Thorley v Police - [2009] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THORLEY v POLICE
[2009] SASC 4
Judgment of The Honourable Justice Nyland
15 January 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
Appeal against sentence - plea of guilty to exceeding speed limit - whether offence could be considered trifling - appellant argued that the offence involved no significant risk in safety terms - typical offence of its kind - Magistrate correctly held that the offence was not trifling - appeal dismissed.
Australian Road Rules 1999 Rule 20; Criminal Law Sentencing Act 1988 (SA) s 15(1)(a); Motor Vehicles Act 1959 (SA) s 98B(4); Road Traffic Act 1961 (SA) s 47B(3)(b), referred to.
Siviour - Ashman v Police (2003) 85 SASR 23, applied.
Thorley v Police S4651 (Unreported Judgment delivered on 5 July 1994), considered.

THORLEY v POLICE
[2009] SASC 4
Magistrates Appeal

The appellant was charged on complaint that on 12 February 2008 at Pinnaroo he drove his motor vehicle on the Mallee Highway in excess of the speed limit of 110 kilometres per hour, contrary to Rule 20 of the Australian Road Rules 1999. It was alleged that his speed was about 124 kilometres per hour. On 25 August 2008, the appellant appeared before a Magistrate in the Berri Magistrates Court and pleaded guilty to the charge. The appellant, who was unrepresented, relied on s 15(1)(a) of the Criminal Law Sentencing Act 1988 to submit that, notwithstanding his plea of guilty, the Magistrate should find the offence so trifling that the charge should be dismissed without a conviction being recorded.
In support of this submission, the appellant gave evidence on oath, during which he said:
The Mallee Highway at the point where the offence occurred was straight, well sealed with reasonable shoulders and at that point was totally free of intersections or driveways. Visibility was excellent and the road surface was dry. At the time of the alleged offence my vehicle was the sole occupant of either lane in the relevant area. The approaching police wagon was far enough away, when the lights were activated that I was parked by the roadside before he passed. The stopping distance was therefore significantly within the hazard free sight of distance. The slightly elevated speed did not increase the potential for loss of control given the state of the road surface. The design and condition of the vehicle, the nature and state of the driver, about 3 million kilometres driven mostly rural without causing a crash. It was well within adhesion and control. My speed in the circumstances was demonsterously safer than driving at the speed limit and passing another vehicle.
Having considered the evidence of the appellant, the learned Magistrate declined to find the offence was trifling. He said:
The defendant here deliberately breached…

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 Thorley v Police

Details

AGLC: Thorley v Police [2009] SASC 4
Case: [2009] SASC 4
Decision Date: 15 January 2009

CaseChat Overview and Summary

The matter under consideration is an appeal by Thorley against a sentence imposed following a plea of guilty to exceeding the speed limit. The appeal was heard and dismissed by the Supreme Court of South Australia. The central issue before the court was whether the offence committed by Thorley could be categorised as trifling, which would have implications for the sentencing process under the relevant legislation.

The court was tasked with determining the criteria that constitute a trifling offence and whether Thorley's speeding incident met these criteria. The appellant argued that the offence involved no significant risk in terms of safety and was typical of its kind, suggesting that it should be considered trifling. However, the Magistrate who originally heard the case had ruled that the offence was not trifling. The court needed to assess whether the Magistrate's decision was correct and whether there was any basis to interfere with the exercise of the Magistrate's discretion.

In delivering its judgment, the Supreme Court held that the Magistrate correctly determined that the offence was not trifling. The court examined the nature of the offence and the circumstances surrounding it, concluding that the appellant's speeding did not fit the definition of a trifling offence as it did not involve minimal risk or typical characteristics of such offences. Consequently, the appeal was dismissed, affirming the decision of the Magistrate.

Orders