009] SASC 159

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THIELE v POLICE
[2009] SASC 159
Judgment of The Honourable Justice Gray
4 June 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Appeal against sentence and length of licence disqualification - defendant and appellant convicted of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA) - defendant sentenced to imprisonment for eight months - seven months of term suspended on defendant entering good behaviour bond - one month of term to be served in prison - Magistrate disqualified defendant from holding or obtaining driver’s licence for 18 months - whether defendant's conduct close to being in the worst offending category - whether sentencing discretion of Magistrate miscarried.
Held: appeal allowed - Magistrate erred in characterising defendant’s want of care as being close to the worst category - sentencing discretion of Magistrate miscarried - good reason to suspend term of imprisonment - order of Magistrate partially suspending defendant's sentence set aside - sentence of eight months imprisonment wholly suspended on defendant agreeing to enter into good behaviour bond for two years - terms of licence disqualification unaltered.
Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing Act) 1988 (SA) s 38, referred to.

THIELE v POLICE
[2009] SASC 159
Magistrates Appeal
GRAY J:

The facts that lie behind this sentence appeal demonstrate the dangers in everyday road-use. A motorcyclist, travelling within the law, on a clear, dry morning on a country road, died as a result of a collision with a motor vehicle at an intersection. The driver of the motor vehicle was travelling at an appropriate speed, was aware of the give-way sign, slowed down and looked out both to the left and to the right, but failed to see the motorcyclist. There was an explanation. The motorcyclist was wearing black, was riding a black motorcycle and was travelling against a background of dark trees which cast a shadow, partially obscuring and camouflaging the motorcyclist.
This was a tragedy. The motorcyclist’s loved ones have lost a husband, a father, a grandfather and uncle. The driver is married. She and her husband have three children aged from four and a half years to seven months. She is a good mother, wife and an upright citizen who is an outstanding contributor to her rural community. Is the driver’s want of care any more than the everyday experience of a motorist looking but not seeing what is there? Is this the case that calls for the driver to be “locked away”, the subject of an immediate term of imprisonment, or is there a more appropriate approach that may be taken?
On the hearing of this appeal, counsel for the police tendered by consent further evidence. This included a plan of the scene to better assess the defendant’s line of view. Counsel also provided further photographs better depicting the defendant’s line of view. Although these photographs were taken about a year…

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 Thiele v Police

Details

AGLC: Thiele v Police [2009] SASC 159
Case: [2009] SASC 159
Decision Date: 4 June 2009

CaseChat Overview and Summary

The case of Thiele v Police involved the defendant, Thiele, appealing against the sentence and length of licence disqualification imposed by a Magistrate. Thiele was convicted of aggravated driving without due care under section 45 of the Road Traffic Act 1961 (SA) and was sentenced to imprisonment for eight months, with seven months of the term suspended on Thiele entering into a good behaviour bond, and one month to be served in prison. The Magistrate also disqualified Thiele from holding or obtaining a driver’s licence for 18 months. The appeal centred on whether Thiele's conduct was close to being in the worst offending category and whether the sentencing discretion of the Magistrate miscarried.

The court was required to determine if the Magistrate erred in characterising Thiele’s want of care as being close to the worst category of offending, and whether this characterisation justified the partial suspension of Thiele’s sentence. The appeal hinged on the interpretation of the sentencing discretion under section 38 of the Criminal Law (Sentencing) Act 1988 (SA), specifically subsections 2a and 2b, which provide for the partial suspension of a sentence when the term of imprisonment is more than three months but less than one year.

The court found that Thiele's conduct, while serious, did not warrant the characterisation of her offending as being close to the worst category. The court reasoned that the circumstances of the case allowed for the characterisation of Thiele's want of care as an everyday failing, a matter of common human experience. The court held that the sentencing discretion of the Magistrate miscarried in partially suspending Thiele's sentence. The appeal was allowed for the limited purpose of setting aside the order made by the Magistrate partially suspending Thiele’s sentence. The sentence of eight months imprisonment was wholly suspended, subject to Thiele agreeing to enter into a two-year good behaviour bond.

The court concluded that the defendant's personal circumstances gave good reason to suspend the term of imprisonment, thereby enlivening the court's discretion. The terms of the licence disqualification were left unaltered, while the order partially suspending the defendant's sentence was set aside. The defendant’s sentence of eight months imprisonment was wholly suspended, contingent upon Thiele agreeing to enter into a two-year good behaviour bond.

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

The defendant has suffered personally and is subject to an imprisonment order of eight months. It is only suspended because her personal circumstances give rise to good reason to suspend, thereby enlivening my discretion. In these circumstances, the term of imprisonment for eight months should be suspended. Conclusion Having regard to the foregoing, I would allow the appeal for the limited purpose of setting aside the order made by the Magistrate pursuant to section 38(2a) of the Sentencing Act, partially suspending the defendant’s sentence. I am prepared to make an order suspending the sentence of eight months imprisonment. This is subject to the defendant agreeing to enter into a two-year good behaviour bond.

Ratio Decidendi

Legal Principle Established

The further photographs and the plan of the scene confirm the real possibility, if not likelihood that when the defendant looked to her left, she missed seeing the motorcyclist because motorcycle and rider were obscured or camouflaged for the reasons earlier discussed. Counsel for the respondent accepted this proposition. In my view, this allows the characterisation of the defendant’s want of care as being an everyday failing, a matter of common human experience. The defendant’s offending was not close to the worst category of offending. The sentencing discretion of the Magistrate miscarried. Reconsideration of Penalty The Court is empowered to suspend a sentence of imprisonment. Section 38 of the Criminal Law (Sentencing) Act 1988 (SA) relevantly provides:(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—(a) to be of good behaviour; and(b) to comply with the other conditions (if any) of the bond.(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.(2a) However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.(2b) The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.(2c) If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant's ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:(a) remunerated employment;(b) necessary medical or dental treatment for the defendant;(c)averting or minimising a serious risk of death or injury (whether to the defendant or some other person);(d)any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period).(3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished.