THOMPSON v Police - [2007] SASC 370

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
THOMPSON v POLICE
[2007] SASC 370
Judgment of The Honourable Justice Bleby (ex tempore)
16 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence – appellant pleaded guilty to offences of driving dangerously to escape police pursuit, aggravated assault, resisting police, driving disqualified and failing to comply with a request to submit to a breath analysis test – offences arose out of single incident – separate penalties imposed for each offence but ordered to be served concurrently with the effect that the appellant was to serve four months imprisonment – whether Magistrate erred in failing to suspend sentence of imprisonment – Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 19AC, 23; Summary Offences Act 1953 (SA) s 62; Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) ss 46, 47E, 47J, referred to.
Police v Cadd (1997) 69 SASR 150; Sheean v Police (1999) 202 LSJS 410; Khammash v Police (1999) 29 MVR 561; Maxwell v Police (1998) 102 A Crim R 374; Pennell v Police [2000] SASC 355; Dinsdale v The Queen (1999) 202 CLR 321; House v The King (1936) 55 CLR 499, considered.

THOMPSON v POLICE
[2007] SASC 370
Magistrates Appeal: Criminal
BLEBY J.

This is an appeal against sentence. On 8 August 2007 the appellant pleaded guilty to and was convicted of the following offences:
1 One aggravated offence of driving dangerously to escape police pursuit contrary to s 19AC(1) of the Criminal Law Consolidation Act1935 (SA). The maximum penalty for that offence is five years imprisonment. The Magistrate imposed a penalty of four months imprisonment and disqualified the appellant from holding or obtaining a driver’s licence for a period of two years.
2 One offence of aggravated assault contrary to s 23 of the Criminal Law Consolidation Act. The maximum penalty for that offence is three years imprisonment. The Magistrate imposed a penalty of two months imprisonment.
3 One offence of resisting police contrary to s 62 of the Summary Offences Act1953 (SA). The maximum penalty for that offence is a fine of $10,000 or imprisonment for two years. The Magistrate convicted the appellant of that offence without penalty.
4 One offence of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the Motor Vehicles Act1959 (SA). For a first offence the maximum penalty is imprisonment for six months and for a subsequent offence, imprisonment for two years. The penalty imposed by the Magistrate was imprisonment for two months.
5 One offence of failing to comply with a request to submit to a breath analysis test contrary to s 47E of the Road Traffic Act 1961 (SA). For a second offence, which this was, the penalty is a fine of not less that $1,500 and not more…

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

AGLC: THOMPSON v Police [2007] SASC 370
Case: [2007] SASC 370
Decision Date: 16 October 2007

CaseChat Overview and Summary

In the matter of Thompson v Police, the appellant appealed against the sentence imposed by the Magistrates Court following his guilty plea to various serious offences. The offences included driving dangerously to escape police pursuit, aggravated assault, resisting police, driving while disqualified, and failing to comply with a request to submit to a breath analysis test. These offences stemmed from a single incident where the appellant evaded police and subsequently resisted arrest. Despite the imposition of separate penalties for each offence, they were ordered to be served concurrently, resulting in a total sentence of four months imprisonment.

The central legal issue before the court was whether the Magistrate erred in not suspending the sentence of imprisonment. The appellant argued that the sentence was unduly harsh and that there were substantial and compelling circumstances that warranted a non-custodial sentence. The court had to determine whether the Magistrate properly considered all relevant factors and whether the sentence imposed was appropriate in the circumstances.

In dismissing the appeal, the court found that the Magistrate had correctly considered the circumstances and the objectives of sentencing, including deterrence and denunciation. The court held that the Magistrate was not in error in imposing a custodial sentence and that the sentence was neither manifestly excessive nor inadequate. The court found that the Magistrate had balanced the relevant factors appropriately and concluded that there were no substantial and compelling circumstances that would justify a departure from the custodial sentence imposed. The appeal against the sentence was therefore dismissed.

Orders