TURNEY v Police - [2010] SASC 282

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
TURNEY v POLICE
[2010] SASC 282
Judgment of The Honourable Justice White (ex tempore)
7 September 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
Appellant pleaded guilty to driving without a licence on four separate occasions - sentenced to six months imprisonment and a series of licence disqualification - appellant submitted that the sentence was manifestly excessive, and that the Magistrate erred in his application of s 18A of the Criminal Law (Sentencing) Act 1988 (SA).
Held: Appeal upheld - sentence manifestly excessive - Magistrate erred in the application of s 18A by imposing a single sentence of imprisonment, but separate periods of licence disqualification - appellant re-sentenced.
Motor Vehicles Act 1959 (SA) s 74; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 9; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Road Traffic Act 1961 (SA) s 46, s 47B, referred to.
The Queen v Capalbo [2005] SASC 47, distinguished.
Valenzuela v Police (1998) 70 SASR 275, discussed.
House v The King (1936) 55 CLR 499; S, JC v Police (2007) 96 SASR 432; O, C v Police [2007] SASC 346; A, MC v Police (2008) 102 SASR 151; Oliver v Police [2004] SASC 8; R v Thach and Chau [2010] SASCFC 16, considered.

TURNEY v POLICE
[2010] SASC 282
Magistrates Appeal (ex tempore)

WHITE J. The appellant was sentenced for four offences of driving a motor vehicle while unlicensed. Each offence was a contravention of s 74(2) of the Motor Vehicles Act 1959 (SA) (MVA), as the appellant has never been licensed in this State or elsewhere to drive a motor vehicle on a road. An offence against s 74(2) is the more serious of the two offences established by s 74 of the MVA.
The offences were committed on 17 and 23 March, 28 June and 28 August 2009. All four offences were committed in Naracoorte, where the appellant lives, and all were committed during daylight hours. One offence involved the use of a motorcycle and three, the use of a car.
The Magistrate in Mount Gambier sentenced the appellant to a single sentence of imprisonment for six months. He directed that the sentence to be taken to have commenced on 31 March 2010, that being the date upon which the appellant was taken into custody in consequence of his failure to answer his bail at an earlier hearing. In addition, the Magistrate imposed separate licence disqualifications in relation to each offence. Disqualifications for a period of three years were imposed in relation to each of the first three offences and a disqualification for three years and six months in respect of the fourth. The Magistrate ordered that all of the disqualifications should commence on the day of…

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: TURNEY v Police [2010] SASC 282
Case: [2010] SASC 282
Decision Date: 7 September 2010

CaseChat Overview and Summary

The appeal in this matter was brought by the appellant, Turney, against a sentence imposed by a Magistrates Court in South Australia. The appellant had pleaded guilty to four separate offences of driving without a valid licence. The court sentenced him to six months imprisonment and imposed a series of disqualifications from obtaining a driver's licence for a period of two years. The appellant challenged the severity of the sentence, contending that it was manifestly excessive. Additionally, he argued that the Magistrate had erred in applying section 18A of the Criminal Law (Sentencing) Act 1988 (SA) by imposing a single sentence of imprisonment and separate periods of licence disqualification.

The court was required to determine whether the sentence was manifestly excessive and whether the Magistrate had correctly applied section 18A of the Act. The appeal hinged on whether the sentence was appropriate in all the circumstances and whether the Magistrate had correctly exercised his discretion under the statute. The court had to consider the nature and seriousness of the offences, the appellant’s criminal history, and the sentencing principles applicable under South Australian law.

In delivering the judgment, the court found that the sentence was indeed manifestly excessive. The court noted that while the offences were serious, the imposition of a single six-month sentence of imprisonment, combined with the extended licence disqualification, was disproportionate. The court also held that the Magistrate had erred in applying section 18A by imposing a single custodial sentence and separate licence disqualifications. The court determined that the correct approach required the imposition of concurrent sentences for imprisonment and licence disqualification. As a result, the appeal was upheld, the sentence was deemed manifestly excessive, and the appellant was re-sentenced.

The court ordered that the appellant be re-sentenced, with the custodial sentence and the licence disqualification periods to run concurrently. The court did not alter the substantive sentence but modified the manner in which it was to be served, ensuring that the overall punishment remained just and proportionate to the offences committed.

Orders