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Wagnitz v Police

Wagnitz v Police

Case [2023] SASC 94 22 June 2023

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
WAGNITZ v POLICE
[2023] SASC 94
Judgment of the Honourable Justice McDonald
22 June 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
The appellant pleaded guilty in the Magistrates Court sitting at Mount Barker to the offences of driving disqualified, hindering an authorised officer, driving unregistered, driving uninsured, and driving with a defaced number plate. In the commission of these offences, the appellant also breached a good behaviour bond, the terms of which included a sentence of imprisonment of 18 days be suspended for one year on the condition that the appellant be of good behaviour during that period. The Magistrate ordered that the appellant serve that term and imposed a further sentence of 21 days imprisonment and a $500 fine, to be served cumulatively resulting in an overall sentence of 39 days imprisonment.
It is against both sentences that the appellant seeks to appeal, on the basis that the Magistrate erred in revoking the suspended sentence bond, contending that proper grounds existed to excuse the breach, and that the further sentence of 21 days imprisonment was manifestly excessive.
Held, dismissing the appeal, that the Magistrate did not err in finding that there were no proper grounds to excuse the breach, and that the further sentence of 21 days imposed by the Magistrate was not manifestly excessive.
Motor Vehicles Act 1959 (SA) ss 9, 91, 102, 47D; Road Traffic Act 1961 (SA) s 41M; Sentencing Act 2017 (SA) s 114, referred to.
Coombe v Douris (1987) 47 SASR 324; House v King (1936) 55 CLR 499; Lowndes v The Queen (1999) 195 CLR 665; Norman v Lovegrove (1986) 40 SASR 266; Police v Cadd (1997) 69 SASR 150; Police v Chilton (2014) 120 SASR 32; Police v Heritage (2019) 135 SASR 1; Police v Nissen (2014) 120 SASR 50; Police v Peel (2021) 137 SASR 584; R v Buckman (1988) 47 SASR 303; R v Bui (2016) 125 SASR 137; R v Gannon (2009) 103 SASR 398; R v Ossitt [2011] SASCFC 23; R v Smith (2014) 118 SASR 487; R v Smith [2014] SASCFC 98; R v Wilton (1981) 28 SASR 263; Wittwer v Police [2004] SASC 226, considered.

WAGNITZ v POLICE
[2023] SASC 94
Magistrates Appeal: Criminal
McDONALD J.

Mr Wagnitz pleaded guilty in the Magistrates Court sitting at Mount Barker to the offences of driving disqualified,[1] hindering an authorised officer,[2] driving unregistered,[3] driving uninsured,[4] and driving with a defaced number plate.[5] In committing these offences Mr Wagnitz also breached a good behaviour bond. The terms of that bond were that a sentence of imprisonment of 18 days was suspended for one year on the condition that Mr Wagnitz be of good behaviour for that period. Mr Wagnitz admitted the breach of that bond and became…

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: Wagnitz v Police [2023] SASC 94
Case: [2023] SASC 94
Decision Date

CaseChat Overview and Summary

The appeal in Wagnitz v Police was brought by the appellant, Mr Wagnitz, against the sentence imposed by the Magistrates Court sitting at Mount Barker. Mr Wagnitz had pleaded guilty to the offences of driving disqualified, hindering an authorised officer, driving unregistered, driving uninsured, and driving with a defaced number plate. Additionally, he had breached a good behaviour bond, which resulted in him being liable to serve 18 days imprisonment. The Magistrate ordered that Mr Wagnitz serve that term and imposed a further sentence of 21 days imprisonment and a $500 fine, resulting in an overall sentence of 39 days imprisonment. The appeal was brought on the basis that the Magistrate erred in revoking the suspended sentence bond, contending that proper grounds existed to excuse the breach, and that the further sentence of 21 days imprisonment was manifestly excessive.

The court found that the Magistrate did not err in finding that there were no proper grounds to excuse the breach. The court held that the grounds for excusing a breach of a good behaviour bond are confined to the nature and circumstances of the breach, and do not extend to the personal circumstances of the offender or to the circumstances occurring after the breach. The court also found that the further sentence of 21 days imprisonment was not manifestly excessive. The court held that the sentencing Magistrate is better placed than the appellate court to determine the appropriate length of a sentence for offences of this nature.

The appeal was dismissed, and the sentence imposed by the Magistrate was upheld.

Orders