THOMPSON v Police - [2009] SASC 150

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
THOMPSON v POLICE
[2009] SASC 150
Judgment of The Honourable Justice Bleby (ex tempore)
21 May 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
Appeal against sentence – appellant convicted and sentenced in the Magistrates Court for three offences committed in a single course of conduct – one offence was a count of driving whilst disqualified – offence found to be contumacious – appellant had two prior convictions for driving whilst disqualified – penalty of seven weeks imprisonment imposed for that offence – whether Magistrate erred in finding the offence was contumacious – whether Magistrate gave adequate reasons for not suspending sentence – whether Magistrate erred in failing to suspend the sentence of imprisonment – Appeal dismissed.
Motor Vehicles Act 1959 (SA) s 98BC, referred to.
Police v Cadd (1997) 69 SASR 150; Long v Police (1998) 72 SASR 515, discussed.
Nash v Police [2009] SASC 112; R v Ivic [2006] SASC 8; Neill v Police [1999] SASC 270; R v Maslen (1995) 79 A Crim R 199, considered.

THOMPSON v POLICE
[2009] SASC 150
Magistrates Appeal

BLEBY J. (Ex tempore) On 24 February 2006 the appellant was convicted of driving with more than the prescribed concentration of alcohol in his blood. He was disqualified from holding or obtaining a driver’s licence for a period of eight months expiring on 24 October 2006.
On 16 May 2006, during the period of disqualification, he drove a motor vehicle on a road (“the first offence”). On 21 August 2006 he was sentenced in the Magistrates Court for the first offence to a period of imprisonment for one month, which sentence was suspended upon his entering into a bond in the sum of $300 to be of good behaviour for 18 months.
By notice received from the Registrar of Motor Vehicles the appellant was again disqualified from holding or obtaining a driver’s licence for a period commencing on 3 September 2008. That disqualification occurred as a result of a number of speeding offences, presumably under s 98BC of the Motor Vehicles Act 1959 (SA). On the first day of that disqualification, 3 September 2008, the appellant again drove whilst he was disqualified (“the second offence”), but in circumstances where the Court accepted that the appellant believed that the period of disqualification began at midnight at the end of that day, whereas in fact it had begun at midnight at the beginning of that day. When the appellant was sentenced for that offence on 30 March 2009 the Magistrate accepted that that offending was not contumacious. The appellant was convicted and fined the sum of $380.
There is no doubt that at the time of the second offence the appellant was fully aware of the consequences of driving while disqualified.
On 10 December 2008, while still subject to…

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 THOMPSON v Police

Details

AGLC: THOMPSON v Police [2009] SASC 150
Case: [2009] SASC 150
Decision Date: 21 May 2009

CaseChat Overview and Summary

The appellant, Mr Thompson, appealed against his sentence in the County Court of Victoria, following a conviction and sentencing in the Magistrates Court for three offences committed in a single course of conduct. The offences included a count of driving whilst disqualified, which was found to be contumacious. Mr Thompson had two prior convictions for driving whilst disqualified, and the Magistrates Court imposed a penalty of seven weeks imprisonment for the contumacious offence. The appeal focused on whether the Magistrate erred in finding the offence was contumacious, whether the Magistrate gave adequate reasons for not suspending the sentence, and whether the Magistrate erred in failing to suspend the sentence of imprisonment.

The court examined the nature and circumstances of the offence, considering the appellant's previous convictions and his deliberate disregard of the law. The court also assessed the adequacy of the reasons provided by the Magistrate for not suspending the sentence. The appeal hinged on the interpretation of the relevant statutory provisions and case law, as well as the principles of sentencing in relation to contumacious driving offences.

The court found that the Magistrate had correctly determined that the driving offence was contumacious, given the appellant's history of similar offences and his blatant disregard for the law. The court further held that the Magistrate had provided sufficient reasons for not suspending the sentence of imprisonment, taking into account the seriousness of the offence and the appellant's previous convictions. Consequently, the appeal was dismissed, and the original sentence was upheld.

In light of the dismissal of the appeal, the original sentence of seven weeks imprisonment for the contumacious driving offence remains in place. The court's decision reinforces the importance of considering the nature and circumstances of the offence, as well as the offender's history, when determining an appropriate sentence for contumacious driving offences.

Orders