W, NJ v Police - [2009] SASC 269

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
W, NJ v POLICE
[2009] SASC 269
Judgment of The Honourable Justice Sulan
3 September 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS - FIRST OFFENDERS AND JUVENILE OFFENDERS
Appeal against sentence - appellant pleaded guilty to offences of driving while disqualified contrary to s 91 Motor Vehicles Act 1959 (SA) and to failing to give way to an oncoming vehicle at traffic lights, contrary to r 62(c) of the Australian Road Rules - Magistrate sentenced appellant to 14 days' detention, suspended upon her entering into six-month good behaviour bond for the offence of driving whilst disqualified - appellant a first offender - whether sentence manifestly excessive - whether Magistrate erred in characterising offending as contumacious - consideration of personal circumstances of appellant - consideration of factors relevant in sentencing youths - consideration of factors relevant in sentencing offenders suffering from psychological or psychiatric condition.
Held: Appeal allowed - sentence of Magistrate set aside - offending could not be characterised as contumacious in circumstances.
Motor Vehicles Act 1959 (SA) s 91; Young Offenders Act 1993 (SA) s 3; Criminal Law (Sentencing) Act 1988 (SA) s 3A, referred to.
Police v Cadd & Ors (1997) 69 SASR 150; Johns v Police (Unreported, 24 June 1998, Judgment No. S6729); Valentincic v Police (Unreported, 4 December 1997, Judgment No. S6521; Bates v Police (1997) 70 SASR 66; Harshazi v Police (1998) 71 SASR 316; Sheean v Police (1996) 106 A Crim R 38; Nash v Police [2009] SASC 112; Hendy v Police (2008) 256 LSJS 30; Schulze v S (1995) 180 LSJS 371; TCN v Police [2002] SASC 409; R v Tomlinson [2007] SASC 222, considered.

W, NJ v POLICE
[2009] SASC 269
Magistrates Appeal
SULAN J.
Introduction

This is an appeal against sentence.
On 14 August 2008, the appellant drove a motor vehicle whilst she was disqualified from holding or obtaining a driver’s licence, contrary to s 91 of the Motor Vehicles Act 1959 (SA). The maximum penalty for the offence is six months’ imprisonment for a first offence and two years’ imprisonment for a subsequent offence. The appellant was also charged with failing to give way to an oncoming vehicle at traffic lights, contrary to r 62(c) of the Australian Road Rules.
At the time of the offending, the appellant was disqualified from holding or obtaining a driver’s licence, pursuant to an order against her learner’s permit imposed by the Registrar of Motor Vehicles. The appellant is a first offender.
Turning to the subject matter of this appeal. On 14 August 2008, at about 12.42 am, the appellant was turning right from Torrens Road into South Road at Croydon when she failed to give way to an oncoming vehicle. The appellant was driving to a takeaway food outlet to purchase food. The appellant was 17 years of age at the time of the offending.
The appellant pleaded…

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 W, NJ v Police

Details

AGLC: W, NJ v Police [2009] SASC 269
Case: [2009] SASC 269
Decision Date: 3 September 2009

CaseChat Overview and Summary

In the matter of W, NJ versus Police, the appellant appealed against a sentence imposed by a Magistrate following a guilty plea to charges of driving while disqualified and failing to give way to an oncoming vehicle at traffic lights. The appellant, a first offender, was sentenced to 14 days' detention, which was suspended upon her entering into a six-month good behaviour bond for the offence of driving while disqualified. The appeal focused on whether the sentence was manifestly excessive and whether the Magistrate erred in characterising the offending as contumacious.

The central legal issues before the court were whether the sentence imposed was appropriate given the appellant's status as a first offender, her young age, and her psychological condition. Additionally, the court had to determine if the Magistrate erred in characterising the offending as contumacious, which would have justified a harsher sentence. The court considered factors relevant in sentencing juveniles and offenders suffering from psychological or psychiatric conditions.

The court found that the sentence was not appropriate for the appellant, particularly given her age, background, and psychological condition. The court emphasised that for individuals whose mental illness contributes to their offending behaviour, the importance of general and personal deterrence is lessened. The court held that the appellant's mental illness, which had not been properly diagnosed or treated, was a significant mitigating factor. Consequently, the appeal was allowed, and the sentence imposed by the Magistrate was set aside. In its place, the appellant was directed to enter into a bond to be of good behaviour for 12 months, subject to specific conditions including supervision, counselling, and participation in any programs or activities as directed by the supervising officer.

This detailed consideration of the appellant’s circumstances resulted in a sentence that sought to address both the needs of the community and the appellant’s personal needs, reflecting a balanced approach to sentencing in cases involving juvenile offenders with psychological conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SULAN J

As to personal deterrence, for a person such as the appellant who suffers from a mental illness, I refer to my judgment in R v Tomlinson[19] (with which Bleby J agreed):The relevance and weight to be given to general and personal deterrence will vary from case to case. However, in circumstances which a person’s mental illness is causative of his offending, that is a feature which lessens the importance of general and personal deterrence in the sentencing process. This is particularly so if the person’s mental illness has not been diagnosed or if there has been a failure to treat or address properly a person’s mental illness.[19] [2007] SASC 222, [52].Conclusion This was the appellant’s first offence. In my view, a sentence of detention, albeit suspended, is not appropriate, having regard to the appellant’s age, background and, in particular, her psychological condition. The threat of an order for detention in the case of this appellant places an unnecessary burden upon the appellant and her family, having regard to her psychological profile. I would allow the appeal. The sentence imposed by the Magistrate is set aside. In lieu thereof, the appellant is to enter into a bond to be of good behaviour for 12 months upon conditions that she:(1)come up for sentence if called upon;(2)be under the supervision of an officer of the Department of Families SA and undergo counselling, or psychological or psychiatric treatment, as directed by that officer;(3)participate in any programs, projects or activities as directed by the supervising officer.

Ratio Decidendi

Legal Principle Established

Established by: SULAN J

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