Thung Son v Police - [2006] SASC 220

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
THUNG SON v POLICE
[2006] SASC 220
Judgment of The Honourable Justice White (ex tempore)
21 July 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
Appeal against order of licence disqualification - appellant convicted of one count of driving with the prescribed concentration of alcohol in his blood, contrary to s 47B of the Road Traffic Act 1961 - magistrate imposed the minimum fine and disqualified the appellant from holding or obtaining a driver's licence for the minimum period required by s 47B.
Held: it could not be said that the circumstances of the offence were trifling so that the period of disqualification could be reduced or mitigated pursuant to s 47B(3) - extension of time within which to institute the appeal refused.
Road Traffic Act 1961 (SA) s 47B; Supreme Court Rules r 97.04; Criminal Law (Sentencing) Act 1988 (SA) s 17, referred to.
Przybytniak v Police (1998) 100 A Crim R 196; Wu v Police [2006] SASC 48; Janz v Woolven; Lush v Hayes (1990) 55 SASR 239; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

THUNG SON v POLICE
[2006] SASC 220
Magistrates Appeal (ex tempore)

WHITE J: This is an appeal against an order of licence disqualification imposed by a magistrate.
The appellant pleaded guilty to the offence of driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act1961(SA) (“the RTA”). He was sentenced for that offence on 21 March 2006. The magistrate imposed a fine of $500 and disqualified the appellant from holding or obtaining a driver’s licence for a period of six months.
The appeal was instituted on 21 June 2006. This was well outside the 14 day period fixed by SCR 97.04 for the institution of such appeals. Thus the appellant needs a lengthy extension of time in which to institute his appeal.
The appellant is self-represented. Without meaning any disrespect at all to him, I think it fair to say that the appellant has an incomplete grasp of the English language. I have offered him an adjournment for the purpose of obtaining the assistance of a translator or interpreter or, for that matter, a lawyer, but because the appellant wishes to have the appeal determined quickly, he has indicated that he is prepared to proceed with the appeal this afternoon. In the ordinary course of events this appeal would have been heard in the August sessions, but I acceded to a request from the appellant that his appeal be heard sooner.
Although the appellant needs an extension of time, I invited the parties to make their submissions as though on the hearing of the appeal itself and indicated that I would give…

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 Thung Son v Police

Details

AGLC: Thung Son v Police [2006] SASC 220
Case: [2006] SASC 220
Decision Date: 21 July 2006

CaseChat Overview and Summary

The defendant, Thung Son, appealed against an order disqualifying his driver's licence following a conviction for driving with the prescribed concentration of alcohol in his blood, a violation of section 47B of the Road Traffic Act 1961. The case was heard in the Supreme Court of South Australia, where the primary focus was on the procedure followed by the magistrate in imposing the sentence, including the fine and the period of disqualification from holding or obtaining a driver's licence.

The central legal issue before the court was whether the magistrate's imposition of the minimum fine and the mandatory minimum period of licence disqualification complied with the relevant statutory provisions and procedural requirements under the Road Traffic Act 1961. The appellant argued that the sentence was not just and equitable, considering the specific circumstances of his case.

The court examined the statutory provisions and the procedural guidelines outlined in the Rules of Court. It determined that the magistrate correctly followed the statutory requirements in imposing the minimum fine and the mandatory minimum period of disqualification. The court found that the sentence was proportionate to the offence and that there were no procedural errors that would warrant a departure from the prescribed minimum penalties. The appeal was, therefore, dismissed.

No further orders were made beyond the dismissal of the appeal.

Orders